C (R) & M (GG) [Zimbabwe] v Min for Justice & Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 11 December 2014 |
| Neutral Citation | [2014] IEHC 609 |
| Court | High Court |
| Date | 11 December 2014 |
[2014] IEHC 609
THE HIGH COURT
AND
REFUGEE ACT 1996 S13(6)
C (R) & M (GG) [ZIMBABWE] v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE UNREP 15.7.2010 2010/6/1485 2010 IEHC 490
REFUGEE ACT 1996 S13
REFUGEE ACT 1996 S11
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)
REFUGEE ACT 1996 S17(7)
S v MIN FOR JUSTICE & ORS 2002 2 IR 163 2002/24/6257 2002 IESC 17
B (K) v MIN FOR JUSTICE & OFFICE OF THE REFUGEE APPEALS TRIBUNAL UNREP MAC EOCHAIDH 12.4.2013 2013/5/1203 2013 IEHC 169
EUROPEAN COMMUNITIES (ASYLUM PROCEDURES) REGS 2011 SI 51/2011
REFUGEE ACT 1996 (APPEALS) REGS 2003 SI 424/2003
REFUGEE ACT 1996 (APPEALS) REGS 2003 SI 424/2003 S8(1)
REFUGEE ACT 1996 (APPEALS) REGS 2003 SI 424/2003 SCHED 1 PART 1 S3
REFUGEE ACT 1996 (APPEALS) REGS 2003 SI 424/2003 SCHED 1 PART 1 S5
REFUGEE ACT 1996 S16(18)
REFUGEE ACT 1996 S16(6)
REFUGEE ACT 1996 S13(5)
REFUGEE ACT 1996 S13(1)
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 ART 4
M v MIN FOR JUSTICE & ORS 2013 1 WLR 1259 2012 AER (D) 284 (NOV) (CASE C-277/11)
REFUGEE ACT 1996 S16(6)(7)
M (M) v MIN FOR JUSTICE & ORS (NO 3) UNREP HOGAN 23.1.2013 2013 IEHC 9
MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 PARA 5
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 PARA 5(1)(A)
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 PARA 5(1)(B)
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 PARA 5(1)(C)
EEC DIR 83/2004 ART 4(3)
EEC DIR 83/2004 ART 4(3)(B)
REFUGEE ACT 1996 S11(B)
REFUGEE ACT 1996 S11(B)(C)
A (MS) v REFUGEE APPEALS TRIBUNAL (MCGARRY) & MIN FOR JUSTICE UNREP CLARK 13.10.2009 2009/2/283 2009 IEHC 435
REFUGEE ACT 1996 S11(B)(F)
Immigration and Asylum – Refugee Status – Credibility – Time Limits – Appeals - Article 4 of Council Directive 2004/83/EC - s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 - s. 17(7) of the Refugee Act 1996
Facts: The applicants in this judicial review sought certiorari of the decision of the Refugee Appeals Tribunal (“RAT”) affirming the Refugee Applications Commissioner”s (“ORAC”) decision to refuse the applicants refugee status. The ORAC decisions were the subject of judicial review proceedings before the High court. The applicants had challenged the Commissioner”s s. 13(6) findings, as it meant their appeal to the RAT would be via written submissions. The applicants contended that the absence of an oral appeal was prejudicial. The applicants also contended that the Commissioner had failed to examine the main issue of their claim and instead focused exclusively on their credibility. The applicants applied for judicial review outside of the time limit under s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000. The court was provided with an affidavit explaining the reasons for the delay.
The applicants applied for refugee status in Ireland because they claimed they were persecuted in Zimbabwe due to their close relationships with members of the opposition party. The applicants made a s. 17(7) of the Refugee Act 1996 application for readmission to the asylum system. The applicants challenged the decisions of the RAT on a number of grounds: the complete disregard of the fundamental claim regarding family relationships; a disregard of the request made by their solicitor to remit the matter pursuant to s. 16(6) of the Refugee Act 1996; a disregard of the applicants” right to be heard; and the decision maker”s disregard for his duty to cooperate imposed by Article 4 of Council Directive 2004/83/EC.
Held Barr J: The court was satisfied that a good and sufficient reason existed to grant the extension of time required. The court analysed the RAT”s decisions and determined that the Tribunal member had not assessed the core aspect of the applicants claim; nor did it refer to the documentation submitted in support of the applicants claim. However, the court had to decide if the Tribunal was obliged to do these things by Article 4(3)(b) of the Qualification Directive. The court was of the opinion that even though the credibility of the applicants was in doubt, the Tribunal was still obliged to assess the core claim by the applicants in relation to their persecution in Zimbabwe. The court also concluded that the RAT failed to refer to the applicant”s request pursuant to s. 16(6) to remit documents relating to the applicants” family members to the ORAC for further investigation. In addition, the RAT failed to give reasons for its decision meaning the Tribunal”s decision was defective. The applicants were therefore entitled to an order for certiorari. The Tribunal also failed to carry out an adequate forward-looking test as to whether the applicants would be persecuted upon returning to Zimbabwe. As a result the court quashed the RAT”s decisions in respect of each applicant and remitted both matters back to the RAT for further consideration.
1. The applicants in this "telescoped" judicial review application are seeking certiorari of the decisions of the Refugee Appeals Tribunal ("the RAT"), dated 23 rd March, 2010 (erroneously dated 23 rd March, 2009), in respect of each of them, affirming recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that they be refused refugee status.
2. The decisions of ORAC in respect of these applicants were the subject of judicial review proceedings before the High Court (Clark J.) in February 2010. On that occasion, the applicants sought to challenge ORAC's decisions, dated 14 th May, 2008, for R.C. (the wife), and 15 th May, 2008, for G.G.M. (the husband), recommending that they be refused refugee status. The basis of this challenge was that the Commissioner had made s. 13(6) findings against the applicants, which meant that any appeal to the RAT would be on the papers only.
3. The applicants argued that they would be greatly prejudiced by the absence of an oral appeal. They said that the Commissioner based his decisions "uniquely on credibility grounds and failed to assess the kernel of their claim" which was that the husband is the brother of a former Zimbabwean opposition politician, T.M., who was forced to flee persecution in Zimbabwe and was granted refugee status in the United Kingdom. The decision of Clark J. in R.C. and G.G.M. [Zimbabwe] v. Refugee Applications Commissioner & Anor [2010] IEHC 490 provides a full account of the facts of the applicants' claim, and ORAC's s. 13 report. I therefore provide only a brief overview here.
4. The applicants claimed to have been subjected to serious persecution in Zimbabwe between 2002 and 2007. They said they were targeted by Zanu-PF youths because of their close blood relationship with members of the MDC opposition party. Both husband and wife provided detailed accounts of the persecution which they claimed to have experienced during this five-year period. They said that they had to relocate in Zimbabwe as a result of the persecution but that their farmhouse was burnt down by Zanu-PF youths in August, 2007. It was after this that they claimed to have fled Zimbabwe and travelled via South Africa and Germany to Ireland, where they arrived in September 2007.
5. The applicants submitted various documents in support of their claim, including a series of documents relating to T.M. Clark J. noted at para. 5 of her judgment in respect of the applicants' challenge to the decisions of ORAC:-
2 "5. In support of their asylum applications the applicants submitted a number of identity documents and a greater series of documents relating to "TM", a politician in Zimbabwe who they claim is the husband's brother. These documents included a newspaper article, a photocopy of TM's passport and a letter from the U.K. Home Office granting refugee status to the said TM together with a document purporting to be from TM, which discusses the harassment of his brother and sister-in-law (i.e. the applicants) in Zimbabwe in 2006 and 2007. That letter purports to have been sworn before a Commissioner for Oaths in the U.K. The applicants also furnished letters from the Home Office granting refugee status to another man with the same surname together with a document purporting to be from the immigration authorities in Canada stating that yet another male with the same surname (Mr R M) was involved in the refugee process in Canada. In addition, they submitted a further document stating that the third man Mr R M and another person were recognised as refugees in Canada. They also furnished a letter from a Mr. B F M stating that he is a brother of the husband and informing the reader that he sought refugee status in the United States because he feared persecution by reason of his political activities. Finally, a Zimbabwean driver's licence in the name of Mr B F A and a U.S. travel document in his name were furnished."
6. Both applicants recounted their story in great detail to ORAC at their s. 11 interviews. However, ORAC obtained information from the U.K. authorities which revealed that persons with the same biographical details as the applicants had been in the U.K. on valid visas during the entire period they claimed to be suffering persecution in Zimbabwe. This information was put to the applicants during the course of their second though separate s. 11 interviews. The husband denied that he had given false information. The wife, however, admitted that she had been in the U.K. since 2002 and had...
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