O.P. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice David Keane
• Judgment Date: 08 May 2019
• Neutral Citation: [2019] IEHC 298
• Date: 08 May 2019
• Docket Number: [2016 No. 657 J.R.]

BETWEEN

O.P.

AND

X.P. (A MINOR)

Y.P. (A MINOR)

AND

X.P. (A MINOR)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

THE INTERNATIONAL PROTECTION TRIBUNAL, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2019] IEHC 298

[2016 No. 657 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Refugee status – Order of certiorari – Rationality – Applicants seeking refugee status – Whether the respondent’s decision failed the test of rationality or reasonableness

Facts: The International Protection Appeals Tribunal (the IPAT), then known as the Refugee Appeals Tribunal, in a decision made under s. 16(2)(a) of the Refugee Act 1996 dated 14 July 2016, affirmed a recommendation of the Refugee Applications Commissioner that the first applicant and, by extension, the other applicants as her minor children, should not be declared to be refugees. On 18 October 2016, Humphreys J gave the applicants leave to apply for an order of certiorari quashing the IPAT decision. In their statement of grounds, the applicants enumerated separate grounds of invalidity of the IPAT decision that, essentially, resolved into specific arguments. The first was that the decision failed to properly apply the requirements of Regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006 and 2011, then applicable, concerning the necessary approach to the assessment of facts and circumstances by a protection application decision-maker. The second was that the decision failed the test of rationality or reasonableness, as authoritatively restated by the Supreme Court in Meadows v Minister for Justice, Equality and Law Reform and Ors [2010] IESC 3, because of the manner in which the tribunal accepted the credibility of some parts of the applicant’s unsupported statements, while rejecting others without reference to any rational analysis or cogent reason for drawing that distinction.

Held by the High Court (Keane J) that the section of the IPAT decision headed ‘Analysis of Credibility’ amounted to little more than a bare recital of those unsupported statements of the first applicant that the tribunal accepted and those that it did not, devoid of any significant reasoning or analysis to support its positive and, more particularly, negative findings. Keane J held that the IPAT decision did not make any attempt to identify, much less apply, an overall approach to the assessment of the first applicant’s credibility, whether in accordance with the requirements of Reg. 5(3) of the 2006 Regulations or with the principles in IR v Minister for Justice, Equality and Law Reform and Anor [2009] IEHC 353. Keane J was satisfied that the applicants had discharged the onus of proof upon them to satisfy him that the decision failed the test of rationality or reasonableness, as authoritatively restated by the Supreme Court in Meadows, because of the manner in which the tribunal accepted the credibility of some parts of the applicant’s unsupported statements, while rejecting others, without reference to any rational analysis or cogent reasoning in either case, beyond the bare assertion that the rejected parts did not amount to ‘clear and coherent evidence’, without ever explaining what was unclear about them or incoherent in them.

Keane J held that he would grant an order of certiorari quashing the IPAT decision and would remit the applicants’ appeal against the refusal of a recommendation that they be granted a declaration of refugee status to the IPAT for a fresh determination.

Order granted.

JUDGMENT of Mr Justice David Keane delivered on the 8th May 2019

Introduction

1 This is the judicial review of a decision of the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal (“the IPAT”), dated 14 July 2016 and made under s. 16(2)(a) of the Refugee Act 1996, as amended (“the Refugee Act”), affirming a recommendation of the Refugee Applications Commissioner (“the Commissioner”) that the first applicant and, by extension, the other applicants as her minor children, should not be declared to be refugees (“the IPAT decision”).

2 On 18 October 2016, Humphreys J gave the applicants leave to apply for an order of certiorari quashing the IPAT decision.

3 At the time when leave was granted, the International Protection Appeals Tribunal was known as the Refugee Appeals Tribunal. When s. 71(5) of the International Protection Act 2015 (‘the Act of 2015’) came into force on 31 December 2016, the former was substituted for the latter in these proceedings by operation of law.

Background

4 The first applicant is a national of Zimbabwe, born in 1986. The three other applicants are her dependent children.

5 The applicants applied for asylum on 17 September 2014 upon their arrival in the State at Dublin Airport. In essence, the first applicant claims to have a well-founded fear of persecution on grounds of imputed political opinion and membership of a particular social group (effectively, her mother's family) if returned to Zimbabwe, because of her mother's perceived opposition to the ruling political party there (despite her father's membership of it and status as national army veteran), which resulted in the rape of the applicant in 2002 when she was 15 years old by members or supporters of that party as a calculated act of political violence.

6 In short summary, the applicant's personal narrative of subsequent events was as follows. Her mother, from whom she had become separated, fled to Canada in 2002, obtaining refugee status there in 2006 (as evidenced by certain documentation submitted to the decision-maker on behalf of the applicants), whereas the first applicant fled to South Africa, obtaining false identity documents that allowed her to remain there.

7 The applicant stated forthrightly during her first interview immediately upon arrival in the State that, while living in South Africa, she had returned to Zimbabwe twice - once in 2013 and once in 2014 for three days each time - using her false South African identity documentation, having been sent there by her South African employer, an office automation equipment company, that required her to travel on assignment to the capital of Zimbabwe, Harare, to conduct market research into the demand for its products or services there, as it was then contemplating opening a branch.

8 The first applicant's persecutors located her in South Africa in 2014 (probably, she believes, through her former partner, a subsequently convicted criminal, at whose hands she had suffered domestic violence and who was an expatriate supporter of the governing party in Zimbabwe).

9 Her flatmate was attacked (in what the first applicant believes to be a case of mistaken identity, because the attackers used her name in berating her flatmate during the assault about her support and that of her mother for the political opposition in Zimbabwe), triggering her onward flight to Ireland with her children in September 2014.

10 The first applicant was interviewed by an immigration officer in accordance with the requirements of s. 8 of the Refugee Act on 18 September 2014 and completed an asylum application (“ASY-1”) form on that date.

11 Having completed the necessary questionnaire for the Office of the Refugee Applications Commissioner (“ORAC”) on 26 September 2014, the first applicant was then interviewed by an authorised officer of the Commissioner, pursuant to s. 11 of the Refugee Act, on 1 October 2014.

12 ORAC wrote to the applicant on 23 October 2014, enclosing a report, dated 10 October 2014, pursuant to s. 13 of the Refugee Act, recommending that the applicants should not be declared to be refugees on the basis that the first applicant had failed to establish, to a reasonable degree of likelihood, that she and her children would be subjected to persecution if returned to Zimbabwe.

13 Through their legal representatives, the applicants submitted a notice of appeal, dated 30 October 2014. That document has not been exhibited in these proceedings.

14 The IPAT decision is dated 14 July 2016 and was furnished to the first applicant under cover of a letter, dated 15 July 2016. It concludes that the first applicant had failed to establish that the applicants would be at risk of persecution if returned to Zimbabwe.

Procedural history

15 The applicants sought, and were granted, leave to bring these proceedings on 18 October 2016, based on a statement of grounds, dated 12 August 2016, grounded on an affidavit of the first applicant, sworn the previous day. The Minister filed a statement of opposition, which is effectively a bare traverse, on 16 February 2017.

Grounds of challenge

16 In their statement of grounds, the applicants enumerate six separate grounds of invalidity of the IPAT decision that, essentially, resolve into four specific arguments.

17 The first is that the decision fails to properly apply the requirements of Regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006 and 2011 (“the 2006 Regulations”), then applicable, concerning the necessary approach to the assessment of facts and circumstances by a protection application decision-maker. Those Regulations gave effect, at the material time, to Council Directive 2004/83/EC (“the Refugee Qualification Directive”) and Regulation 5 of the former transposes Article 4 of the latter into the law of the State.

18 The second is that the decision fails the test of rationality or reasonableness, as authoritatively restated by the Supreme Court in Meadows v Minister for Justice, Equality and Law Reform and Ors [2010] IESC 3, [2010] 2 IR 701, because of the manner in which the tribunal accepted the credibility of some parts of the applicant's unsupported statements, while rejecting others without reference to any rational analysis or cogent reason for drawing that distinction.

19 The third argument is that the IPAT decision fails to properly apply the rider, or final...