N.N. v The Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 28 June 2007
• Neutral Citation: [2007] IEHC 230
• Date: 28 June 2007
• Court: High Court
• Docket Number: [2005 No. 1028 JR]

[2007] IEHC 230

THE HIGH COURT

[No. 1028 J.R./2005]

N (N) v REFUGEE APPEALS TRIBUNAL (O'BRIEN) & ORS

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 AND THE IMMIGRATION

ACT 1999 AND THE ILLEGEAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

N.N.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (ELIZABETH O'BRIEN), TRIBUNAL MEMBER, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

IMMIGRATION ACT 1999

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

REFUGEE ACT 1996 S16(6)

Abstract:

Immigration - Refugee law - Judicial Review - Certiorari - Credibility - Reassessment of claim - Fair procedures - Whether unfair to reassess without oral hearing - Whether applicant from Zimbabwe or South Africa - Refugee Act 1996

The applicant, who claimed to fear persecution in Zimbabwe as her country of origin, sought to quash a decision of the RAT. The applicant claimed that the decision to reassess her claim as arising in relation to a different country on appeal in the absence of an oral hearing was in breach of fair procedures.

Held by McGovern J., in quashing the decision of the respondent, that the RAT had a duty to act with fairness towards asylum seekers and that it was unjust and unfair to deprive an applicant of the opportunity to make arguments as to the manner in which her claim was being assessed.

Reporter: E.F.

1 Mr. Justice McGovern delivered on the 28th June, 2007.

2 1. The applicant arrived in the State on the 29 ^th March, 2005. She presented as a South African national and made an application for asylum. As part of the asylum process she was obliged to complete a questionnaire and she did so on the 6 ^th April, 2005. In the questionnaire she claimed to be from Zimbabwe and stated her place of birth as Bulawayo. She claims that she would be persecuted if she returned to that country because she is a member and supporter of a group who are opposed to the ruling Mugabe regime and she also fears that if returned as a failed asylum seeker she would be subject to torture, arrest, detention and violence.

3 2. The applicant previously applied for asylum in the United Kingdom in 2002 and her application was rejected. She was deported to Harare on the 10 ^th January, 2005.

4 3. It appears from the evidence that the applicant entered the State on foot of a South African passport but that this may have been a forgery. In any event when her application for asylum was heard before a Refugee Applications Commissioner she was deemed to be Zimbabwean. The Commissioner accepted that she was from Zimbabwe but rejected her claim on credibility issues relating to her well founded fear of persecution. In the course of the hearing the RAC stated:

"It would appear that the applicant is in fact Zimbabwean (see documentation in pouch held on file)."

5 The entire assessment of her claim was based on the fact that she was from Zimbabwe although her account of her alleged and apprehended persecution in that country was not considered plausible or credible.

6 4. The applicant appealed to the Refugee Appeals Tribunal (RAT). There was no oral hearing. The RAT dealt with the applicant on the basis that she was from South Africa. In the course of the report the Tribunal member stated:

"The only reliable evidence of nationality available to me is of South African nationality, by virtue of the passport on file. In all of the circumstances there is insufficient evidence for me to make a finding that the Appellant is a national of Zimbabwe and accordingly I find that the claims she makes in relation to fear of persecution in Zimbabwe are irrelevant to my consideration which must be carried out by reference to her country of nationality, South Africa."

7 Strangely, the Tribunal member goes on to deal with the applicant's previous claim for asylum in the United Kingdom and the fact that she was unsuccessful and deported to Harare in January, 2005. This statement is made...