M (L) & M (N)(A Minor) v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 16 February 2010
• Neutral Citation: [2010] IEHC 132
• Docket Number: [No. 62 J.R./2009]
• Court: High Court
• Date: 16 February 2010

[2010] IEHC 132

THE HIGH COURT

[No. 62 J.R./2009]

M (L) & M (N)(A Minor) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN/

L. M. AND N. M. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND L. M.)

APPLICANTS

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S16(8)

IMMIGRATION

Asylum

Decision - Reasons - Credibility - Examination of applicant - Decision materially unsound - Duty of tribunal to put matters to applicant for comment and rebuttal - Lack of clarity of basis upon which decision reached - Refugee Act 1996 (No 17) s 16 - Certiorari granted (2009/62 JR - Cooke J - 16/2/2010) [2010] IEHC 132

M (L) v Refugee Appeals Tribunal

Mr. Justice Cooke

1 I am satisfied that it has been established with sufficient clarity that the Tribunal decision in this case is materially unsound, such that it is necessary and appropriate to annul it and require the assessment to be made again.

2 In this case, the applicant, having left Zimbabwe applied here for asylum and essentially put forward three particular grounds as to why she feared persecution if returned to Zimbabwe. These included the risks she said she faced if she returned as a failed asylum seeker and a risk of harm and discriminatory mistreatment as somebody now suffering from HIV/Aids. The third matter, and I think it is fair to say the most substantial, original ground for a certain fear of persecution, related to her claim to have suffered harassment and mistreatment as a perceived and real supporter of the opposition Movement for Democratic Change (MDC) in Zimbabwe.

3 The Tribunal member deals with all three of these grounds and rejects them. But in the Court's view, it is the manner in which the Tribunal decision deals with the primary ground, the political ground, that gives rise to the greatest concern in this case. The applicant, in making her claim and in the section 11 interview, as recorded in the section 13 report, gave a detailed account of what she said was the experience she had as a member of the MDC in Zimbabwe, even to the extent of her father having been killed. She also referred to specific incidents where she claimed to have been assaulted and suffered other incidents of harassment. These are fully recited and recorded in the opening part of the Tribunal decision, under the heading "Summary of the Applicant's Claim."

4 That claim had been also considered by the Commissioner in the section 13 report and effectively rejected as lacking credibility. What is of concern about this Tribunal decision, firstly, is that while the claim is fully set out and the submissions made on behalf of the applicant and the Commissioner are recited, the decision does not make any comment of any substance on the credibility of that claim. Instead, the Tribunal member, based largely upon country of origin information, takes the view that the situation in Zimbabwe has changed such that the fear expressed by the applicant under this heading, was now no longer realistic, in effect.

5 There is in this regard, a possibly a technical aspect to the Tribunal decision, which seems to indicate that the Tribunal member erred in respecting the requirement of section 16, sub-section 8 of the Act, in that at least two documents are referred to in the Tribunal decision which do not appear to have been put to the applicant at the hearing, and indeed, one is expressly referred to by the Tribunal member as having been located by the Tribunal member...