M (J) (Zimbabwe) v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 22 March 2011
• Neutral Citation: [2011] IEHC 133
• Court: High Court
• Date: 22 March 2011

[2011] IEHC 133

THE HIGH COURT

[No. 780 J.R./2010]

M (J) [Zimbabwe] v Min for Justice

JUDICIAL REVIEW

BETWEEN

J. M. [ZIMBABWE]

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S17(7)

N (R) v SECRETARY OF STATE FOR THE HOME DEPT 2008 UKAIT 83

REFUGEE ACT 1996 S5

KOUAYPE v MIN FOR JUSTICE & ORS UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

MEADOWS v MIN FOR JUSTICE & ORS UNREP SUPREME 21.1.2010 2010 IESC 3

REFUGEE ACT 1996 S2

T (R) v SECRETARY OF STATE FOR THE HOME DEPT 2010 EWCA CIV 1285

IMMIGRATION

Deportation

Reasonableness - Country of origin information - Selective reliance - Threat specific to applicant - Principles applicable to Minister when making decision to deport - Duty to disclose rationale behind decision - Test to be applied in deciding application for leave - Role of High Court - Whether substantial grounds - Kouaype v Minister for Justice, Equality and Law Reform [2005] IEHC 380, (Unrep, Clarke J, 9/11/2005); RN v Secretary of State for the Home Department [2008] UKAIT 00083; RT (Zimbabwe) & Others v. SSHD [2010] EWCA Civ 1285, [2011] Imm AR 2 approved; Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 applied - Refugee Act 1996 (No 17), ss 5 and 17 - Immigration Act 1999 (No 22), s 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave to apply for judicial review granted (2010/780JR - Irvine J - 22/3/2011) [2011] IEHC 133

M(J) v Minister for Justice, Equality and Law Reform

Facts The applicant was a native of Zimbabwe and had been living in Ireland for a number of years. The applicant had made an application for asylum in the State and a number of subsidiary applications to remain in the State all of which had been refused. Primarily the applicant's submissions had been based upon the political situation in Zimbabwe and that as a member of the minority Ndebele ethnic tribe he faced persecution if he returned to Zimbabwe. Leave to bring judicial review proceedings was sought and primarily it was submitted that the Minister did not properly consider the information that was submitted to him and instead engaged in an exercise of selectively relying on certain country reports to reach conclusions which were at odds with any reasonable and objective assessment of the information available.

Held by Irvine J in granting leave to bring judicial review. It would seem that the picture painted by the Minister of conditions in Zimbabwe might be described as optimistic, and a number of the conclusions drawn were arguably unreasonable when considered in isolation. Section 5 of the Refugee Act 1996 in effect required the applicant to establish a threat to his life or freedom on account of his race, religion, nationality, membership of a particular social group or political opinion. Leave to seek judicial review would be granted on the basis that the conclusions reached by the respondent with respect to risk to the applicant if returned to Zimbabwe as a failed asylum seeker, particularly as a member of Ndebele tribe and as a person who has spent a significant amount of time abroad, were unreasonable and not supported by the materials that were placed before the respondent by the applicant's solicitor.

Reporter: R.F.

1 JUDGMENT of Ms. Justice Irvine delivered the 22ND day of MAR 2011

2 1. This is an application for leave to bring judicial review proceedings challenging a decision by the Minister to make a deportation order dated the 14 ^th May, 2010, in respect of the applicant. Mr. Saul Woolfson B.L. appeared for the applicant and Ms. Siobhán Stack B.L. for the Minister.

Background

3 2. The applicant claims to be a Zimbabwean national and a member of the minority Ndebele ethnic group. He arrived in Ireland in January, 2002 and applied for asylum. His case focussed on his claim that he was an active member of the Movement for Democratic Change (MDC) and an incident which he claimed took place in the run up to elections in January, 2002 when he said his life was threatened

4 3. In a decision dated the 2 ^nd August, 2002, the Refugee Applications Commissioner made a negative recommendation in respect of the applicant. The basis for this decision was that the applicant's account of an event where he alleged his life was threatened was lacking in credibility. In any event, the Commissioner decided that even if the incident did take place it was more akin to an isolated incident of thuggery and would not amount to persecution for the purposes of refugee law. Moreover, a letter presented by the applicant in support of his asylum claim that purported to be from a representative of the MDC was found to be false (the applicant said this letter was given to him by a relative). It was also noted that the applicant had made a number of recent business trips to countries neighbouring Zimbabwe. Thus, it was thought that if he really was experiencing difficulties in Zimbabwe, he would more likely have relocated to one of these countries.

5 4. The Refugee Appeals Tribunal, in a decision of 19 ^th December, 2002, affirmed the recommendation of the Commissioner, dismissing the applicant's appeal. Once again, a number of credibility concerns were raised, including the forged letter purportedly from the MDC. The Tribunal Member made a number of other findings, including the following:-

6 i (i) the applicant's history of his experiences as a political activist were unconvincing;

7 ii (ii) the applicant seemed to lack political conviction;

8 iii (iii) there was a wide disparity between the evidence given by the applicant to the Tribunal and the information provided in his questionnaire and in his interview with the Refugee Applications Commissioner.

9 5. By letter dated the 24 ^th February, 2003, the applicant was informed that the Minister had refused to afford him a declaration of refugee status. He was advised that as per s. 3 of the Immigration Act 1999, he could make representations for temporary leave to remain. In response to this, the applicant's then legal representative wrote to the Minister in a letter dated the 13 ^th March, 2003. On the issue of refoulement, it was submitted that if the applicant was returned to Zimbabwe "he would continue to experience the same problems which he had previously experienced." The letter reiterated the applicant's claim that he was a member of the MDC and persecuted as a result. No complaint was made regarding the credibility findings made by the Refugee Appeals Tribunal. The letter was accompanied by a number of character references and a substantial body of country of origin information (COI) detailing the political situation and ongoing human rights abuses in Zimbabwe. Further representations were furnished to the Minister on the 20 ^th March, 2003, the 9 ^th April, 2003, the 26 ^th July, 2004, the 24 ^th August, 2004, the 10 ^th February, 2005, and the 4 ^th March, 2005.

10 6. By letter dated the 9 ^th March, 2006, the applicant's solicitor made an application to be readmitted to the asylum process pursuant to s. 17(7) of the Refugee Act, 1996. This was refused, but the applicant then brought judicial review proceedings which were compromised and a fresh s. 17(7) application was made on the 22 ^nd March, 2007. The basis of this application was stated to be a change of circumstances in Zimbabwe and the availability of new country information:-

"There is clear information from reputable sources confirming a heightened level in recent times of harassment, arrest, detention and denial of fundamental rights of any political opponents and/or persons not only who are perceived to be opposed to the ruling regime but also those who are not prepared to declare support for Zanu-PF."

11 As regards the bearing this had on the applicant, it was submitted as follows:-

"Our client is opposed to and does not support the ruling Zanu-PF regime in Zimbabwe. He fears that regime. He instructs us that he will not declare support for this despotic and fascist regime and if refouled our client fears that he will be subject to persecution by virtue of having claimed asylum abroad and/or by virtue of having done so for political reasons. The mere fact of his having made an asylum claim is it is submitted sufficient for him to be considered to have a well founded fear of persecution."

12 Thus, the applicant was no longer relying on membership of the MDC but rather was claiming that he was at risk inter alia by virtue of the fact that he could be perceived as an opponent of the regime, particularly because he was a failed asylum seeker. Reference was made to a number of COI reports in support of the submissions made and a substantial bundle of COI was appended to the application.

13 7. The Minister refused the s. 17(7) application on the 28 ^th May, 2007. As regards the applicant's stated fear of persecution on the basis of imputed political opinion, the Minister referred to COI submitted by the applicant that indicated the targeting by state authorities of members of the opposition, union leaders and civil society activists. It was observed, however, that the applicant to date had not submitted any credible or cogent evidence which could prove his connection to the opposition, or any group opposed to the regime in Zimbabwe. The Minister further reasoned that because the applicant had a passport valid until 2010, he could return to Zimbabwe voluntarily and in safety, and therefore he could not rely on what may happen to him if forcibly returned as a failed asylum seeker.

14 8. The applicant then made an application for subsidiary protection by letters dated the 20 ^th June, 27 ^th June, 2007, and 31 ^st July, 2009. Again, he did not rely on membership of the MDC but claimed to be in fear of "serious harm" by reason of his actual or...