P.B.N. [Dr Congo] v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy,Mr. Justice Mac Eochaidh
• Judgment Date: 21 February 2014
• Neutral Citation: [2014] IEHC 9
• Date: 21 February 2014
• Court: High Court
• Docket Number: [No. 2009/227/J.R.]

BETWEEN

P. M.

APPLICANT

-AND-

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND FERGUS O”CONNOR, REFUGEE APPEALS TRIBUNAL

RESPONDENTS

[2014] IEHC 9

[No. 2009/227/J.R.]

THE HIGH COURT JUDICIAL REVIEW

Judicial review - Refugee Appeals Tribunal - Refugee status - Fear of persecution - Political opinion - Credibility findings - Reasonable explanation for failure to claim asylum upon arrival

This was an application for judicial review of a decision of the Refugee Appeals Tribunal. The applicant, P.M., was a Zimbabwean national who arrived in Ireland in September 2002. She was granted permission to remain in the State on the conditions that she would not take up employment and that she would leave before November 2002. However, she took up a position as a child minder for a family in Dublin for 6 years. The family then left the State and P.M. applied for asylum in July 2008. The applicant claimed to fear persecution as a result of her political involvement in the Movement for Democratic Change (MDC). She stated that the opportunity to come to Ireland presented an easy way for her to escape this fear. She further claimed that she did not seek asylum on her arrival as she was safe with the family for whom she worked. She also asserted that the deteriorating political and human rights situation since her arrival made her a refugee sur place. The Refugee Applications Commissioner refused a recommendation of refugee status which was affirmed by the Refugee Appeals Tribunal. The applicant sought to quash this decision.

The applicant challenged the decision on the following grounds: the Tribunal member erred in making a credibility finding that the applicant failed to provide a reasonable explanation for not claiming asylum on arrival; the Tribunal erred in making a credibility finding that the applicant could have claimed asylum in a transit country while en route to Ireland; there was no country of origin information or reasons provided for the determination that the applicant would be safe in Zimbabwe. The finding of the Tribunal Member triggered section 11 B (d) of the Refugee Act 1996, which set out that in assessing the credibility of an applicant, the Tribunal Member would have regard to ‘whether the applicant has provided a reasonable explanation to show why he or she did not claim asylum immediately’. It was claimed that this section was not applicable to the applicant as her application was grounded on events occurring after her entry to the state.

Held by Mac Eochaidh J., given that the applicant may have been deported at any moment to her ‘alleged persecutors’, it was not unreasonable to reject the explanation for not immediately applying for asylum. The Court then considered whether section 11 B (d) was disapplied as this was a refugee sur place application. The Court found that the core of the refugee claim related to past participation in the MCD and past persecution—not events occurring after flight. As such, it was found that the section was correctly applied by the Tribunal member . Moreover, the Court found that the negative credibility finding based on the failure of the applicant to claim asylum in the transit countries was lawful and reasonable. Finally, the Court considered whether the Tribunal was entitled to decide that the applicant could safely return to Zimbabwe. The Court found that the complaint was premised on a misunderstanding of the finding. The Tribunal never found a well founded fear of persecution and therefore, there was nothing from which the applicant needed protection. It was concluded that the decision of the Tribunal Member was appropriate.

The application for judicial review was therefore dismissed.

Mr. Justice Mac Eochaidh

JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 14th day of January 2014

1 This is an application for judicial review of a decision of the Refugee Appeals Tribunal refusing a recommendation of refugee status. Leave to seek judicial review in this matter was granted by Clark J. on the 18th December 2012.

2 The applicant is a Zimbabwean national from Harare who was born on 5th December 1970 and who came to Ireland on 26th September 2002. The applicant was granted leave to land in the State on her arrival as citizens of Zimbabwe did not require an Irish visa at that time. The applicant was granted permission to remain in the State on conditions that she would not take up employment or engage in any business or profession and not remain later than 10th November 2002. However, on her arrival the applicant took up a position working as a child-minder and au pair for a family in Dublin. Having worked for this family for nearly 6 years and following their departure from the State, the applicant made application for asylum on 2nd July 2008.

3 The applicant claims to fear persecution because of her political opinion related to her involvement with the Movement for Democratic Change (“MDC”) and says that the opportunity to come to Ireland and work as a child minder presented an easy way for her to escape her fears. She states that she did not claim asylum on her arrival in Ireland as she was safe with this family and only applied for asylum when the family returned to South Africa in December 2007. She claims that while she originally left Zimbabwe due to her involvement with the MDC, the political and human rights situation in Zimbabwe has deteriorated since her departure and that she has thus become a refugee sur place.

4 The applicant”s claims were assessed by the Office of the Refugee Applications Commissioner who refused a recommendation of refugee status and also made a finding pursuant to s. 13(6)(a) of the Refugee Act 1996 that the applicant showed either no basis or minimal basis for the contention that she is a refugee. Such a finding deprives an applicant of an oral hearing on an appeal. The applicant appealed the decision to the Refugee Appeals Tribunal which conducted a “papers only” appeal. The Tribunal decision dated 29th January 2009 affirmed the recommendation given at first instance and it is this decision which the applicant seeks to have quashed in these proceedings.

5 The applicant was granted leave to challenge the decision on the grounds that: (i) the Tribunal Member erred in making a credibility finding that the applicant had not provided a reasonable explanation for failing to claim asylum when she came to Ireland in 2002; (ii) the Tribunal erred in making a credibility finding that the applicant could have claimed asylum in a country she transited through en route to Ireland; (iii) there was no country of origin information supplied or reasons provided for the determination that the applicant would be safe in Zimbabwe now that the Zanu-PF and MDC parties were now in power; (iv) the Tribunal erred in failing to put any country of origin information in support of the above finding to the applicant if such information was sourced; (v) the Tribunal failed in its obligations to consider all the relevant facts as they relate to the country of origin pursuant to the EC (Eligibility for Protection) Regulations 2006; and (vi) the Tribunal failed to consider the applicant”s credibility in the context of the political and human rights situation in Zimbabwe over the two years previous to the decision.

6 The Tribunal Member found that the applicant failed to provide a reasonable explanation for not claiming asylum immediately on arrival in the State. Such a finding triggers the operation of Section 11B(d) of the Refugee Act 1996 which provides:

‘the Tribunal…in assessing the credibility of an applicant for the purposes of….the determination of an appeal…shall have regard to the following:

…(d) where the application was made other than at the frontiers of the State, whether the applicant has provided a reasonable explanation to show why he or she did not claim asylum immediately on arriving at the frontiers of the State unless the application is grounded on events which have taken place since his or her arrival in the State

7 Mr. O”Dwyer B.L., counsel for the applicant, challenges the s. 11B(d) finding by claiming that the applicant did provide a reasonable explanation to the effect that she felt safe because she had a job working with a family here and that she initially believed that she would be able to return to her home country when the situation there improved. Counsel noted that the situation in Zimbabwe in fact worsened considerably while the applicant was living in Ireland and states that it is clear that a person can become a refugee sur place because of a deterioration of the situation in their home country. It was submitted that s. 11B (d) was not relevant to the assessment of the applicant”s claim as it is expressly stated not to apply when an application is grounded on events which have taken place after arrival in the State. It is contended that the application for asylum in this case is based largely on events which occurred since she arrived in Ireland in 2002.

8 Ms. Farrell B.L. for the respondent, states that the Tribunal found that the applicant had provided no evidence, other than her own account, of membership of the MDC; that she lacked credibility; that she had not given a reasonable explanation for failing to apply for asylum for almost six years after she entered the State; and that her claim to be a refugee sur place was rejected. Counsel asserts that the Tribunal Member was entitled to have regard to the provisions of s. 11B(d) Refugee Act 1996 and to reject the applicant”s credibility. Further, counsel submits that the Tribunal was entitled to reject the explanation given by the applicant as unreasonable and to find that ‘This is not a credible explanation and it is considered that if the Applicant had the fear she relates at the time she came here...