R.N. v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 29 November 2022
• Neutral Citation: [2022] IEHC 669
• Docket Number: [Record No. 2022/320JR]

Between

R.N.

Applicant

and

The International Protection Appeals Tribunal

and

The Minister for Justice and Equality

Respondents

[2022] IEHC 669

[Record No. 2022/320JR]

THE HIGH COURT

JUDICIAL REVIEW

International protection – Credibility – Future risk – Applicant challenging the first respondent’s decision to recommend refusal of his claim for international protection – Whether the first respondent erred in law in making adverse credibility findings

Facts: The applicant, a national of Zimbabwe, made a claim for international protection in the State on the basis that, if he were returned to Zimbabwe, he would face persecution/serious harm. He applied to the High Court challenging the decision of the first respondent, the International Protection Appeals Tribunal, to recommend refusal of his claim for international protection on the basis that the first respondent erred in law in making adverse credibility findings and in not considering the possible exposure of the applicant to future persecution in the light of known conditions in Zimbabwe. The applicant further claimed that the decision was vitiated by error of fact.

Held by Phelan J that she should not intervene to quash the decision on the basis of credibility findings made by the first respondent as she had not been persuaded that the conclusions were legally flawed because they were arrived at using an unfair process or based on incorrect facts or tainted by conjecture or speculation or that the reasons drawn from such facts were not cogent or bore no legitimate connection to the adverse finding to such an extent as to vitiate the decision or otherwise. Phelan J held that the case fell to be distinguished from I.R. v MJELR & Refugee Appeals Tribunal [2009] IEHC 510 and O.N. v RAT [2017] IEHC 55: firstly, in the absence of any claimed risk of harm on grounds of ethnicity past or future, the first respondent could not properly be faulted for not considering it; secondly, the first respondent did not ignore the assessment of future risk. Phelan J held that the first respondent proceeded to address that question by reference to its characterisation of the applicant’s claim, all material elements of which had been rejected, with the exception of the fact that the applicant was a national of Zimbabwe. Phelan J noted that it was not part of the applicant’s claim that he was at risk because he was a national of Zimbabwe. Where the Tribunal rejected all material parts of the claim, Phelan J was satisfied that there was no basis upon which the Tribunal could properly assess future risk in the case. She noted that there was no accepted “island of fact” by reference to which such an assessment could be conducted. She held that this case differed from O.N. in that the first respondent did not attach any weight to the warrants but rejected them outright as “unreliable evidence in support of the applicant’s claim for protection”. Phelan J held that the conclusion clearly expressed was that the evidence could not be relied upon whether the claim for protection related to past or future harm. She noted that it was not disputed by the applicant in evidence that he told the first respondent that he did not bring the warrants with him to avoid being found with anything suspicious on him. Phelan J held that if this was what the applicant told the first respondent, then no error of fact had been recorded. Furthermore, Phelan J held that it was not erroneous for the Tribunal to query why the applicant had not brought the warrants with him when there were in fact two warrants in existence, on the basis of the facts claimed, when the applicant left Zimbabwe.

Phelan J held that the applicant was not entitled to the relief sought.

Relief refused.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 29 ^th day of November 2022.

INTRODUCTION

1 . The Applicant is a 27-year-old man from Zimbabwe who has made a claim for international protection in the State. In these proceedings, he challenges the decision of the First Respondent (hereinafter “the decision”) to recommend refusal of his claim for international protection on the basis that the First Respondent erred in law in making adverse credibility findings and in not considering the possible exposure of the Applicant to future persecution in the light of known conditions in Zimbabwe. The Applicant further claims that the decision is vitiated by error of fact.

BACKGROUND

2 . The Applicant made a claim for international protection to the Second Respondent on 9 ^th of August, 2019 on the basis that, if he were return to Zimbabwe, he would face persecution/serious harm. In his application for international protection he identified his ethnic origin as ‘Ndebele’ and confirmed that he spoke English and Ndebele.

3 . In advancing his claim, the Applicant said that he was born in 1994 in Johannesburg, South Africa. His parents were from Zimbabwe and the family moved back to Bulawayo, Zimbabwe, a very short time after he was born. The Applicant has two younger brothers and his father died in 2003. When he finished secondary school, he studied construction studies at Bulawayo Polytechnic before working for a number of years as a junior construction supervisor in Bulawayo.

4 . The Applicant's two younger brothers are gay. The Applicant claims that on the 31 ^st of July, 2019 he received a telephone call from his mother in or around 2 ^pm while he was at work. She was upset and she told the Applicant that his two younger brothers had been taken into police custody because they were gay. She said that the men who had arrested his brothers had given her an arrest warrant in connection with their arrest.

5 . The Applicant claims to have left work immediately and gone directly to the Central Police Station in Bulawayo. Despite waiting several hours, the Applicant was told that his brothers were not there but checks were made to see if they were in a different district. He finally went home without any information as to his brothers' whereabouts. He claims that he returned to the Central Police Station in Bulawayo with his mother the next morning on the 1 ^st of August, 2019. Despite waiting at the police station all day, they received no information as to the whereabouts of the Applicant's brothers. The Applicant claims to have returned to Central Police Station on his own on the 2nd, 3 ^rd and 4 ^th of August, 2019 but there was still no news of his brothers.

6 . The Applicant claims to have gone to work as normal on the 5 ^th of August, 2019 but he received a call from his mother who said that there were police officers looking for him because they said he was gay. The Applicant left the construction site at which he was working and went to a location on the other side of Bulawayo where he stayed until about 6 ^pm before returning home. When he got home his mother told him that the men who had come that morning were different men to the ones who had arrested his brothers and that they had been in a different car. She did not recognise them. They left an arrest warrant with her before they left.

7 . The Applicant claims to have decided that he needed to leave Zimbabwe for his safety. He made his way to South Africa and then arranged to travel to Ireland via Dubai. He traveled to Ireland on a false South African passport. He destroyed the passport before he arrived in Ireland on the 8 ^th of August, 2019.

8 . In his long form application completed in September, 2019, the Applicant claims (in response to question 68) a fear that he would be arrested for looking for his brothers and could disappear in the same way they did. Similarly, in response to question 87, he reiterated that he was at risk because he had been looking for his brothers.

9 . In accordance with ss. 35 and 70 of the International Protection Act 2015 [hereinafter ‘the 2015 Act’], the Applicant was interviewed on the 2 ^nd of September, 2021 in relation to his application for international protection. When asked during the interview why the police targeted him, he suggested that it could be because he had been looking for his brothers. He confirmed that he was not gay but that he is being targeted under suspicion of being gay adding “ that was just a reason for picking me up” and “ they do a lot of things that are above the law.”

10 . He was asked why the police would leave an arrest warrant rather than a letter or summons. He said he could not answer for them but that it could have been intended for use by them to take him. He made the point that the warrant was not even from his district. He said this made him fearful and he did not know if it was a real warrant. When it was put to him that the warrant had purportedly issued in Hwange (at some distance from Bulawayo where the Applicant lived) and did not have an official insignia or signature, he replied that these factors made him very suspicious as to how the authorities were approaching matters. He said the police were falsifying records and making up things. He considered that they had a reason to pick him up and had their own agenda.

11 . The Applicant claims that his mother has told him that unknown men have come looking for him since he left Zimbabwe and left fresh arrest warrants at the house dated the 22 ^nd of December, 2020 and the 19 ^th of August, 2021. The Applicant's mother posted those two warrants, as well as the warrant that had been left on the 5 ^th of August, 2019, to the Applicant in Ireland.

12 . The Applicant and his mother have had no news of the Applicant's brothers since they were taken from the family home in Bulawayo on the 31 ^st of July, 2019.

13 . The Applicant relies on country of origin information (hereinafter “COI”) which demonstrates that Zimbabwean police and authorities are homophobic, as is Zimbabwean society generally. The Applicant claims that he is afraid that he will be harmed if he is returned to Zimbabwe. He fears...