K (E) v Refugee Appeals Tribunal (Brennan)

JurisdictionIreland
CourtHigh Court
JudgeMS. JUSTICE M.H. CLARK,
Judgment Date11 June 2009
Neutral Citation[2009] IEHC 287
Date11 June 2009

[2009] IEHC 287

THE HIGH COURT

[No. 1411 J.R./2007]
K (E) v Refugee Appeals Tribunal (Brennan)

BETWEEN

E.K.
APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (OLIVE BRENNAN)
RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
NOTICE PARTIES

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

P (V) & P (S) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP FEENEY 7.12.2007 2007/50/10642 2007 IEHC 415

IMMIGRATION

Asylum

Appeal - Procedures - Errors in interpretation - Country of origin information - Adverse credibility findings based on unfair interpretation of witness answers - Error of fact by Tribunal - Whether error of fact sufficiently serious and fundamental as to render decision irrational - P v Refugee Appeals Tribunal [2007] IEHC 415 (Unrep, Feeney J, 7/12/2007) applied - Relief granted

Judicial review - Error of fact in respondent's decision - Error of fact not substantially challenged on appeal - Finding of negative credibility associated with error of fact - P v Refugee Appeals Tribunal [2007] IEHC 415 (Unrep, Feeney J, 07/12/2007) applied - Relief granted (2007/1411JR - Clark J - 11/6/2009) [2009] IEHC 287K (E) v Refugee Appeals Tribunal

K(E) v Refugee Appeals Tribunal

: The applicant sought judicial review of a decision of the Refugee Appeals Tribunal on the grounds that the Tribunal had made a basic error of fact and found that a particular farm did not exist. The applicant was a national of Zimbabwe and had moved to a farm with her husband and son. A caseworker from the Office of the Refugee Appeals Commissioner had made a number of queries as to the existence of a farm in Zimbabwe and had received replies. A negative finding of credibility had been made against the applicant.

Held by Clark J. That no rational decision maker having sight of the papers before the Tribunal would have reached the conclusions made as to the existence of a farm. An error of fact had been made which was sufficiently serious that the decision of the Tribunal would be quashed.

Reporter: E.F.

1

1. This is an application for judicial review of the decision of the Refugee Appeals Tribunal ("RAT"), dated 10 th September, 2007, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that the applicant should not be granted a declaration of refugee status. The applicant is seeking an order of certiorari quashing the RAT decision and a declaration that the Tribunal Member may have made errors of fact so basic that it deprived her of jurisdiction to adjudicate on the matter.

2

Leave was granted by Charleton J. on 4 th March, 2009 on the following ground:-

"The Respondent made a basic and fundamental error of fact in stating that "correspondence with the Commercial Farming Union of Zimbabwe indicates that a Reed Farm did not exist", when this correspondence clearly indicated, originally that in relation to the farm that was been referred to and at which location the Applicant had specified that "there was a strong possibility that this was Bill Reed's property" and finally that the correspondence confirmed that this "is the farm owned by William (Bill) Reed."

3

The substantive hearing took place at the Kings Inns, Court No. 1, on 14 th May, 2009. Mr Hugo Hynes S.C. appeared for the applicant and Ms. Siobhán Stack B.L. appeared for the respondents.

Background
4

The applicant is a national of Zimbabwe and a member of the Shona ethnic group. She applied for asylum in the State on 23 rd May, 2006. Three weeks later she gave birth to a daughter in the State. An individual application for asylum was made on behalf of the daughter soon after her birth. The applicant completed an ASY-1 form and questionnaire and attended for a s. 11 interview. Her biographical information indicates that she was born in 1979. She grew up in Harare and had four years of education. After finishing school she lived with her aunt in Harare. In 2001 she married J.K., who was from Malawi. In 2002 she gave birth to a son, T.. She had another child from a previous relationship.

5

Her asylum application was based on the following circumstances: in 2004 she and her husband moved to a farm near Bindura with their son. Her husband worked as a supervisor at a farm which had been confiscated from its original white owner and taken over by the Zanu-PF ruling party who in turn granted it to a black businessman who supported the Zanu-PF. The new owner knew very little about farming and sought the assistance of another white farmer (Mr. Peterson), a member of the MDC whose land had also been repossessed but who was willing to help the new owner with his expertise and advice. His presence on the farm became known to Zanu-PF party supporters in the area who opposed the involvement of white farmers on reallocated farms. This resulted in attempts by these supporters to enter the farm, intimidate and cause damage. One day when Mr. Petersen was at the farm a large group of Zanu-PF members came to the farm, singing and shouting that they wanted to come in. They carried rocks, sticks and whips. The applicant's husband refused to open the gate and warned Mr. Peterson who escaped through another exit. The group broke through the gate, beat up the applicant's husband and took him away. They also threatened the applicant.

6

The husband did not return that night and when three days had passed without any sign of him the applicant went to the police who told her that her husband should not have been working with a white man and deserved what happened to him and said he was he was an MDC supporter. That evening, five Zanu-PF youths came looking for her husband at the farm. They treated her roughly and started pushing her and using threatening words but they stopped when they noticed that she was pregnant. They threatened to return after she had the baby. After that she heard footsteps outside every night and people threatening her and causing her to be very frightened. She claims that Mr. Peterson then assisted her to leave Zimbabwe. She left her son behind with a pastor because Mr. Peterson said it was only she who could go. She has not been able to contact her husband since she left. She says she flew to Ireland via Gatwick with a white man named John.

7

In support of her application the applicant furnished ORAC with a medical certificate compiled by a G.P. in October, 2006, which indicates that the applicant is depressed and was taking anti-depressants, had been referred to a consultant psychiatrist and had arranged counselling. The certificate stated that she was suffering from post traumatic stress.

8

In her questionnaire the applicant described herself as a person of limited education and an underprivileged social background from the shanty towns of Harare. She gave the address of the farm where her husband worked as "Reed Farm Box 50 Mahonaland Province Bindura". She stated that she was not a member of any political party but her uncle was a member of the Zanu-PF and the police considered her husband to be an MDC supporter. At her s. 11 interview she said the new farmer's name was Rob Chanaka and the previous owner was called William. She said the farm was 7km from Bindura and the nearest other big town as Shamua. She did not know the local telephone code or the names of any hotels in Bindura but named some nearby small towns. She said her husband had an MDC card but he did not attend meetings because they took place while they were at church. She said she did not have a card.

9

On 17 th August, 2006 a separate s. 11 interview took place in respect of the asylum application of the applicant's daughter. The applicant spoke on behalf of her daughter. She did not claim any individual fear of persecution on behalf of her daughter and she said she wanted the baby's application to be joined to her own. When asked to clarify the location of the farm where the trouble took place, she gave very specific directions as to how to reach it from Bindura. When asked to name the farm she answered "Reed farm. They still use the old names".

The ORAC Inquiry
10

On 15 th August, 2006 an ORAC caseworker contacted the Commercial Farmers' Union (CFU) in Harare and asked them to answer a number of queries as follows:-

· Is there, or was there a farm named Reed farm, which would be about 7km outside Bindura in Mashonaland Province?

· If this farm exists, has it been taken over/expropriated by the Government?

· Would it be possible to find the name of the current occupant of the above farm?

11

The CFU replied on 16 th August, 2006 and requested further information, saying:-

"There is/was a well known cotton farmer in Bindura called Bill Reed. Is this perhaps the person whose farm you are enquiring about? I don't know of a farm actually...

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