Title: MK -v- Minister for Justice, Equality and Law Reform
HIGH COURT
Judgment delivered by Mr Justice McGovern on January 23rd, 2008.
JUDGMENT
The applicant failed to establish a flaw in the procedure followed by a refugee appeals commissioner, and failed to establish that there were substantial grounds for contending that the decision of the tribunal was invalid and ought to be quashed, so the application for leave to apply for judicial review must fail
BACKGROUND
The case concerned an asylum application from a woman claiming to be a refugee from the Democratic Republic of Congo, who came to the State on February 12th, 2004. She applied for asylum on the 13th, and was interviewed by a refugee applications commissioner the following December.
In May 2005 she was informed that her application for refugee status had been refused.
She appealed that decision to the Refugee Appeals Tribunal, and in May 2006 was informed that her appeal had been unsuccessful, on the grounds of lack of credibility and lack of evidence. She sought to judicially review this decision.
Her claim for asylum was based on her husband being a leading member of the Mai Mai organisation, and on her having been imprisoned because of the connection.
She escaped from prison, and fled to Ireland. She said she would face persecution as a result of her connections if she had to return to the Democratic Republic of Congo.
Mr Justice McGovern pointed out that the High Court was not an appellate court from the decisions of the Refugee Appeals Tribunal, and did not re-examine the facts.
The Supreme Court had said that the validity could only be questioned by way of judicial review, and the High Court must be satisfied that there were substantial grounds for quashing an order. These must be "reasonable", "arguable and weighty".
In assessing credibility the tribunal took into account factors like the presence or absence of identity documents, and the applicant's account of how he or she came to Ireland.
The present applicant had no identity documents other than a birth certificate, which she said she obtained from the man who had brought her to Ireland. She admitted she came into the country on a French passport, supplied by the same man, who then took it back. She had no other identity documents to present to the tribunal.
She told the tribunal she met the man, who arranged everything and who was a friend of her father, on the road after she escaped from prison. He brought her to Tanzania, and she lived in his house until he arranged to bring her to Ireland. She made no payment to him.
Decision
"One has to ask why would a person who she met while fleeing from the prison act in this fashion even if he was a friend of her father," asked Mr Justice McGovern.
"Why would he travel all the way from Africa through at least two other countries to bring her to Ireland and provide the necessary documentation for her to come here, and not accept any payment for this service? No explanation is given as to why he would have gone to all this trouble for nothing.
"In fact the evidence would suggest that it cost him money because he provided the tickets. On any objective basis this account is simply not credible.
"In the light of that account and the lack of any proper identification documents, it is easy to see why the Refugee Appeals Tribunal found the plaintiff to be lacking in credibility."
He added that there was no country of origin information to support her description of the events leading to her escape from prison, which included a description of an attack by the Mai Mai during which a lot of people were killed.
The applicant had also claimed that she had been repeatedly raped and otherwise abused by the opposition group, and her solicitor said she was attending a psychiatrist, whose report would be made available to the tribunal. This was not produced.
"The court acknowledges that it is extremely difficult and traumatic for victims of sexual assaults - particularly multiple sexual assaults used as an instrument of war - to recount these events," the judge said.
"While the courts acknowledge the difficulty for applicants in having to recount painful details from their past, it is necessary that this be done to properly evaluate the application. The failure to produce a report from the psychologist in this case is significant."
He concluded by stating that the applicant had to establish an arguable case for some flaw in the procedure, or irrationality or breach of natural or constitutional justice, or lack of vires. She had failed to do so.
The full text of the judgment is on www.courts.ie.
Solicitors: Daly, Lynch, Crowe and Morris (for the applicant); Chief State Solicitor (for the respondent)