Title: M -v- MJELR Ors
HIGH COURT
Judgment was given by Mr Justice McGovern on May 7th, 2008
JUDGMENT
Where medical evidence is significantly supportive of an applicant's claim of asylum, based on claims of torture for his political beliefs, cogent reasons should be given by a Refugee Appeals Tribunal member for rejecting it.
BACKGROUND
The applicant claimed to have been born in Ethiopia in 1973. He said he was a married man with two children, and to be a member of the Oromo Liberation Front, a group seeking independence from Ethiopia.
He said he was arrested several times, most recently in October 2002, when he was tortured. His wife was also arrested, and he did not know whether she was alive. His children were living with his mother.
A friend raised money to bail him out of prison, and helped him leave Ethiopia. He went to Kenya and from there to Ireland, travelling through countries he could not identify, and arriving here on September 27th. He applied for asylum on September 30th.
He submitted a number of medical reports with his application. One was from Dr Agnes Bourke, who found he was suffering from sleeplessness and flashbacks, and referred him to Spirasi, a humanitarian organisation which assists asylum seekers and refugees. He was also referred to a local counselling service. Because of his depression she also had him admitted on an emergency basis to the psychiatric services in the Mercy Hospital in Cork.
He also saw Dr Finian O'Brien and Dr Patrick O'Sullivan of the Centre for the Care of Survivors of Torture, and their report stated he was suffering from a moderate to severe depressive disorder which had markedly affected his functioning. They diagnosed mild post-traumatic stress disorder (PTSD).
Dr John Dennehy, a consultant psychiatrist, also provided a report stating he was suffering from PTSD which would have affected his ability to give instructions to his legal team during his asylum application and during his appeal to the Refugee Appeals Tribunal.
Des Zaidan, the member of the tribunal who heard the appeal, wrote a 13-page decision explaining his rejection of the appeal on the grounds of the credibility of the applicant.
DECISION
Mr Justice McGovern said leave for a judicial review could only be granted if there were substantial grounds for contending that the decision was invalid. The grounds for rejecting the appeal on the grounds of credibility were supported by the evidence. "I hold that he was correct in the manner in which he approached the issue of credibility. The tribunal members felt that the applicant had given inconsistent information in his account of events leading to his arrival in this State."
However, he was troubled by the tribunal member's reference to the Istanbul Protocol, dealing with evaluations of various forms of torture, and the meaning to be attached to words like "consistent with". Dr Dennehy used the term "consistent with" just once, in the context of describing the applicant's anxiety and distress and how it affected his concentration and memory.
However, he said none of the medical reports suggested that his symptoms of PTSD were either consistent with, or not consistent with, the torture he claimed to have suffered. "In general, the medical reports tend to support the applicant's account, though they are not conclusive."
The tribunal members seemed to have approached them on the basis that terms like "consistent with" or "not consistent with" were used in relation to these reports, when they were not.
"It is no doubt true that the applicant's anxiety or post-traumatic stress disorder which was found by the doctors could be due to reasons other than torture. But it seems to me that where the medical evidence is significantly supportive of the applicant's claim, that cogent reasons for rejecting it should be furnished and, in my view, the tribunal member has failed to do this."
He granted leave to apply for the various reliefs sought.
The full text of this judgment is on www.courts.ie
Ken O'Sullivan BL, instructed by Moira Shipsey, Refugee Legal Service, (for the applicant); Siobhan Stack BL, instructed by the Chief State Solicitor (for the respondents).