K. -v- Refugee Appeals Tribunal, [2009 IEHC 287 (2009)

Docket Number:2007 1411 JR
Party Name:K., Refugee Appeals Tribunal
Judge:Clark J.
 
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THE HIGH COURT2007 1411 JR

BETWEEN

E. K.APPLICANTAND

THE REFUGEE APPEALS TRIBUNAL (OLIVE BRENNAN)RESPONDENTAND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

IRELAND AND THE ATTORNEY GENERALNOTICE PARTIESJUDGMENT OF MS. JUSTICE M. H. CLARK, delivered on the 11th day of June, 2009.

  1. This is an application for judicial review of the decision of the Refugee Appeals Tribunal ("RAT"), dated 10th 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 4th 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 14th 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 23rd 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...

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