Judgment: 2012-06-26 · Court archive

High Court grants leave to challenge asylum appeal decision over future risk assessment

The court found substantial grounds to argue that the Refugee Appeals Tribunal failed to assess risk to a woman whose gender and nationality it had not specifically rejected. It did not quash the Tribunal’s decision.

The High Court · [2012] IEHC 487

Who, what, where, when and why

Who
  • Refugee Appeals Tribunal
  • M. Clark (Judge)
What

The court found substantial grounds to argue that the Refugee Appeals Tribunal failed to assess risk to a woman whose gender and nationality it had not specifically rejected. It did not quash the Tribunal’s decision.

Where

Places mentioned in the report

  • South Kivu
  • Democratic Republic of the Congo
  • Belgium
  • Italy
  • Ireland
When

Judgment:

Other dates in the report
  • 17 April 2012; 17 June 2009

    The applicant, identified in the judgment as C. B. (DR Congo), sought to challenge the Tribunal’s decision of 17 June 2009. She also sought declaratory and injunctive relief. The leave application was heard on 17 April 2012. Justice M. Clark granted a short extension of time to bring it.

Why

Reasons reported in the judgment

The High Court has granted an asylum applicant leave to challenge a Refugee Appeals Tribunal decision, finding substantial grounds to argue that the Tribunal failed to assess her future risk if returned to the Democratic Republic of the Congo (DRC). The court did not quash the decision; it allowed the judicial review challenge to proceed on two grounds.

The High Court has granted an asylum applicant leave to challenge a Refugee Appeals Tribunal decision, finding substantial grounds to argue that the Tribunal failed to assess her future risk if returned to the Democratic Republic of the Congo (DRC). The court did not quash the decision; it allowed the judicial review challenge to proceed on two grounds.

The applicant, identified in the judgment as C. B. (DR Congo), sought to challenge the Tribunal’s decision of 17 June 2009. She also sought declaratory and injunctive relief. The leave application was heard on 17 April 2012. Justice M. Clark granted a short extension of time to bring it.

The applicant had first applied for asylum in Ireland in 2003. The judgment records that she had not disclosed an earlier asylum application in Belgium or time spent in Italy. Those omissions were the primary reason for negative credibility findings by the Refugee Applications Commissioner and, subsequently, the Tribunal. Her account included arrests, detention, beatings and rape in South Kivu, which she attributed to her activities in a village group. She later changed the dates she gave for those events. The Tribunal rejected her account and found there was no reasonable likelihood she would face persecution for a Convention reason if returned.

The applicant argued that, even if her account of past events was disbelieved, the Tribunal should have considered her future risk as a woman from eastern DRC. She said this claim was supported by country-of-origin reports describing sexual violence and conflict in the region. The respondents argued that her lack of credibility left no basis for a forward-looking assessment and that indiscriminate violence did not establish a Convention reason.

Justice Clark found no substantial flaw in the Tribunal’s treatment of the personal documents. The court noted inconsistencies among them, including differing accounts of where the applicant’s children were staying. It also found no substantial ground in the Tribunal’s treatment of medical reports, which recorded diagnoses including post-traumatic stress disorder and depression.

However, the judge said the Tribunal’s finding that the applicant was a woman from South Kivu provided some foundation for assessing prospective risk. The Tribunal appeared not to have addressed submissions that gender-based persecution could provide an alternative basis for refugee status if her account of past events was rejected. The court also found it arguable that the Tribunal failed to assess whether gender was a relevant reason for sexual violence and whether women faced additional harm after rape.

Leave was granted to argue that the Tribunal failed to properly consider the submissions and country information about risk to the applicant as a woman, and that it erred in law by failing to carry out a forward-looking risk assessment given that her gender and nationality had not been specifically rejected. These are grounds permitted to be argued; the court made no final determination that the Tribunal’s decision was unlawful.

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