S (E) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 15 July 2009
• Neutral Citation: [2009] IEHC 335
• Date: 15 July 2009
• Court: High Court
• Docket Number: [No. 625 J.R./2008]

[2009] IEHC 335

THE HIGH COURT

[No. 625 J.R./2008]

S (E) v Refugee Appeals Tribunal

BETWEEN/

E.S.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(6)(C)

REFUGEE ACT 1996 S13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 196

IMMIGRATION

Asylum

Credibility - Fear of persecution - Notice of appeal drafted without regard to circumstances of case - Fear of persecution by reason of membership of social group - Fear of persecution based on HIV positive status - Fear of persecution based on return as failed asylum seeker - Absence of attempt to challenge substantive findings - Whether substantial ground for review - Alleged failure to consider claim to fear persecution if returned as failed asylum seeker - Alleged error in finding that medical status relevant to application for leave to remain - Ambiguity as to basis for refusal - Absence of distinct conclusion on issue of nationality - Importance of establishing country of origin - Onus on applicant - Obligation to make finding or consider whether further enquiries possible - Application for extension of time - Refugee Act 1996 (No 17), s 13 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave granted (2008/2JR - Cooke J - 15/7/2009) [2009] IEHC 335

S (E) v Refugee Appeals Tribunal

Mr Justice Cooke

1 The applicant is a 30 year old single woman who arrived in the State on the 6^th February 2005, having travelled from South Africa on a South African passport which she said was false and which she had bought from a man. She applied for asylum here on the 26^th April, 2005.

2 The applicant claimed that she had Zimbabwean nationality and that she had been forced to flee Zimbabwe because she had found out in December of 2002 that her father had arranged to force her to marry an older man, a Mr. L., who already had three wives. Shortly before the wedding in June 2003, her father died and the wedding was postponed. In spite of efforts to repay the bride price already received by her father, Mr. L. refused and the village elders decided that the marriage should proceed. She decided to leave Zimbabwe and when she had saved enough money, she left for South Africa in February 2004. She stayed with a friend from school and got a job in a shop. She went back a few times to Zimbabwe to visit her mother during the following year. Sons of Mr. L. discovered her whereabouts, came to see her, and threatened her with death if she did not return to marry their father. She said she decided to leave South Africa and come to Ireland where her sister, P.S., was already living.

3 In a report dated 15^th August, 2005 the applicant's claim to refugee status was recommended for rejection by the Refugee Applications Commissioner, essentially upon the ground that the story she told was not credible. In particular, the Commissioner's authorised officer had doubts as to whether the applicant was a national of Zimbabwe, as she claimed, for the following reasons:

4 a) In 2001 in her Section 11 interview on her asylum application her alleged sister, P.S., had said her sister was 16 years old, which would mean that the applicant's age was 20 and not 26;

5 b) P.S.'s documents relating to her parents have no authenticated link to the applicant;

6 c) The applicant was unable to place her home town on an unmarked map of the Bulawayo region;

7 d) She could not correctly describe the national flag of Zimbabwe;

8 e) Research did not confirm the existence of the church she said she attended and had named in the Bulawayo diocese.

9 4. In addition to doubting credibility, the report relied on a number of other factors as undermining her claim to a well-founded fear of persecution in Zimbabwe as follows:

10 a) In view of the fact that at that point the Irish authorities considered her South African passport to be authentic, she came from a designated safe country;

11 b) She failed to apply for asylum between her arrival here on 6^th February and 26^th April, 2005 because she said she was unaware that she could do so although her sister was here and had done so and she was in contact with her sister;

12 c) Her failure to apply for asylum in France suggested her intention was always to go to Ireland, which undermines her claim to fear persecution;

13 d) Country of origin research disclosed no references to arranged or forced marriages in Zimbabwe while legislation made such marriages illegal in South Africa;

14 e) She had never reported her problems in Zimbabwe to any authority and country of origin information indicated that both in Zimbabwe and South Africa there were agencies which helped women in such circumstances;

15 f) The applicant stated she had no problems with the authorities so she had the option of relocating within Zimbabwe or of going to South Africa;

16 g) Her return trips to visit her mother in Zimbabwe suggested an absence of any concern about being forced into marriage there.

17 5. The report made an express finding by reference to paragraph c) of s. 13 subs. 6 of the 1996 Act, - failure to apply for asylum as soon as practical on arrival, - thereby excluding an oral hearing on appeal.

18 6. On the 1^st September, 2005 a notice of appeal was lodged against that report. The notice was accompanied by a ten page schedule headed "grounds of appeal" which curiously bears the date 9^th June, 2004 and is devoted extensively to the alleged failure of the authorised officer in the report to consider adequately the applicant's reasons for fearing persecution in Zimbabwe in the form of being forced to undergo female genital mutilation, something which had never been mentioned by the applicant herself.

19 7. It is evident to the Court from the emphasis placed on this ground and on the other submissions made in the schedule that these grounds of appeal had been drafted or lodged without any or only minimal regard to the actual circumstances of the applicant's case and to the contents of the report under appeal. Thus, submissions were also made as to a fear of persecution on grounds of religion and ethnicity which had never been mentioned by the applicant. It is difficult to avoid the impression that these grounds of appeal constitute some form of standard generic appeal capable of adaptation from case to case but which has not actually been adapted to this case. Thus there are general submissions of an abstract nature with references to case law on the subject of credibility and the burden of proof but without any attempt to link them to the details of the Contested Report. Even in the one section which might be said to have a connection to a real grievance advanced by the applicant namely, the matrimonial threats of Mr. L., the ground is phrased at one remove from the precise issue in the case: "Applicant has been denied her fundamental right to marry a person of her own choosing and compelled to marry a person not chosen by her." The applicant has never married.

20 8. Almost two years later, on 9^th August 2007, the applicant's solicitors lodged with the Tribunal a new schedule headed "further submissions" together with a large volume of documentary country of origin information relating to conditions in Zimbabwe together with copies of a series of previous decisions of the Tribunal. In the opening lines of this document the Tribunal was requested to note that the references to female genital mutilation in the papers already lodged were in error. The relevance of the references to religious and ethnic grounds was not explained. The Court appreciates that mistakes can occur. It is also alive to the reality of the cases in this list, namely that their volume and urgency are such that practitioners are often under considerable pressure and that efficiency in managing a case load requires that administration is streamlined by all reasonable methods available.

21 9. Nevertheless the Court feels obliged to draw attention to the dangers that arise in this regard because it appears to have become a regrettable characteristic of proceedings in this area that undue reliance is placed on the "cut and paste" approach to legal draftmanship. In the first place, extensive submissions which are wholly irrelevant to the actual circumstances of the case not only waste the time of the Court and the other parties but run the risk of creating doubts in the mind of the Court as to the seriousness of the case presented as well as undermining the credibility of any remaining submissions even when relevant to the real issues in the case. Secondly, reliance on standard form legal submissions not linked to the facts and issues of a case incurs the risk, especially where there is no oral hearing before the Tribunal, that the appeal may well be determined promptly before any further submissions are lodged with the result that the applicant's true case is not fully presented.

22 10. In the present case the further submissions presented a series of new arguments and grounds as follows:

23 a) The applicant is said to fear persecution by reason of a membership of a particular social group, namely women and/or women perceived to be supporters of the MDC opposition party in Zimbabwe;

24 b) The applicant fears persecution if returned to Zimbabwe as a failed asylum seeker associated with opposition to the ruling Zanu PF regime;

25 c) The applicant fears persecution by reason of her membership of a particular social group comprising people who are HIV positive; and,

26 d) The applicant fears persecution by virtue of her nationalityper se.

27 11. Apart from stating these assertions of fears of persecution for these reasons, the further submissions are made up exclusively of references to accompanying country of origin information designed to...