T.G. v International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms Justice Bolger
• Judgment Date: 09 November 2022
• Neutral Citation: [2022] IEHC 618
• Year: 2022
• Court: High Court
• Docket Number: [2020/564 JR]

Between

T.G.

Applicant

and

International Protection Appeals Tribunal

and

Minister for Justice and Equality

Respondents

[2022] IEHC 618

[2020/564 JR]

THE HIGH COURT

International protection – Credibility – Country of origin information – Applicant seeking international protection – Whether the first respondent breached constitutional justice and fair procedures in finding that the lack of medical evidence before the first respondent undermined the applicant’s credibility

Facts: The applicant, a national of Zimbabwe, arrived in the State on 9 February 2019 and applied for international protection. He claimed he had been overheard in a bar speaking in negative terms about the President after which he was taken away by some men unknown to him, detained and tortured over four days. He was accused of being a member of the Mthwakazi Republic Party (MRP) which he initially denied but then falsely admitted to in order to leave. The men released him and ordered him to attend an MRP meeting, but he did not do so. He said he attempted to obtain treatment at hospital for his injuries but was refused because he did not have a police report. He received threatening phone calls and some days later his house was ransacked after which he fled Zimbabwe. The applicant’s application was refused and he appealed. On 10 June 2020, the first respondent, the International Protection Appeals Tribunal, refused his appeal on the basis of adverse credibility findings. The applicant applied to the High Court seeking an order of certiorari quashing the Tribunal’s decision under s. 46(3)(a) of the International Protection Act 2015. The applicant submitted the following as the issues to be determined by the Court: (a) whether the Tribunal’s finding that it did not make sense that the applicant was accused of membership of the MRP when he had no previous connection to the party was based on pure personal speculation and/or was irrational or unreasonable, or whether the Tribunal failed to take into account the heated political climate in Zimbabwe, as apparent from relevant country of origin information (COI); (b) whether the Tribunal’ finding that the applicant’s statement that he was unable to receive medical treatment without a police report was not credible because it was not supported by reliable COI, and its direction to itself to accept this claim only if COI documenting that a requirement to produce a police report “was in effect in Bulawayo or Zimbabwe generally”, was irrational or grounded on pure personal speculation; (c) whether the Tribunal acted in breach of constitutional justice and in breach of s. 46(6) of the 2015 Act by failing to give any or any adequate reasons for rejecting the reliability of the ‘Chronicle’ newspaper report which referenced another person who had been refused hospital treatment because they did not have a police report, or whether its finding in this regard was irrational or unreasonable; (d) whether the Tribunal breached constitutional justice and fair procedures in finding that the lack of medical evidence before the Tribunal undermined the applicant’s credibility and his claim to have been tortured, and placed a disproportionate and erroneous burden of proof on the applicant.

Held by Bolger J that the COI was accepted by the Tribunal and the applicant’s account was properly assessed in the context of it in accordance with the requirements identified by Hogan J in RA v Refugee Appeals Tribunal [2017] IECA 297. She held that the Chronicle article was considered and the Tribunal was entitled to consider it unreliable as a single report relating to an unrelated incident and not supported by any of the available COI available. She held that the Tribunal was entitled to have regard to the lack of medical evidence, other than a single psychologist appointment in Ireland, in assessing the account the applicant gave of having been subjected to torture over a period of four days.

Bolger J rejected the applicant’s application for certiorari as he had not satisfied her that legal flaws existed in the factors relied on by the Tribunal in concluding that the credibility of the applicant’s claim was undermined and that his appeal should, therefore, be refused. Her indicative view was that the respondents were entitled to costs against the applicant.

Application refused.

JUDGMENT of Ms Justice Bolger delivered on the 9th day of November, 2022.

Introduction

1 The applicant seeks an order of certiorari quashing the decision of 10 June 2020 of the Tribunal under s.46(3)(a) of the International Protection Act 2015 (‘the 2015 Act’) to affirm a recommendation that the applicant should not be given leave for a refugee declaration order and a subsidiary protection declaration. For the reasons set out below I am refusing this application.

Background

2 The applicant is a national of Zimbabwe who arrived in the State on 9 February 2019 and immediately applied for international protection. He claimed he had been overheard in a bar speaking in negative terms about the President after which he was taken away by some men unknown to him, detained and tortured over four days. He was accused of being a member of the Mthwakazi Republic Party (‘MRP’) which he initially denied but then falsely admitted to in order to leave. The men released him and ordered him to attend an MRP meeting, but he did not do so. He said he attempted to obtain treatment at hospital for his injuries but was refused because he did not have a police report. He received threatening phone calls and some days later his house was ransacked after which he fled Zimbabwe.

3 The applicant's application for international protection was refused and he appealed. On 10 June 2020 the Tribunal refused his appeal on the basis of adverse credibility findings. The Tribunal did not accept his evidence of torture and persecution.

Legal grounds

4 The applicant submits the following as the issues to be determined by the Court:

• a. Whether the Tribunal's finding at para. 4.30 of the decision, that it did not make sense that the applicant was accused of membership of the MRP when he had no previous connection to the party, was based on pure personal speculation and/or was irrational or unreasonable, or whether the Tribunal failed to take into account the heated political climate in Zimbabwe, as apparent from relevant country of origin information (“COI”).

• b. Whether the Tribunal' finding at para. 4.33, that the applicant's statement that he was unable to receive medical treatment without a police report was not credible because it was not supported by reliable COI, and its direction to itself to accept this claim only if COI documenting that a requirement to produce a police report “was in effect in Bulawayo or Zimbabwe generally”, was irrational or grounded on pure personal speculation.

• c. Whether the Tribunal acted in breach of constitutional justice and in breach of s. 46(6) of the 2015 Act by failing to give any or any adequate reasons for rejecting the reliability of the ‘Chronicle’ newspaper report which referenced another person who had been refused hospital treatment because they did not have a police report, or whether its finding in this regard was irrational or unreasonable.

• d. Whether the Tribunal breached constitutional justice and fair procedures in finding at para. 4.34 that the lack of medical evidence before the Tribunal undermined the applicant's credibility and his claim to have been tortured, and placed a disproportionate and erroneous burden of proof on the applicant.

The arguments made

5 The applicant only challenges some of the Tribunal's findings but says that each of the findings he challenges were material to the decision and that a single error or unlawful finding in a credibility assessment may be enough to invalidate a decision; VW v Refugee Appeals Tribunal [2017] IECA 296, [2018] 2 IRM 56.

6 The respondents argue that the applicant was afforded the opportunity to comment on the material, his responses were considered by the Tribunal, adverse inferences drawn by the Tribunal were based on the evidence before it and the probative weight to attach to documentary evidence is quintessentially a matter for the decisionmaker as per Birmingham J. (as he then was) in ME v Refugee Appeals Tribunal [2008] IEHC 192 (at para. 27).

7 I set out below each of the Tribunal's findings that are challenged by the applicant and the arguments made by both parties.

(i) That the Tribunal's finding on MRP membership did not make sense

8 The Tribunal found that it did not make sense that the applicant was accused of membership of the MRP when he had no previous connection to the party. The applicant condemns this finding as personal speculation based on the Tribunal member's own view and relies on the principles of credibility assessment set out by Cooke J. in IR v Minister for Justice [2009] IEHC 353, [2015] 4 IR 144 as approved by the Court of Appeal in RA v Refugee Appeals Tribunal [2017] IECA 297, in particular the fifth principle at para. 10 that:-

“A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding”.

9 The applicant submitted that the Tribunal had failed to take account of the heated political climate in Zimbabwe from relevant COI. He relies on the decision of Finlay Geoghegan J. in RA v Refugees Appeals Tribunal that the Tribunal is obliged to assess an applicant's story in the context of relevant COI.

10 The respondents submitted that the Tribunal had regard to all of the documents and all COI and accepted the applicant's claim that political violence occurs in Zimbabwe. The decision notes the applicant's replies to having been asked at his second s.13 interview why he did not mention the MRP at his first s.13 interview...