Congolese man's asylum case must be reconsidered
K -v- Refugee Appeals Tribunal anor. Neutral citation (2010) IEHC 367. High Court Judgment was delivered on September 28th, 2010, by Ms Justice Maureen Clark.Judgment
A member of the Refugee Appeals Tribunal failed adequately to consider medical evidence concerning claims of torture from a Congolese man. His decision to reject the man’s asylum claim was quashed and the man’s appeal was readmitted for fresh consideration by a different tribunal member.
The applicant is from the Democratic Republic of Congo, and is the father of two young children. He is separated from their mother and they remain in the DRC, where the Red Cross is attempting to find them.
The applicant qualified as an electrical engineer and worked at the state-controlled national television station, eventually attaining a senior position where he had editorial authority. In this capacity, in May 2003, he authorised the broadcasting of programmes on politically sensitive issues without government clearance. This led to his arrest, detention and torture for 63 days. One of the issues covered was material linking the current president, Joseph Kabila, to the Tingi Tingi refugee camp, where there had been a massacre of Rwandan refugees.
He was held in the GLM detention centre in Gombe, Kinshasa, where he was beaten with wire, sticks and military belts and burned with cigars. His finger was broken, he suffered a rectal prolapse and sustained marks and scars on his body.
His escape was facilitated by a colonel, who said the applicant’s father had been of assistance to him in the past, and he fled to Ireland, where he sought asylum, outlining the events leading to his arrival. He did not at this time have medical evidence.
The Refugee Applications Commissioner found his account to be neither credible nor plausible, questioned the existence of a massacre at Tingi Tingi and rejected his application. He appealed to the Refugee Appeals Tribunal.
At his appeal an unusually strongly worded report from the specialist service for the victims of torture, Spirasi, was provided, which, along with reports from the applicant’s GP and a consultant psychiatrist, supported the applicant’s claim that he was tortured.
Country of origin information also supported the allegation that there had been a massacre at the Tingi Tingi camp and that extra-judicial detention centres had operated in secret. Nonetheless, the appeal was rejected.
This decision was overturned by the High Court on the basis that the medical evidence was not adequately considered. A fresh appeal took place in September 2008, where the Refugee Appeals Tribunal made substantially the same credibility findings as the original commissioner from Office of the Refugee Applications Commissioner despite the fresh evidence.
This included further evidence placing President Kabila near the Tingi Tingi camp at the relevant time.
While Ms Justice Clark rejected the applicant’s argument that the medical evidence should have been considered before an assessment of credibility was made, she accepted his argument that, given the compelling nature of the medical evidence, it could only be disregarded if the primary credibility findings were of such force as to outweigh the medico-legal report.
She said it was incumbent on the decision-maker to give reasons for rejecting the contents of medico-legal reports, especially those with a high probative value.
Ms Justice Clark said that the first time the medical reports were considered was on appeal. These reports were consistent in describing the applicant as a traumatised and unwell man receiving treatment for post-traumatic shock and depression.
While the court accepted that there were minor inconsistencies in his narrative and areas, such as his travel to Ireland, which lacked credibility, these were not so compelling, in the context of language and cultural differences, as to outweigh the medical evidence.
In addition, much had changed since the original decision of the Office of the Refugee Applications Commissioner. The Tingi Tingi massacre was no longer in dispute and Mr Kabila had undoubtedly been in the army in that area at the relevant time.
The tribunal member allowed the possibility that the GLM detention centre remained open in 2003. The court considered that his decision on the GLM lacked the strength and clarity to reject the medical reports and therefore the decision to reject the medical evidence was irrational.
Ms Justice Clark quashed the decision and ordered the remittal of the appeal to a different tribunal member.
The full judgment is on courts.ie
Anthony Collins SC and Colm O’Dwyer BL, instructed by AC Pendred Co, Dorset Street, Dublin, for the applicant; Anthony Moore BL, instructed by the Chief State Solicitor, for the respondent