C.M. (Zimbabwe) v International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 23 January 2018
• Neutral Citation: [2018] IEHC 35
• Docket Number: [2017 No. 302 J.R.]
• Court: High Court
• Date: 23 January 2018

[2018] IEHC 35

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 302 J.R.]

BETWEEN

C.M. (ZIMBABWE)

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

RESPONDENT

Asylum, Immigration & Nationality - Refusal of asylum claim - Adverse credibility findings - One time assault - SPIRASI report - Fair procedures - Inconsistencies in evidence

Facts: The applicant filed an application for judicial review of the respondent's decision for rejecting the applicant's appeal against the decision of the Refugee Applications Commissioner who had rejected the applicant's asylum claim. The applicant contended that based on the medical evidence that confirmed his story; the respondent should have assessed the overall evidence in the applicant's favour.

Mr. Justice Richard Humphreys dismissed the applicant's application. The Court held that it was within the scope of the decision-maker to decide how to look upon the particular piece of evidence and attached weight to it. The Court found that there were stark inconsistencies in the applicant's narrative and the evidence. The Court observed that in the cases where the credibility of the applicant had been rejected, the respondent was not under any obligation to attach high probative value to the medical reports submitted by the applicant.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 23rd day of January, 2018

1 The applicant claims that he was wanted by the Zimbabwean police in August, 2011. His wife stated that on 21st August, 2011, she was the subject of a one-off assault by a police officer, involving being struck on the head and being sexually assaulted.

2 On the 28th August, 2011, the applicant left Zimbabwe for South Africa. He arrived in the State on 24th September, 2011, via Saudi Arabia. He applied for asylum and that claim was rejected. On 25th June, 2012, he applied for subsidiary protection and was interviewed on 27th January, 2015. The Refugee Applications Commissioner rejected the claim on 27th March, 2015. That decision was appealed to the Refugee Appeals Tribunal on 2nd June, 2016. On 8th March, 2017, the tribunal rejected the appeal in a 21 page decision by Ms. Emma Toal. A statement of grounds was filed on 5th April, 2017. No challenge whatsoever was made to any of the negative credibility findings. I have heard helpful submissions from Mr. Mark de Blacam S.C. (with Mr. David Leonard B.L.) for the applicant and from Mr. Dermot Manning B.L. for the respondent.

The negative credibility findings

3 The tribunal decision contains a number of negative findings regarding the credibility of the applicant, as follows.

(i). At para. 5.3, the tribunal member refers to an inconsistency between the subsidiary protection interview and the applicant's evidence before the tribunal. Mr. de Blacam submits there is no inconsistency, but that if there is, it is not of a major nature. However, the tribunal member saw and heard the applicant and is best placed to assess contradictions of this nature. The weight to be attached to the evidence and the evaluation of it is primarily a matter for the decision-maker.

(ii). In para. 5.4 the tribunal member records that the applicant's wife said that the police came to her brother's house looking for the applicant and then took her word that the applicant was not there and left rather than searching the house. This implausible story was not accepted by the tribunal member who said that she would not accept, given the behaviour of the police, that they would not have carried out a search. Mr. de Blacam submits that this is not a strong point either, but it seems to me that that question is a matter for the decision-maker. He also submits that it is implicit in the tribunal member's decision that this involved acceptance of the wife's other evidence. That is not so. Pointing out a contradiction between versions of events does not involve accepting either version.

(iii). In para. 5.5, the tribunal member said that it was not plausible that the applicant would voluntarily go to a location that the police could link him to, such as the family home in his home village. Mr. de Blacam relies on the applicant's explanation that if he went anywhere else he would stand out and people might ask why he was there, and that he did not know the language elsewhere. It seems to me that the tribunal member who saw and heard the applicant is best placed to evaluate whether this explanation should be accepted.

(iv). In para. 5.8 the tribunal member referred to the fact that the applicant said that he left his wife and children at home on the night he was advised to stay away from home, thus putting them in jeopardy. Given the applicant's stated position on the brutality of the police, the decision-maker was well entitled to consider this story to be implausible.

4 The operative principles here are those stated in S.B.E. v. Refugee Appeals Tribunal [2010] IEHC 133 (Unreported, Cooke J., 25th February, 2010) at para. 22 in relation to credibility that ' the issue is one which is exclusively for the decision maker to determine' and that the court is concerned only with the process. A similar statement was made by Stewart J. in E.Y. (Pakistan) v. Refugee Appeals Tribunal [2016] IEHC 340 (Unreported, Stewart J., 17th June, 2016), para. 39

The complaint that the applicant should have succeeded given the SPIRASI report in relation to his wife

5 Much reliance was placed by Mr. de Blacam on the SPIRASI report (dated 15th November, 2016) which features in each of the grounds in the statement of grounds. It is not the law that if an applicant comes forward with a SPIRASI report or any medical report he or she is entitled to succeed...