S. (A.) v. Refugee Applications Commissioner & Ors [2008] IEHC 221 (17 June 2008)

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Cite as: [2008] IEHC 221

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Neutral Citation: [2008] IEHC 221

    THE HIGH COURT
    2006 1180 JR
    BETWEEN
    A. S.
    APPLICANT
    AND
    THE REFUGEE APPLICATIONS COMMISSIONER,
    THE REFUGEE APPEALS TRIBUNAL,
    THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM,
    THE ATTORNEY GENERAL and IRELAND
    RESPONDENT
    EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 17th day of June 2008
  1. The applicant in this case is a national of the Democratic Republic of the Congo ("DRC"), who was born on 24th January, 1967. She applied for asylum in Ireland on 29th July, 2005. Her claim arises from her alleged membership of the organisation known as CONACO (the Congolese National Convention). The applicant says that she was Secretary-General of that organisation. It is her case that she was arrested in the city of Lubumbashi in the DRC in May 2006, along with other party members. She was, she says, initially held in a detention centre there where she was subjected to ill treatment, including torture and repeated rapes. After a week or thereabouts, she was transferred to Kinshasa, the capital of the DRC, where she was lodged in Makala prison, known as CPKR, which is apparently an acronym for penitentiary and re-education centre. That seems to have been a high security institution.

  2. It is of some significance that the applicant says that she was transferred as part of a group that included some very high profile figures indeed, including Andre Tshombe, who is a son of the politician Moise Tshombe, who in turn was the leader of the Katanga rebellion in the 1960s. The applicant says that the group in which she was transferred comprised 13 men and two women.

  3. The applicant claims that conditions were appalling at the prison in Kinshasa. Food was very limited, even more limited than it had been in the earlier detention centre. She was whipped three times daily, receiving 100 lashes a day, and was again raped on a number of occasions.

  4. The applicant recounts that after just over two months at the prison, she was able to escape with the assistance of one of the prison guards. When she made her way over the prison wall, her father and another relative were waiting and she then made her escape from Kinshasa and from the DRC, dressed as a nun. She flew first to Kenya, from there to Amsterdam, and, ultimately, to Ireland. She apparently travelled on a false passport which she says that she returned to the agent who had supplied it, by post, following her arrival.

    5. Procedural Background
  5. The applicant's claim for asylum was unsuccessful at first instance before the Office of the Refugee Applications Commissioner ("ORAC") and on appeal before the Refugees Appeal Tribunals ("RAT"). Both of these decisions are sought to be challenged in the course of the present proceedings.

    6. Procedural Issue: Extension of Time
  6. The challenge to the ORAC recommendation/decision gives rise to some procedural questions. The decision is dated 16th January, 2006, but the challenge was commenced only on 3rd October, 2006 - some eight months later or thereabouts -notwithstanding that the time limit is fixed by statute at 14 days for the institution of proceedings.

  7. No satisfactory explanation for the delay has been advanced. I would find it very difficult to find that there was good and substantial reason for extending time. However, in a situation where there is a very considerable overlap between the grounds relied on to challenge the ORAC decision/recommendation and the grounds relied in respect of the challenge to the RAT decision, and where those grounds have been opened, I prefer to decide the case other than by refusing to extend time.

    8. I. The Challenge to the ORAC Decision/ Recommendation
  8. This was a case where the applicant exercised her right to appeal. A detailed Notice of Appeal was submitted and an RAT oral hearing held, at which the applicant was represented by counsel. Until the decision of the RAT issued - a decision which, of course, was unfavourable to the applicant - there was no attempt to commence judicial review proceedings in respect of the initial ORAC decision/recommendation and, indeed, it does not seem that any such proceedings were even threatened.

  9. The question of whether there remains extant a decision of ORAC capable of being challenged after there has been a concluded hearing before the RAT has been considered in a number of cases. There are a number of decisions that suggest that, in that situation, no extant decision survives and, instead, that the recommendation of ORAC is subsumed or merged into the decision of the RAT. Decisions such as those of Smyth J. in Savin v The Minister for Justice, Equality and Law Reform (unreported, High Court, 7th May, 2002); MacMenamin J. in Okungbow v The Refugee Appeals Tribunal & Ors (unreported, High Court, June 8th, 2005) and Croitroriu v The Refugee Appeals Tribunal & Ors [2005] IEHC 476; and Hanna J. in Rusu v The Refugee Applications Commissioner & Ors (unreported, High Court, 26th May, 2006) are to that effect.

  10. That line of cases also receives some support from an obiter dictum of Hardiman J. in the case of GK v The Minister for Justice, Equality and Law Reform and Others [2002] 2 IR 418. However, the most elaborate consideration of this area is probably that of Finlay Geoghegan J. in Adan v The Refugee Applications Commissioner and the Refugee Appeals Tribunal [2007] IEHC 54. She concluded that there remained extant a decision, which therefore was potentially capable of being challenged. I have previously taken the view in the context of a leave application that given this divergence of approach, it is substantially arguable that the position is as held by Finlay Geoghegan J., and I propose to take that approach again today.

  11. However, even Adan [2007] IEHC 54, which is the most favourable decision from an applicant's perspective, imposes considerable restraints on an applicant who has proceeded to an appeal which has actually been determined. In that case, Finlay Geoghegan J. commented that:-

    12. "The normal position must be that where an appeal is determined the applicant has gone too far and the High Court will not subsequently interfere with the first instance decision by way of judicial review. While the Court retains a discretion to do so, it should only exercise its discretion to grant certiorari of a decision which has been the subject of a decided appeal where there exists special circumstances which make such late interference necessary to do justice for the parties."

  12. That approach of Finlay Geoghegan J. was endorsed by Dunne J. in the case of R.T.T. v The Minister for Justice, Equality and Law Reform & Ors [2007] IEHC 168.

  13. In this case, the criticism is that the ORAC officer's assessment of credibility was flawed. The dissatisfaction, initially, with the assessment of credibility gave rise to a detailed Notice of Appeal. It is striking that the grounds set out in the notice of appeal are, in a number of respects, remarkably similar to the issues canvassed in the course of the present proceedings. It seems clear, therefore, that the areas of criticism were capable of being raised by way of appeal. Indeed, not only that they were capable of being raised by way of appeal, but they were in fact raised and argued on the appeal and considered.

  14. In the circumstances, I am quite satisfied that no special circumstances exist such as would justify the Court in proceeding to grant an Order of Certiorari. Rather, what Finlay Geoghegan J. describes as "the normal situation" applies, which is that where an applicant goes to appeal, as this applicant has gone, that the High Court should not interfere with the decision at first instance.

    15. II. The Challenge to the RAT Decision
  15. The RAT decision was grounded in adverse findings in relation to credibility. The conclusions of the Tribunal Member in relation to credibility are set out in a number of numbered paragraphs. The challenge today is, of course, couched in the language of judicial review, referring, for example, to a breach of Wednesbury principles. However, it seems to me that the applicant has at times risked straying into the area of an appeal and that, at times, there has been what amounts to an invitation to this Court to substitute its views for those of the RAT member.

  16. There are very many decisions of this Court which have stressed that it must not be tempted into substituting its own views in relation to the assessment of credibility for that of the Tribunal Member. This is because the assessment of credibility is, by statute, a matter for the RAT. It is the Tribunal Member who has had the advantage of hearing the applicant and seeing how the applicant responds to issues raised and questions asked and answered. Having such a tool, the RAT member is at a considerable advantage and, not having such a tool available to it, this Court is greatly disadvantaged. That fact, perhaps, reinforces the general reluctance of a Court dealing with a judicial review of a tribunal.

  17. In criticising the approach to credibility and the conclusions arrived at by the Tribunal Member, the applicant points to a number of elements of the evidence which she says were supportive of her position and which did not receive sufficient or, indeed, any attention. These included the fact that she had introduced a birth certificate; that she had produced a party membership card, or, perhaps more accurately, a certificate as to her appointment; that the account she gives of prison conditions are consistent with generally available country of origin information; and that she presented a medical report from an Irish General Practitioner, which, it is said, is strongly corroborative of her account of having been ill-treated and having sustained injury.

  18. Conversely, the Tribunal Member is criticised for attaching too much attention to what are said to be peripheral issues. In particular, criticism is placed on the emphasis that - it is said - are placed on two issues which are peripheral, these two issues being first, the extent of the applicant's knowledge, or the lack thereof, in relation to the other persons with whom she was transferred to Kinshasa; and secondly, the question of the manner of her escape from the high security prison.

  19. In sum, therefore, there are two primary bases for the present challenge, which I would summarise as being:

    20. a. The Assessment of Credibility, and

    b. The Tribunal Member's alleged failure to take into account factors favourable to the Applicant.

  20. I will deal with each of these in turn.

    21. (a) The Assessment of Credibility
  21. The issue about the co-detainees arises in these circumstances. At the ORAC stage, the applicant was asked to detail the occupations of her co-detainees. She listed a number of occupations, including trader, businessman, teacher, typist and so on. This was a matter which ORAC considered significant, because she had been asked whether her co-detainees and co-transferees were military personnel and responded that they were not, listing the several occupations that I have referred to. However, country of origin information available to ORAC indicated that a majority of transferees were military officers. In passing, I should add that the country of origin information was also to the effect that the transferees were male, which presents obvious difficulties for the applicant' account.

  22. It appears that at the RAT oral hearing, when asked whether she knew her co-detainees' occupations, she replied "no". At the hearing in the present proceedings, it has been indicated that there may have been a degree of confusion involving counsel, the applicant and the Tribunal Member, perhaps attributable to the fact that the applicant was giving her evidence with the assistance of a French interpreter. However, that notwithstanding, that the Tribunal Member would be keenly interested is not at all surprising and his conclusion that there appeared to be an attempt to reconstruct her evidence is, in the circumstances, an understandable conclusion.

  23. Insofar as the question of the applicant's escape is concerned, country of origin information indicated that escapes from custody, through bribery, was indeed possible, though the country information added that escape through bribery was more difficult in the case of a high security institution, and more particularly so in the case of the facility in Kinshasa where the applicant was held.

  24. The Tribunal Member's conclusion that the applicant's account of her escape is implausible is criticised. It is suggested that the Tribunal Member's conclusion fails to have full regard to the country of origin information to which I have referred, which indicates that there is, in general, a low level of effective security. However, that argument in turn does not address the fact that the version of events given by the applicant was that she was one of a select group of high profile individuals, transferred to a high security institution following the direct intervention of President Kabila.

  25. In my view, in considering the account of the escape given to be implausible, the Tribunal Member was not engaging in conjecture or impermissible speculation but, rather, was weighing, assessing and drawing inferences. There can be no basis whatever for suggesting that the conclusion reached was irrational.

  26. While those are the areas that have been the principal focus of criticism, they have not been alone. The Tribunal Member concluded that the applicant's claim that her party had seven offices but only 100 members was implausible. That conclusion, too, is criticised as speculation. I confine myself by saying that the Tribunal Member would not be alone in regarding it as improbable that a party with 100 members in a country as vast as the DRC would have seven offices. Certainly, the Tribunal Member's conclusion in that regard would not remotely be described as irrational.

    27. (b) Failure to take into account evidence favourable to the Applicant
  27. Aside from her criticism of the Tribunal Member's criticism, the applicant also contends that the Tribunal Member erred by failing to take into account evidence and factors favourable to the applicant.

  28. Of these, perhaps the most significant is the medical report that I have mentioned. The applicant had submitted a report - dated 6th June, 2006 - from a GP in Cork, which referred to multiple scarring on her upper and, especially, lower limbs. The Doctor then commented that "[t]hese scars would support her claim of torture". The Tribunal Member commented that:-

    29. "In the light of the conclusion that she has fabricated her claim, the Tribunal is unable to comment on the medical report."
  29. In my view, that observation has to be seen against a background where the Tribunal Member had already referred at least twice to the medical reports and to the fact that the medical report had been considered by him in the light of the Istanbul Protocol, which is a document designed to assist those whose task it is to consider whether persons stating that they have been tortured had in fact been tortured, and it contains what is essentially a scale to which doctors can have reference in indicating how strong they regard the medical evidence to be.

  30. It was for the Tribunal Member to decide what weight was to be given to the report. It is clear from the body of the Tribunal Member's decision itself that the report was not ignored but was considered and, having regard to the findings in relation to the applicant's general lack of credibility, was not seen as establishing that she had been tortured or advancing that proposition.

  31. While, as I say, it is for the Tribunal Member to decide the weight to be given to the report, there are factors present which make his conclusion understandable. These include the fact that the applicant had described the very particular and very specific injury that she had sustained when resisting an act of rape, and the medical report makes no reference to this. In addition, the applicant had described the fact that she had been whipped three times daily, over a period of some considerable time, and, again, there is no specific reference to injuries that would appear to be attributable to whippings.

  32. The other documents to which there has been mention made are the birth certificate and the document from the party. In both cases, it may be said that these are of less significance than the medical report. The birth certificate it is of less significance because there is no hint of a suggestion that the Tribunal Member was calling into question the applicant's identity and certainly not her country of origin, though it may be said that perhaps that was in ease of the applicant, in that a different approach had been taken by the ORAC officer, who had indeed called the authenticity of the certificate into question.

  33. Insofar as the party certificate is concerned, the country of origin information available indicated that it was readily possible to obtain documents from members of different political parties. It may be that in that situation, the Tribunal Member was not minded to attach particular significance to a party certificate. In any event, having regard to decisions such as that of Feeney J. in Banzuzi v The Refugee Appeals Tribunal & Ors [2007] IEHC 2, and Dunne J. in A.W.S. v The Refugee Appeals Tribunal & Ors [2007] IEHC 276, there is no obligation on a Tribunal Member to refer to every argument advanced.

  34. Insofar far as the question of prison conditions in Kinshasa is concerned, the point is made that the account given by the applicant of her time in prison is supported by country of origin information and, indeed, it is said to be corroborated by country of origin information. I think it would be more accurate to say that her account was consistent with country of origin information. Certainly, there is an abundance of documentation to suggest that prison conditions in the DRC are appalling. That is a fact that was well appreciated by the Tribunal Member, who referred to reports from NGOs, the U.S. State Department, Amnesty International and the Red Cross.

  35. Still on the question of prison conditions, criticism is made of the Tribunal Member for expressing doubts that the applicant was ever in Makala prison. In fact, what he said was that he was satisfied that she was never in Makala prison. He does that in a situation where he says that he is not going to go into the many inconsistencies with country of origin information that had been put to her. While he does not list what those inconsistencies are, it is possible, I think, to identify what some of them are. I have already referred to the fact that significance was attached to her apparent lack of knowledge in relation to her co-detainees and also to the implausibility of an account of an escape from a high security prison. In addition, the country of origin information records a visit to that specific institution by British diplomats and indicates that, to a very significant extent, prisoners themselves control the prison with presidential guards securing the exits and militaires in charge of each pavilion. While it is not necessarily absolutely incompatible, certainly that does not appear to be what is reflected in the account given by the applicant.

  36. I have referred at this stage to some but not all of the arguments advanced in relation to credibility. However, suffice to say at this stage that I am driven to the conclusion that this is a case where the applicant had an entitlement to appeal, which she exercised. She went to an oral RAT hearing, and she is disappointed at the outcome. Indeed, it is clear from the force with which the submissions are presented that she is bitterly disappointed but whatever her state of disappointment, she cannot turn to this Court in order to secure an alternative view on credibility. It seems to me that there was ample material on which the Tribunal Member could have reached the view that he did. Those are not necessarily confined to the matters appearing in the numbered paragraphs.

  37. All in all, I am satisfied that no substantial grounds have been made out for challenging either decision, and accordingly I must refuse the relief sought.

    38. Approved: Birmingham J.

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