T.M. (Zimbabwe) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 17 December 2015
• Neutral Citation: [2015] IEHC 813
• Docket Number: [2014 No. 764 J.R.]
• Court: High Court
• Date: 17 December 2015

BETWEEN

T.M. (ZIMBABWE)

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL,

MINISTER FOR JUSTICE AND EQUALITY,

ATTORNEY GENERAL AND IRELAND

RESPONDENTS

[2015] IEHC 813

[2014 No. 764 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Appeal against the decision of the Refugee Appeals Tribunal – Judicial review – Certiorari – past persecution – Country of origin information

Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that in 2008, he suffered persecution at the hands of a political party for his imputed opinion, which forced him to flee from the country of origin. The applicant alleged that if he was to return to the country of origin, he would be harassed and beaten upto death by the police authorities for his imputed political opinion in the past. The first named respondent asserted that the applicant failed to establish well-founded fear of persecution as per the available country of origin information.

Mr. Justice Eagar granted an order of certiorari and quashed the decision of the first named respondent and directed that the applicant's appeal should be considered by a different member of the first named respondent. The Court held that the process, by which the first named respondent formed the decision, was flawed as the decision-maker failed to provide reasons for considering particular country of origin information. The Court found that the omission by the first named respondent to take note of the fact that the applicant became disassociated with any political activity in the country of origin after his alleged persecution was unreasonable.

JUDGMENT of Mr. Justice Eagar delivered on the 17th day of December, 2015

1 This is a judgment in a judicial review hearing where the applicant seeks an order of certiorari of the decision of the Refugee Appeals Tribunal (hereinafter referred to as ‘the Tribunal’), notified to the applicant not earlier than 10th November, 2014, leave having been given by Mac Eochaidh J. on 12th January, 2015.

Relief Sought

(i) An order of certiorari by way of an application for judicial review quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner.

(ii) An order remitting the appeal of the applicant for fresh determination by a separate member of the Tribunal.

(iii) An order of certiorari by way of application for judicial review quashing the decision of the respondent Minister refusing the applicant the declaration of refugee status.

(iv) An order providing for an extension of time.

2 The grounds upon which the relief are sought are as follows:-

(i) The Tribunal erred in law and, in fact, in finding that there is no objective basis for the applicant's fear of persecution by reason of his activities with the Movement for Democratic Change (MDC). Country reports provide clear objective support for the applicant's claim.

(ii) The Tribunal erred in law in failing to assess the applicant's claim in the light of the country reports supportive of the said claim and in having selective regard to the country reports placed before it.

(iii) The decision of the Tribunal is irrational in light of the country reports relied upon.

(iv) In making a finding that the country conditions had improved in Zimbabwe, the Tribunal erred in law in failing to consider how such perceived changes affected the applicant in the light of his particular circumstances and history.

(v) Insofar as it can be inferred that the Tribunal is making a finding with respect to the availability of internal flight operation, the Tribunal erred in law in failing to make any assessment in the course of its Regulation 7 of the EC (Eligibility for Protection) Regulations 2006 (hereinafter referred to as ‘the Regulations of 2006’), or the UNHCR Guidelines on Internal Protection: Internal Flight or Relocation Alternative.

(vi) The decision of the Minister is wholly predicated on the decisions of the Commissioner and the Tribunal. The latter decision is impugned in these proceedings.

3 The first issue that was raised was in relation to the applicant's application for an order providing for an extension of time. The statement of opposition at para. 1 stated that the application for judicial review was not instituted within the time limit prescribed by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended.

4 Counsel for the applicant, Michael Lynn, S.C., (with Gary O'Halloran, B.L.) sought the application for an extension of time and referred to paras. 11, 13 and 14 of the applicant's affidavit grounding the statement of grounds. In para. 11, he stated:-

‘I [the applicant] was notified by letter dated Thursday, 6th November, 2014, and received on or about Monday, 10th November, 2014, that the Tribunal rejected my appeal.’

At para. 13, he stated:-

‘I say that I immediately contacted my solicitor on receipt of the Tribunal decision with a view to challenging it by whatever means available to me. I am informed and believe that a brief was prepared for counsel. I am advised that a two week delay occurred due to the prior work commitments of counsel. Thereafter, it was noted that the notice of appeal and the subsequent country reports and medical reports submitted in support of my appeal were not on my file. I say these documents were sought from my previous legal representatives, the Refugee Legal Service. By letter dated 4th December, 2014, a copy of my complete file was forwarded to my present solicitors. I beg to refer to a copy of the letter upon which pinned together marked with the letter “I”, I have signed my name prior to the swearing hereon.’

At para. 14:-

‘By letter dated 5th November, 2014, I was notified that the Minister refused me a grant of refugee status and this refusal was based on the decisions of the Commissioner and Tribunal. I beg to refer to a copy of the letter upon which pinned together marked with the letter “J” I have signed my name prior to the swearing hereon.’

5 Counsel also referred to the document described as ‘UK Home Office Operational Guidance Note’ which was not with the papers received from the Refugee Legal Services. On 10th December, 2014, Messrs. Trayors & Co. Solicitors, the present solicitors for the applicant sought a copy of this document. Counsel argued that as this document was part of the key country of origin information documents relied upon by the first named respondent, it was essential that counsel obtained a copy of same.

6 The application for leave was entered into by this Court on 12th December, 2014 and an extension of time of two days was required on the basis that the documents, including the notice of motion, the statement of grounds and affidavit were lodged with the High Court on 12th December, 2014 and adjourned on that date to the next list before Mac Eochaidh J., on 12th January, 2015.

7 The decision of Mac Eochaidh J. states that:-

‘Upon motion of counsel on behalf of the applicant made ex parte onto the court on Monday, 15th December, 2014, for leave to apply by way of an application for judicial review and notes that the statement of grounds signed by the solicitor on behalf of the applicant and filed on 12th December, 2014 and the court, therefore, on that date adjourning the further consideration of this matter to Monday, 12th January, 2015.’

8 Counsel on behalf of the respondents, Mr. Conlan Smyth, S.C., (with Mark Finan, B.L.) stated that the grounds preferred for the delay at para. 13 of the ground affidavit were not adequate and amounted to hearsay and do not permit the court to even examine whether it is just inequitable for the court to exercise its jurisdiction to extend time. He pointed to the fact that the Act of 2000, was amended by substituting a period of time for an application for leave to apply for judicial review to be made within a period of 28 days commencing on the date on which the person was notified of the decision. Section 5(2) of the Act of 2000 states that unless the High Court considers that there is good and sufficient reasons for extending the period within which the application shall be made and such leave shall not be granted unless the High Court is satisfied that there is substantial grounds for contending that the decision, the determination, recommendation, refusal or order is invalid or ought to be quashed.

9 It is noted by this Court that no application was made to the Asylum List before Mac Eochaidh J. at any time between the service of the notice of motion and statement of grounds on affidavit and the hearing date. The asylum judges have made it clear that objections to extension of time should be made to the judge in charge of the Asylum List.

10 In view of the delay in this case of two days, and having regard to the contents of the decision of the first named respondent and the reasons offered by the applicant, this Court is satisfied that there is good and sufficient reason for extending the period within which the application shall be made. The Court is also satisfied that that there are substantial grounds for contending that the decision is invalid or ought to be quashed.

11 The applicant swore an affidavit for the purpose of verifying the facts relied upon the statement of grounds of 11th December, 2014; he states in the affidavit that he was born on 8th October, 1987, in Gwatemba, Insiza in Zimbabwe. He joined the Movement for Democratic Change (MDC) in 2007. He was badly beaten in Gwatemba as a result of his political activities during the election campaign in March 2008. He moved to Bulawayo and remained there until March 2013, during which time he abstained from political activity. He...