D.K. (South Africa) v The International Protection Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 05 March 2019 |
| Neutral Citation | [2019] IEHC 145 |
| Docket Number | [2018 No. 754 J.R.] |
| Court | High Court |
| Date | 05 March 2019 |
AND
[2019] IEHC 145
[2018 No. 754 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Immigration and asylum – Refugee status – Subsidiary protection – Applicant seeking an order of certiorari quashing the decision of the respondent that the applicant should be refused refugee status and subsidiary protection – Whether the respondent’s decision was irrational
Facts: The applicant, on 19th September, 2018, sought an order of certiorari quashing the decision of the first respondent, the International Protection Appeals Tribunal, that the applicant should be refused refugee status and subsidiary protection. Ground 1 alleged that “the decision should be quashed because the IPAT’s determination that the Applicant is not the Zimbabwean national he claims to be is irrational and/or based on conjecture and/or based on error and/or made without carrying out an assessment or investigation commensurate with the nature of the determination.” Ground 2 alleged that “the IPAT decision if (sic) further impugned due to the failure of the IPAT to make further inquiries with respect to the validity of the Zimbabwean passport in circumstances where this singular issue determined the entirety of the Applicant’s claim for protection.”
Held by Humphreys J that the decision was not irrational and was not based on conjecture or error; rather it was a reasoned and valid assessment of the facts and circumstances by the tribunal member. Humphreys J held that it would not be a legitimate procedure to quash a decision for failure to make enquiries when an applicant did not ask the decision-maker to make such enquiries.
Humphreys J held that the application would be dismissed.
Application dismissed.
This applicant has clocked up two possible nationalities, two asylum applications in different jurisdictions in the Common Travel Area, at least two solicitors, six names or aliases, seven adverse immigration or protection decisions (refusal of asylum, deportation and exclusion orders and a transfer decision in the U.K. and refusal of asylum, subsidiary protection and an appeal here) and nine convictions and custodial sentences.
The applicant Mr. D.K., otherwise among other names D.N.K., claims to be a national of Zimbabwe, born in 1974. This alleged nationality was rejected by the tribunal. He claims that he suffered persecution due to family involvement with the MDC (Movement for Democratic Change). However, he ‘ could only provide very vague information’ about the MDC and thought that those initials stood for a ‘ member of democratic changes’ (para. 1.31 of tribunal decision). He claims that he left Zimbabwe for South Africa and then came to the U.K. on what he says was a false South African passport. The tribunal, however, held that the applicant's signature on the South African passport was strikingly similar to his signature on his asylum paperwork in Ireland.
Once in the U.K. he applied for asylum. That application was rejected. On 6th August, 2004, he was convicted in the U.K. for handling stolen goods, possession of a false instrument and failing to surrender after bail, for which he received a custodial sentence. On 17th January, 2007, he was convicted of drink driving, obstructing the police and driving while disqualified, which also resulted in a custodial sentence. The final three convictions were recorded on 8th August, 2007, again for drink driving, obstructing police and driving while disqualified, and again a custodial sentence was imposed. A deportation order was made against the applicant in the U.K. on 21st September, 2007.
In January, 2008 a Zimbabwean passport which he claims related to him was issued in Zimbabwe at a time when the applicant was in the U.K. The tribunal held that this was an ‘ unreliable’ document. The Zimbabwean passport shows stamps indicating that its holder travelled between Botswana and Zimbabwe in February and March, 2008, again at a time when the applicant was in the U.K. This amongst other things led the tribunal to cast doubt on the genuineness of the proposition that the Zimbabwean passport related to the applicant.
On 30th May, 2008, it is said by the U.K. Home Office that the applicant voluntarily departed from the U.K. in response to the deportation order, and travelled to South Africa (rather than Zimbabwe). That was the version of events accepted by the tribunal. The applicant, on the other hand, claims that he was in the Zimbabwean capital Harare in May, 2008, applying for a visa to return from Zimbabwe to the U.K. and that the 30th May, 2008 was the date on which the visa was refused. He claims that this appeared in the U.K. Home Office information simply due to confusion on their part. He says that the stamp in his passport as being Pretoria (that is, South Africa rather than Zimbabwe) can be explained because, he says, the visa application was sent by the British mission in Harare to the embassy in Pretoria for processing and then returned to Harare. It is not clear that he gave this explanation to the tribunal, although it is set out in a supplemental affidavit in the proceedings. If the applicant had picked up his passport for the first time in or about May, 2008, that would involve the minor difficulty as to how it could be explained that it was used in February and March, 2008. The explanation given to the tribunal, and recorded at para. 2.3 of the tribunal finding, was that ‘he is not sure when he returned from the U.K., it was some time in 07 or 08, but that he had applied for this passport - he does not remember when - issued in January, 08 in person at the office in Zimbabwe so he was in Zimbabwe when those stamps were affixed’. It is unclear what point exactly the applicant was making here but it certainly does not amount to an explanation of the difficulty.
The Zimbabwean passport describes the applicant as a marketing manager but it has not been demonstrated that he was a marketing manager, and indeed the tribunal was of the view that he was not, and that he had no third-level education (para. 1.43). The applicant's explanation, which did not convince the tribunal, was that ‘ he did work as a marketing manager but did not think it...
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