HJ [Zimbabwe] v Minister for Justice

JurisdictionIreland
JudgeMs. Justice Stewart
Judgment Date15 July 2015
Neutral Citation[2015] IEHC 471
Date15 July 2015
CourtHigh Court
Docket Number[2010 No. 737 J.R.]

[2015] IEHC 471

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2010 No. 737 J.R.]

BETWEEN
H.J. [ZIMBABWE]
APPLICANT
AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
REFUGEE APPEALS TRIBUNAL
ATTORNEY GENERAL
RESPONDENTS

Asylum, Immigration & Nationality – Appeal against the decision of Refugee Appeals Tribunal – S. 13 (1) of the Refugee Act 1996 – Refusal of asylum – Fear of persecution – Whether evidence of applicant credible

Facts: The applicant sought leave for judicial review against the decision of the second named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that the decision of the second named respondent was flawed as it did not take an objective analysis of the well founded fear of persecution of the applicant on the basis of adduced evidence in form of the country of origin information and failed to apply a forward-looking test.

Ms. Justice Stewart refused to grant leave for judicial review of the decision of the second named respondent to the applicant. The Court held that in cases where the credibility of the applicant was in question and it was determined that the applicant's narration of events was unbelievable, the second named respondent was not obliged to further scrutinize the country of origin to see whether it fit into the account given by the applicant. The Court found that it would not intervene if there was no flaw and any manifest error of law in the procedure by which the decision of the second named respondent was arrived at.

JUDGMENT of Ms. Justice Stewart delivered on the 15th day of July, 2015
1

This is a telescoped application for judicial review wherein the applicant seeks an order of certiorari quashing the decision of the second named respondent made on the 24th May, 2010, affirming the recommendation of the Refugee Applications Commissioner to refuse to grant the applicant a declaration of refugee status, and remitting the matter for de novo consideration by a different tribunal member.

BACKGROUND
2

The applicant is a Zimbabwean national, who was born on 4th November, 1975. The applicant is a married man and has one daughter. His wife and daughter reside in South Africa. The applicant holds a diploma in aircraft avionics and formerly worked with the air force of Zimbabwe, at Tambo airport, South Africa and Park Aviation Dublin/SR Techniques. The applicant stated that he served in the air force of Zimbabwe from November, 1997 to May, 2008 and that he attained the position of flight sergeant.

3

The alleged persecution claimed by the applicant resulted from his disagreement with the Zanu PF farm seizure policy. All members of the air force were required to have a farm as a statement of support for government policy. The applicant refused to own what he referred to as "blood farms". The applicant states that he was arrested at a protest on 9th May, 2008, was mistakenly released by police and fled to South Africa. He remained in South Africa until 21st January, 2009, when he came to Ireland on a temporary contract of work. He returned to South Africa on 26th May, 2009. On 12th November, 2009, the applicant attempted to return to Zimbabwe but was arrested at the border. He states that he escaped when the guards went to the toilet and he returned to South Africa.

4

The applicant arrived in Ireland and applied for asylum on 26th November, 2009, and completed the ASY1 form on that date. The s.8 questionnaire was completed on 7th December, 2009. The applicant attended a s.11 interview on 3rd February, 2010, and a report pursuant to s.13(1) of the Refugee Act 1996 (as amended) was issued on 23rd February, 2010. The commissioner concluded that the applicant had not established a well-founded fear of persecution as required by s.2 of the Refugee Act 1996 (as amended) and recommended that the applicant should not be declared a refugee. Further, the commissioner recommended that s.13(6)(a) of the Refugee Act 1996 (as amended) was appropriate, which had the effect that any proposed appeal to the Refugee Appeals Tribunal would be a papers-only appeal.

5

A form 2, notice of appeal, was completed on behalf of the applicant on 23rd March, 2010, and submitted to the Refugee Appeals Tribunal. The notice of appeal was completed by the Refugee Legal Service on behalf of the applicant. It was an extensive document comprising of ten pages and also attached country of origin information in respect of Zimbabwe. The Refugee Appeals Tribunal issued a determination in the matter on 24th May, 2010, affirming the recommendation of the Refugee Applications Commissioner.

IMPUGNED DECISION
6

The decision, exhibited from p.146 to p.162 of the booklet, sets out the background to applicant's claim and recites the applicable law. The tribunal member, under the heading "analysis of the applicant's claim", examines the reasons for the refusal of the declaration of refugee status, which can be summarised as follows:

i. The applicant stated that when he returned to South Africa in November, 2009, he thought the human rights situation in the country had improved The tribunal member then looked at the country of origin information submitted and stated, 'considering the situation in Zimbabwe in September/November, 2009, it is difficult to understand why the Applicant would have believed that "everything had died down completely" in Zimbabwe in early November, 2009 and to understand why he, as a wanted man, would have believed that he could safely return to Zimbabwe'. The tribunal member found that the applicant's return to Zimbabwe on 12th November, 2009, seriously undermined the well-foundedness of his stated fear and the credibility of his account.

ii. The applicant's account of his release by mistake lacked credibility.

iii. The ease of the applicant's escape from an armed officer after apparently being specifically brought by Roland to the authorities in Zimbabwe was not credible.

iv. The tribunal member set out details of the applicant's life in South Africa between May, 2009 and November, 2009 and found that it was reasonable to suggest that if people were looking for him in South Africa they would have sought him out between May and November, particularly as he was working as an airport technician in an airport there.

v. Considering the fact that the applicant had a limited political profile and prominence in Zimbabwe, it was not plausible that the Zimbabwean state would invest resources into specifically locating the applicant in South Africa and the applicant's testimony in that regard was not plausible.

vi. The tribunal member found that credibility issues arose with the applicant's claim, as set out in the decision, and he could not be given the benefit of the doubt.

APPLICANT'S SUBMISSIONS
7

On 3rd June, 2010, a notice of motion together with the...

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2 cases
  • A (R) v Refugee Appeals Tribunal and Others
    • Ireland
    • High Court
    • 4 November 2015
    ...Tribunal Member is a matter for that member (see e.g., per Stewart J. in H.J.(Zimbabwe) v. Minister for Justice, Equality and Law Reform [2015] IEHC 471 at para. 18). In my view the analysis of the alleged contradictory or incomplete account given by the applicant is well within the jurisdi......
  • E (B)(Nigeria) and Others v Refugee Appeals Tribunal and Others
    • Ireland
    • High Court
    • 19 November 2015
    ...40 I would also refer here to a judgment of this Court in H.J. [Zimbabwe] v. Minister for Justice. Equality and Lew Reform & ors. [2015] IEHC 471, where at para. 11, I specifically endorsed and applied the above. 41 23. The applicants maintained that the lack of an oral hearing resulted in ......

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