T.T. (Zimbabwe) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 31 October 2017
• Neutral Citation: [2017] IEHC 750
• Docket Number: [2016 No. 431 J.R.]
• Court: High Court
• Date: 31 October 2017

[2017] IEHC 750

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 431 J.R.]

BETWEEN

T.T. (ZIMBABWE)

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

Asylum, Immigration & Nationality - Fear of persecution - Investigation of documents - Rejection of credibility - Delay in seeking asylum - Art. 13 of European Convention on Human Rights

Facts: The applicant filed the present application for seeking judicial review of the order of the first named respondent/Refugee Appeals Tribunal that rejected the applicant's claim for asylum. The applicant contended that the first named respondent/Tribunal had failed to investigate the authenticity of documents presented on behalf of the applicant. The first named respondent contended that the documents presented were inconsistent with the account of events given by the applicant.

Mr. Justice Richard Humphreys dismissed the application. The Court held that there was no duty on the part of the first named respondent to investigate as the document was created by an internal entity within the country of origin and the duty to investigate could be utilised in cases where the document was created by an international agency like the UNHCR. The Court observed that even if those documents were genuine, they contradicted the applicant's evidence and undermined her credibility.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 31st day of October, 2017

1 The applicant is Zimbabwean and claims to be a supporter of the Movement for Democratic Change (MDC). She claims that she and family members have been persecuted by Zanu-PF. She travelled to Malawi in June, 2007 and came to Ireland in July, 2007. She applied for asylum on 9th December, 2013, some six and a half years later. In July, 2014 her claim was rejected by the Refugee Applications Commissioner. She appealed to the Refugee Appeals Tribunal, which held a hearing on 1st December, 2015 and rejected her claim by decision dated 3rd May, 2016. She obtained leave to challenge that decision from MacEochaidh J. on 21st November, 2016. The application is out of time but that aspect is not being challenged by the respondent. I have heard helpful submissions from Mr. Michael Conlon S.C. (with Mr. Garry O'Halloran B.L.) for the applicant and Mr. Tim O'Connor B.L. for the respondents.

2 Mr. Conlon submits that there is one point in the case, namely the failure by the tribunal to investigate the authenticity of documents presented on behalf of the applicant.

3 In this case the documentation in question was introduced with a view to supporting the claim that the applicant was a member of the MDC. There were two aspects to the rejection of credibility: firstly, aspects independent of the documentation and secondly, aspects related to the documentation.

The applicant's lack of credibility

4 In relation to the independent aspects it seems to me that the tribunal was entitled to reject the credibility of the applicant on the various grounds advanced, namely:

(a) her lack of knowledge of the party she claimed to be a member of;

(b) her lack of awareness of the party symbol;

(c) her inability to identify the party leaders;

(d) the fact that she produced a document complaining about a threat to her sister but did not mention any such sister in her questionnaire;

(e) the six and a half year delay in seeking asylum which the tribunal held was damaging to her credibility; and

(f) the inconsistencies and changes in the applicant's evidence to which the tribunal also drew attention.

5 I turn then to the issues relating to the documents themselves. The tribunal legitimately took the view that the documents produced were inconsistent, both as to time and as to place, with the applicant's own account of events in Zimbabwe. To that extent, it seems to me that even if the documents were accepted as genuine they undermined the applicant's credibility in and of themselves. There was an attempt to retrospectively create a fair procedures point with the suggestion that the conflicts between the documents and the applicant's evidence were not put. However, firstly, this complaint was not pleaded. If it had been pleaded it could have been replied to by the tribunal. Secondly, the complaint has no evidential basis. The only material indicating what happened at the hearing is a largely illegible hand-written note exhibited at exhibit G to the applicant's grounding affidavit. The applicant does not say who made the note but presumably it was the Refugee Legal Service. Mr. Conlon suggested he could get the note typed up but even if it was typed up, it does not purport to be verbatim and it does not get around the point that the fair procedures complaint was not pleaded and is simply not part of the case.

The applicant's shared duty to establish the facts

6 Given that it is established EU law (see N.M. (D.R.C.) v. Minister for Justice, Equality and Law Reform [2016] IECA 217) that there is a shared duty as between the applicant and the protection decision-maker, it seems to me there is a serious question as to why it should be acceptable for an applicant to adopt a stance of complete passivity in relation to investigating the validity of queried documents. This was an issue that was touched on by Kozinski C.J. in Angov v. Holder (Case No. 0774963, 9th Circuit, December 4, 2013) in which he commented as follows: ' The [immigration judge] found that Nikolay Angov presented forged documents. This is a serious matter that, if true, should not merely result in the immediate termination of Angov's asylum petition, but also in criminal prosecution for immigration fraud. But the [immigration decision makers weren't] fazed by discovery of the fraud; they went on to decide whether Angov's asylum claim could be sustained despite the forgeries. No other adjudicator in the United States would react with such equanimity to finding that a party had tried to bamboozle it. This points to an unfortunate reality that makes immigration cases so different from all other American adjudications: Fraud, forgery and fabrication are so common'and so difficult to prove'that they are routinely tolerated. The reason for this deplorable state of affairs is not difficult to figure out. The schizophrenic way we administer our immigration laws creates an environment where lying and forgery are difficult to disprove, richly rewarded if successful and rarely punished if unsuccessful. This toxic combination creates a moral hazard to which many asylum applicants fall prey.'

7 On the specific issue of corroborating documents, he referred to a document which had certain phone numbers on it apparently relating to a police station as well as official seals, and said ' Angov or one of his friends could have called the numbers and asked whether he'd reached the police station'and then submitted an affidavit to that effect. The same is true about the seals: Angov or his friends might have tried to obtain an official copy of the police seal from the Bulgarian government and introduced it into evidence. He did none of these things, perhaps because he knew that the subpoenas were forged'.

When does the tribunal have to investigate the authenticity of documents?

8 Singh v. Belgium (Application No. 33210/11, European Court of Human Rights, 2nd October, 2012) was a case where applicants arrived in Belgium from India without appropriate entry documents (paras. 6, 8) and were refused leave to land (para. 8). Simultaneously they lodged an application for asylum (para....