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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> T. -v- Refugee Appeals Tribunal & Anor [2010] IEHC 370 (29 September 2010) URL: http://www.bailii.org/ie/cases/IEHC/2010/H370.html Cite as: [2010] IEHC 370 |
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Judgment Title: T. -v- Refugee Appeals Tribunal & Anor Composition of Court: Judgment by: Clark J. Status of Judgment: Approved |
Neutral Citation Number: [2010] IEHC 370 THE HIGH COURT JUDICIAL REVIEW 2008 847 JR BETWEEN F. T. APPLICANT AND
REFUGEE APPEALS TRIBUNAL (OLIVE BRENNAN) AND THE MINISTER FOR JUSTICE AND LAW REFORM RESPONDENTS JUDGMENT OF MS JUSTICE M. CLARK, delivered on the 29th day of September, 2010 1. The applicant, who claims to be a national of Eritrea, applied for political asylum in Ireland in February 2006. According to her narrative which was remarkable for its lack of detail, her husband was arrested in 2005 and she was instructed by a friend who phoned her, to destroy his papers. While engaged on this task the police came to her home and she too was arrested. She was maltreated by the arresting authorities and detained in a police station and then in a prison where she suffered various forms of ill-treatment including beatings, cigarette burns, sexual assault and rapes over a three month period. When she became unconscious she was taken to hospital where she was treated for a further three months before her brother arranged for her to escape. Her brother paid an agent to make arrangements for her leave Eritrea by bus, foot and boat which brought her from Port Sudan to Ireland. 2. The Refugee Applications Commissioner found that her account was not credible and recommended that she should not be declared a refugee. The vague nature of her answers at interview was detailed and it was found that her inability to give any details of her arrest, detention and ill-treatment was not consistent with her detailed narrative of her escape and travel to Ireland. Reports prepared by a HSE Psychologist which described “somatic symptoms, anxiety, insomnia, social dysfunction and depression” in the applicant were considered not to be “conclusive evidence” of what had occurred to her in Eritrea and it was noted that at interview she seemed a quiet and reserved woman who did not appear to be distressed or upset. 3. The applicant appealed to the Refugee Appeals Tribunal and, of significance to this challenge, she furnished additional medical evidence including a SPIRASI medico-legal report. The examining physician from SPIRASI noted Ms. T’s multiple severe psychological difficulties and her history of maltreatment and multiple rapes at the hands of the police and prison authorities. She told the physician that she was taken to hospital because she had severe nose bleeds and vaginal bleeding and had been unconscious. She says she was given a lot of medication and does not remember a lot of things that happened in prison because she has blanked them out. Physical examination found a very unstable right knee and a large number of scars on her inner thighs and chest. The report states that the very numerous scars on her inner thighs “would be consistent with cigarette burns” and that:-
5. By decision dated the 9th June 2008 the Tribunal affirmed the Commissioner’s recommendation. Following several negative credibility findings the Tribunal Member concluded:-
I have considered the medical and psychological reports submitted on behalf of the Applicant and the sequelae regarding the Applicant’s state of mind, they are not conclusive evidence of that which the Applicant alleges physically happened to her. While medical and psychological experts are professional competent and able to give reports on the sequelae of an Applicant, they are in the same position as that of the Tribunal in that they are unable to state how or when sequelae came about. These reports have to be read not in isolation but in the overall context of the Applicant’s testimony.” 7. The applicant challenges the decision on additional and separate grounds. Initially she was represented before the Tribunal by the Refugee Legal Service (RLS) who made detailed written submissions addressing the findings made by the Commissioner and submitted country of origin information (COI) regarding Eritrea. Shortly before her oral appeal hearing was scheduled to take place, she engaged her current legal representative who made supplementary written submission on the eve of the hearing. Those submissions stated for the first time and in a very unfocussed way that the applicant, by virtue of her status as a failed asylum seeker and her membership of the particular social group of women asylum seekers, would face persecution on return as a failed asylum seeker and as a fugitive. Among the additional COI reports submitted at that stage was an IRCB report of December 2005 which states that “all evidence points to the arrest and mistreatment, including torture, of failed asylum seekers forcibly returned to Eritrea. This is particularly true of those attempting to escape from military service” and cites reports that “that those who were forcibly returned to Eritrea have been mistreated by the government authorities” and that “Eritreans returning from abroad [...] risk arbitrary detention if they return to Eritrea and are suspected of opposing the government - even if they have a foreign passport”. 8. While there is no suggestion that this issue was pursued at the oral hearing, the applicant avers that after she gave evidence at the oral appeal hearing on the 9th January 2008, the Tribunal Member indicated that she was not in a position to hear legal submissions but she invited the applicant’s legal representative to make written legal submissions within three weeks. Such submissions were duly made by letter dated the 31st January 2008 in which it was reiterated that “our client’s status as a failed asylum seeker and her mental disturbance are cumulative factors which it is submitted combine to bring our client well beyond the threshold for refugee status.” In furtherance of the claim that returning failed asylum seekers were liable to persecution on return the Tribunal Member’s attention was drawn inter alia to an Amnesty International Urgent Action report dated the 29th November 2007 entitled “Fear of torture / incommunicado detention / forcible return” which records that a named Eritrean woman was forcibly returned from the U.K. via Saudi Arabia on the 21st October 2007 had been detained by airport security on the following day and had not been seen since. It was stated that she was reportedly held in a named military prison and that:-
Background Information The Office of the UN High Commissioner for Refugees (UNHCR) issued guidelines to all governments in 2004, which are still in force, opposing the return of rejected Eritrean asylum-seekers on the grounds of the Eritrean authorities' record of serious human rights violations.[…]” 10. An applicant who has made a particular claim has an expectation that it will be considered and a determination made on that claim. The Court is concerned that there is no reference to these submissions or COI reports in the body of the decision which raises the possibility that they were not considered at all. 11. The Court will therefore grant leave on the following two grounds:
(ii) With respect to the applicant’s asserted fear of persecution as a failed asylum seeker, the Tribunal Member has acted in breach of fair procedures in failing to assess directly relevant submissions and country of origin information furnished by the applicant. |