M.M. (Zimbabwe) v Minister for Justice and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Robert Eagar
• Judgment Date: 21 May 2015
• Neutral Citation: [2015] IEHC 325
• Court: High Court
• Date: 21 May 2015

[2015] IEHC 325

THE HIGH COURT

[No. 945 J.R./2010]

M (M)(Zimbabwe) v Min for Justice & Ors

BETWEEN

M.M. (ZIMBABWE)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND LAW REFORM AND THE REFUGEE APPEALS TRIUBUNAL AND THE ATTORNEY GENERAL

RESPONDENTS

Asylum – Immigration & Nationality – The Refugee Appeals Tribunal – Refusal of asylum – S. 11B (b) of the Refugee Act 1996 – Reg. 5 (2) of the European Communities (Eligibility for Protection) Regulations 2006 – Fear of persecution – Violation of fair procedures – Whether applicant's evidence credible and whether consideration to country of origin information obligatory

Facts: The applicant sought an order for certiorari quashing the decision of the second named respondent affirming the decision of the Refugee Applicants Commissioner denying the refugee status to the applicant. The second named respondent contended that there were credibility findings against the applicant and s. 11B (b) of the Refugee Act 1996 would apply.

Mr. Justice Robert Eagar granted an order of certiorari to the applicant thereby quashing the decision of the second named respondent and remitted the appeal of the applicant to be heard by a different member of the second named respondent. The Court held that the second named respondent erroneously applied s. 11B (b) of the Refugee Act as the Ireland was not the first country that the applicant arrived from her departure from the country of the origin therefore, that provision had no application to the facts of the case. The Court found that the evidence given by the applicant was credible and reasonable. The Court held that the applicant being abducted and raped in the country of the origin mandated the application of reg. 5 (2) of the European Communities (Eligibility for Protection) Regulations 2006 that required consideration of serious harm suffered in the past thereby establishing well founded fear of persecution. The Court found that the second named respondent had a statutory duty to consider troubled circumstances of the country of origin information. The Court held that the decision of the second named respondent clearly vitiated fair procedures of law.

1 1. This is a judgment in a telescoped hearing seeking certiorari of the decision of the second named respondent to affirm the decision of the Refugee Applications Commissioner that the applicant not be declared to be a refugee.

Background

2 2. The applicant is a Zimbabwean national born on the 5 ^th October, 1979. She claimed that she was a supporter for the Movement for Democratic Change (MDC) although she was not a member of the party. In or around April 2008 she attended a church meeting. ZANU-PF, the government party, wrongly believed that this was an MDC meeting and attacked it. The applicant and a number of other women were abducted and taken to a ZANU-PF camp where she was raped by four soldiers. She later contracted HIV which she attributes to this incident. She did not tell her husband about the rape and she could not support herself in Zimbabwe. She applied for asylum in the State in February 2008 and was interviewed by way of a section 11 interview on the 4 ^th August, 2009. The Refugee Applications Commissioner made a recommendation that the applicant's testimony falls short of what would be required in terms of credibility for her to be given the benefit of the doubt and therefore the applicant had failed to establish a well-founded fear of persecution in Zimbabwe based on a Convention ground. She appealed against this recommendation. Solicitors on behalf of the applicant submitted substantial grounds of appeal and in particular substantial country of origin information. The second named respondent heard the appeal on the 22 ^nd February, 2010 and gave her decision on the 31 ^st May, 2010 affirming the recommendation of the Refugee Applications Commissioner.

3 3. Subsequently proceedings were taken to challenge the decision of the second named respondent. The reliefs were in effect an order of certiorari of the decision of the second named respondent and an order remitting the applicant's appeal for hearing by a different member of the second named respondent. These were in effect the main reliefs sought. The grounds upon which the reliefs were sought were as follows:-

1 ) Given the gravity of the allegation made by the applicant about how she was treated by ZANU-PF members and the ample country of origin information verifying that such incidents have regularly occurred in Zimbabwe, the tribunal member's decision was inadequately reasoned. It was incumbent on the tribunal member in making findings regarding the applicant's credibility to state clearly whether she believed the particular attack on and rape of the applicant had occurred, since a favourable finding in this regard ought to have lead to a finding that the applicant was a refugee or might have well have done so even if other aspects of her claim were not accepted.

2 ) The tribunal member's conclusion that the applicant's fear was purely subjective was unreasonable in law in the face of the country of origin information and reached in disregard of Regulation 5(2) of the European Communities (Eligibility for Protection) Regulations 2006. In particular the attack on the applicant was only "random" to the extent that not everyone in the meeting was abducted and she had not been specifically targeted, but it was not random in the sense of being conducted purely for the sexual gratification of the soldiers but was motivated by their beliefs that the persons at the meeting were opposition supporters.

4 4. Prior to dealing with the decision of the second named respondent counsel for the applicant pointed to the section 11 interview which was conducted by an authorised officer of the Refugee Applications Commissioner. In the first place the applicant had provided her passport, her national identity card and her birth and marriage certificates.

5 5. Unfortunately in my copy of the book the questions and answers are not numbered but I will refer to the page where I quote from the section 11 interview.

6 6. At p. 68 the applicant said that she filled out the questionnaire stating that she arrived in Ireland in February 2009 while she actually arrived in February 2008. She was told that this was quite a fundamental inaccuracy and she was asked why she did not proffer the correct date. She answered:-

"Because I did not know. I was told by people to say I came in February. I was in hospital from December 2008. When I went to seek asylum I was transferred to Beaumont Hospital. I thought I was supposed to state the date that I came to this office to apply for asylum not the date I actually arrived in Ireland."

7 7. In p. 69 the applicant was asked why did she leave Zimbabwe and she answered:-

"Fearing for my life because of politics I went to a church meeting. The soldiers came in and started beating up people. I could not run for my life because I was taken to where the soldiers were staying. They were thinking it was a political meeting and not a church meeting. I was questioned about this. I was raped."

8 8. At p. 70 she was asked:

"Why did you go there for the church meeting?"

She answered:-

"Because I am a Roman Catholic from birth. We were going there to be taught before getting holy communion. It was a woman's meeting for putting me from a girl to a woman."

9 9. She was further asked if she could say the Hail Mary prayer and she answered that could not do so in English but could in her mother tongue.

10 10. At p. 71 she was asked how many sacraments are there in the Catholic faith and she did not know. At p. 72 the authorised officer said:

"I would have expected you to know the sacraments and the Hail Mary prayer as a Roman Catholic from birth. Can you comment on this please?"

The applicant stated:-

"I am not happy about it myself" but she did then write down the Hail Mary prayer in Shona.

11 11. At p. 7 she was also asked how many others were captured with her and she replied approximatel 15. At p. 73 she was asked:-

"Are you an MDC member?"

And she answered:-

"No I am not a member. I am a supporter of the MDC."

12 12. She was then asked on the same page:-

"What is the MDC symbol?"

She then displayed her hand as a symbol of the MDC. The MDC symbol is the flag of Zimbabwe together with a further black line and a hand stretched out.

13 13. On p. 75 she was asked:-

"What does that open hand signify or represent?"

She answered:-

Change"

14 14. The authorised officer said that the country of origin information indicates that it represents transparency.

"We have nothing to hide. We carry no weapons. We promote the ideas of a peaceful democracy."

In addition it illustrates that each one of us has the power to change the current political status quo in Zimbabwe. We have that power in our hand and we can exercise it when we vote in this year's elections."

The authorised officer said: "Can you comment on this please?" (this court's emphasis).

The applicant answered "No".

15 15. At p. 75 the authorised officer asked a leading question:-

"Were you the victim of a random attack at the church meeting or were you singled out and targeted for any reason?"

The Applicant said it was random.

16 16. The authorised officer asked:-

"It would appear unlikely that you might be the victim of another random attack after this" and she replied:-

"My husband is Indian. It might be because of this."

17 17. At p. 79 she was asked by the authorised officer:-

"What is the MDC slogan in English and Shona?"

The applicant replied:-

"In English I cannot remember and in Shona it is chinja maitiro chinja"

The authorised officer said:-

"In Shona it is chinja maitiro maitiro chinja which is not...