NSM [Zimbabwe] v Minister for Justice

JurisdictionIreland
JudgeMs. Justice Stewart
Judgment Date09 July 2015
Neutral Citation[2015] IEHC 440
Docket Number[2010 No. 603 J.R.]
CourtHigh Court
Date09 July 2015

[2015] IEHC 440

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2010 No. 603 J.R.]

BETWEEN
N.S.M. [ZIMBABWE]
APPLICANT
AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, REFUGEE APPEALS TRIBUNAL
RESPONDENTS

Asylum, Immigration & Nationality – Judicial review – Appeal against the decision of the Refugee Appeals Tribunal – The Refugee Act 1996 – Test of credibility

Facts: The applicant sought an order of certiorari against the decision of the second named respondent affirming the recommendation of the Office of the Refugee Applications Commissioner that the applicant should not be declared as a refugee. The applicant alleged fear of persecution in the country of origin owing to the imputed political opinion and participation in demonstrations concerning certain political outfits.

Ms. Justice Stewart refused to grant an order of certiorari to the applicant. The Court held that the second named respondent aptly applied the recognized principles of law upholding the negative credibility findings against the applicant owing to the inconsistencies between the evidence and the responses given by the applicant. The Court opined that while assessing the credibility, the demeanour of a witness could be taken into account, which might be decisive in determining the outcome of the case. The Court held that since the appellate court lacked the opportunity to see and hear the witness as the trial judge, thereby the appellate court would be precluded from making any inferences as to the credibility except error in law regarding the procedure by which the credibility findings were being made.

JUDGMENT of Ms. Justice Stewart delivered on the 9th day of July, 2015
1

This is a telescoped hearing for judicial review seeking an order of certiorari quashing the decision of the Refugee Appeals Tribunal (RAT) of 19th February, 2010, which affirms the recommendation of the Offices of the Refugee Applications Commissioner (ORAC) that the applicant should not be declared a refugee. Further, the applicant seeks an order remitting the appeal of the applicant for full reconsideration by a different tribunal member.

PRELIMINARY ISSUES
2

There was a preliminary issue at the outset of the hearing in regard to a necessary extension of time. The applicant was five weeks outside the statutory period of fourteen days within which to initiate judicial review proceedings in cases of this nature. At hearing, counsel for the applicant provided an explanation in that the applicant was in the process of changing solicitors. In the circumstances and with regard to the explanation, the necessary extension of time was granted.

BACKGROUND
3

The applicant is a Zimbabwean national born on 6th November, 1979. She states that she does not have any political affiliation. Her claims of alleged persecution arose from the fact that she took part in a demonstration with other market traders on 11th November, 2008. The demonstrations that day are well documented in the country of origin information and the occurrence of such demonstrations in Zimbabwe is not disputed.

4

The applicant states that she was arrested in the course of the demonstration and maltreated while in custody. She was released after three days, either on bail or on the payment of a fine: the applicant was uncertain of the nature of the payment, and had to report back to the police station regularly. A court date was set. While in custody she was questioned extensively about the demonstration organisers and their political aims, which she claimed to have no knowledge of. She did not attend court on the assigned date. Instead, she moved to a different part of Zimbabwe. She then travelled to South Africa on 3rd January, 2009, and thereafter, departed through Mauritius and France, arriving in Shannon airport on 17th July, 2009. She paid 18,000 rand for her travel and travelled on a false South African passport.

5

The alleged persecution stems from the imputed political opinion, which she asserts government forces believe her to have, because she participated in the demonstration and since she did not turn up for her court date, she states that this is severely punishable. She states that she is further at risk because she has sought asylum in another country. This, the applicant states, is punishable upon return to Zimbabwe.

6

The applicant attempted to enter Ireland using the passport provided by the agent on 17th July, 2009, and claimed asylum at the airport when questioned regarding the authenticity of her travel documentation. She attended the Office of the Refugee Applications Commissioner on 20th July, 2009, and was provided with accommodation and returned on 21st July, 2009, to complete an ASY1 form. The applicant completed a questionnaire on 30th July, 2009, and the s.11 interview was held on 18th August, 2009. A s.13 report was prepared and dated 31st August, 2009, recommending that the applicant should not be declared a refugee.

7

A notice of appeal was issued in respect of the commissioner's decision on behalf of the applicant on 1st October, 2009. The oral hearing in relation to the applicant's appeal took place on 11th February, 2010, at the offices of the Refugee Appeals Tribunal.

IMPUGNED DECISION
8

By decision dated 19th February, 2010, the Refugee Appeals Tribunal affirmed the negative recommendation of the Refugee Applications Commissioner not to declare the applicant a refugee. The tribunal member referred to s.11A of the Refugee Act 1996 (as amended), stating that the burden of proof rests solely on the applicant.

9

The tribunal member gave reasons to conclude that the applicant had not discharged that burden of proof. The evidence that the applicant gave in regard to her lack of knowledge regarding the overall political purpose of the demonstrations on the 11th November, 2008, and the concurrent rallies in four other areas was stated as being implausible to the tribunal member. It is stated in the tribunal decision that ‘[t]he thrust and substance of her evidence is entirely implausible to this Tribunal’ (p.36 booklet). The tribunal member stated that it was unlikely that the applicant took part in the demonstration at all because of the errors and inconsistencies in her evidence, and her lack of knowledge of the specifics of the charges against her.

APPLICANT'S SUBMISSION
10

Counsel for the applicant, Mr. Colm O'Dwyer S.C., submitted that the tribunal member relied on peripheral issues when she stated that it was not believable that the applicant had taken part in the demonstration because the applicant did not know anything about the demonstration organisers or their aims. The applicant argued that the manner in which the tribunal member discounts the applicant in this regard is based almost entirely upon speculation. The applicant further submitted that the issues in relation to mistakes with various dates that she gave to the tribunal are illogical and peripheral findings.

11

The second strand of the applicant's claim is in relation to her having sought asylum in another jurisdiction and being at risk if returned to the country of origin because of that. The tribunal member relied on an operational guidance note (OGN) from the UK Home Office in the decision, which states that nationals who present at Zimbabwean airports as failed asylum seekers are only at risk if they have political affiliations. The applicant submitted that there are serious issues in regard to fair procedures and that this is not country of origin information and, therefore, only guidance; all OGNs begin with the statement that they must be read in conjunction with country of origin information. The applicant asserted that the OGN was not before the tribunal until after the oral hearing with the applicant. The applicant submitted that there is a breach of fair procedures because the applicant never had the opportunity to respond to the information contained in the OGN.

12

The applicant submitted that the RAT decision only deals with the risk at the airport and not the risk from Zanu PF when resettling into the country proper, not just passing through security at the airport. The applicant at all times maintained that the threat she faced was not from airport security services but from the Zanu PF political grouping and their associated militia. Therefore, the applicant argued, the second named respondent fails to deal with the facts of the case. This, counsel submitted, is in an error of fact in the applicant's case. Counsel stated that credibility is not at issue with regard to the second limb of the claim. It is not disputed that she is Zimbabwean and therefore, any doubt regarding her credibility are not related to the indication of the likely persecution if she were to be refoul-ed to her country of origin as it is a fact that she has claimed asylum.

13

Counsel relied on Mr. Justice Clarke's decision of Idiakheua v. Minister for Justice, Equality and Law Reform & anor. [2005] IEHC 150 in that if the tribunal is going to seek out further information, then the applicant should be given the opportunity to respond to such information. Counsel further submitted the UK Upper Tribunal decision of MD (Women) Ivory Coast CG [2010] UKUT 215 (IAC) in relation to the use of OGNs by immigration officials where that tribunal held that these documents are only to be used to provide guidance along with country of origin information.

RESPONDENTS' SUBMISSIONS
14

Counsel for the respondents, Ms. Elizabeth Coogan B.L., in regard to the applicant's submission on the OGN from the UK Home Office, submitted that the OGN point was not pleaded and, thus, the respondents were not on notice of this ground of challenge. The respondents argued that this OGN was only used in the impugned decision insofar as it references a case the applicant had submitted to the tribunal and this is a verbatim quote from that case. The...

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