High Court of Ireland Decisions

Judgment Title: M. -v- MJELR

Neutral Citation: [2011] IEHC 133


High Court Record Number: 2010 780 JR

Date of Delivery: 03/22/2011

Court: High Court

JUDGMENT of Ms. Justice Irvine delivered the 22nd day of March, 2011

1. This is an application for leave to bring judicial review proceedings challenging a decision by the Minister to make a deportation order dated the 14th May, 2010, in respect of the applicant. Mr. Saul Woolfson B.L. appeared for the applicant and Ms. Siobhán Stack B.L. for the Minister.

Background
2. The applicant claims to be a Zimbabwean national and a member of the minority Ndebele ethnic group. He arrived in Ireland in January, 2002 and applied for asylum. His case focussed on his claim that he was an active member of the Movement for Democratic Change (MDC) and an incident which he claimed took place in the run up to elections in January, 2002 when he said his life was threatened

3. In a decision dated the 2nd August, 2002, the Refugee Applications Commissioner made a negative recommendation in respect of the applicant. The basis for this decision was that the applicant’s account of an event where he alleged his life was threatened was lacking in credibility. In any event, the Commissioner decided that even if the incident did take place it was more akin to an isolated incident of thuggery and would not amount to persecution for the purposes of refugee law. Moreover, a letter presented by the applicant in support of his asylum claim that purported to be from a representative of the MDC was found to be false (the applicant said this letter was given to him by a relative). It was also noted that the applicant had made a number of recent business trips to countries neighbouring Zimbabwe. Thus, it was thought that if he really was experiencing difficulties in Zimbabwe, he would more likely have relocated to one of these countries.

4. The Refugee Appeals Tribunal, in a decision of 19th December, 2002, affirmed the recommendation of the Commissioner, dismissing the applicant’s appeal. Once again, a number of credibility concerns were raised, including the forged letter purportedly from the MDC. The Tribunal Member made a number of other findings, including the following:-

(i) the applicant’s history of his experiences as a political activist were unconvincing;

(ii) the applicant seemed to lack political conviction;

(iii) there was a wide disparity between the evidence given by the applicant to the Tribunal and the information provided in his questionnaire and in his interview with the Refugee Applications Commissioner.

6. By letter dated the 9th March, 2006, the applicant’s solicitor made an application to be readmitted to the asylum process pursuant to s. 17(7) of the Refugee Act, 1996. This was refused, but the applicant then brought judicial review proceedings which were compromised and a fresh s. 17(7) application was made on the 22nd March, 2007. The basis of this application was stated to be a change of circumstances in Zimbabwe and the availability of new country information:-

“There is clear information from reputable sources confirming a heightened level in recent times of harassment, arrest, detention and denial of fundamental rights of any political opponents and/or persons not only who are perceived to be opposed to the ruling regime but also those who are not prepared to declare support for Zanu-PF.”

“Our client is opposed to and does not support the ruling Zanu-PF regime in Zimbabwe. He fears that regime. He instructs us that he will not declare support for this despotic and fascist regime and if refouled our client fears that he will be subject to persecution by virtue of having claimed asylum abroad and/or by virtue of having done so for political reasons. The mere fact of his having made an asylum claim is it is submitted sufficient for him to be considered to have a well founded fear of persecution.”

7. The Minister refused the s. 17(7) application on the 28th May, 2007. As regards the applicant’s stated fear of persecution on the basis of imputed political opinion, the Minister referred to COI submitted by the applicant that indicated the targeting by state authorities of members of the opposition, union leaders and civil society activists. It was observed, however, that the applicant to date had not submitted any credible or cogent evidence which could prove his connection to the opposition, or any group opposed to the regime in Zimbabwe. The Minister further reasoned that because the applicant had a passport valid until 2010, he could return to Zimbabwe voluntarily and in safety, and therefore he could not rely on what may happen to him if forcibly returned as a failed asylum seeker.

8. The applicant then made an application for subsidiary protection by letters dated the 20th June, 27th June, 2007, and 31st July, 2009. Again, he did not rely on membership of the MDC but claimed to be in fear of “serious harm” by reason of his actual or imputed political opinion and his actual or perceived opposition to the ruling regime, his status as a failed asylum seeker, his membership of the Ndebele tribe as well as gross human rights abuses in Zimbabwe generally. The applicant also claimed to be at risk because the Zanu-PF regime used food distribution as a political weapon and deprived those who were perceived as opponents of the regime of the basic necessities of life. Moreover, he claimed to be at risk of being deprived of his citizenship by virtue of Zimbabwe’s repressive citizenship laws.

9. The subsidiary protection application was refused by the Minister and notified by letter dated the 21st September, 2009. The Minister in reaching his decision adopted the Tribunal Member’s findings as to credibility and it was therefore concluded that the applicant had not been a political activist for the MDC. Another of the Minister’s findings was that the applicant’s tribe, the Ndebele, continued to encounter low-grade economic and political discrimination but that this did not reach a threshold so as to constitute a risk of “serious harm”. As regards the applicant’s claim to be at risk as a failed asylum seeker, the Minister referred to country reports that said there was no recent information that failed asylum seekers were experiencing difficulties and that large numbers of Zimbabweans holding asylum permits had been returning from South Africa.

10. The Minister also noted that he had been made aware of an incident that had occurred in Scotland in March, 2008 when the applicant, having arrived there from Northern Ireland, produced an Irish driver’s licence and stated that he was an Irish citizen visiting friends in the United Kingdom whilst giving a residence in Enniskillen, Northern Ireland. Thereafter, the Minister had become aware that the applicant was a failed asylum seeker in the United Kingdom from whence he was deported in 2001. The applicant had failed to disclose this information to the Irish asylum authorities.

The application for leave to remain
11. By letters dated the 12th and 14th October, 2009, the applicant’s solicitor submitted to the Minister representations and country reports in support of the applicant’s application for leave to remain, which was more or less identical to his application for subsidiary protection. The letter of the 14th is the key document in this regard. It stated that the applicant fears risk to his life and freedom and of serious assault if he were refouled to Zimbabwe for a number of reasons, which can be summarised as follows:

(i) His actual or imputed political opinion as someone who is opposed to Zanu-PF and unwilling or unable to demonstrate support for that political party;

(ii) His status as a failed asylum seeker;

(iii) His status as a member of the Ndebele ethnic group;

(iv) His being subjected to Zimbabwe’s repressive citizenship laws and being deprived of his citizenship (this is not an issue in the within proceedings); and

(v) An accumulation of the above.

12. The letter then addressed the issue of the applicant returning to Zimbabwe as a failed asylum seeker. It was stated that he would face a risk of threat to his life, freedom or serious assault because he is not a supporter of Zanu-PF and is unwilling to associate with them, publicly support them, carry a Zanu-PF card or vote for them. There was a risk by virtue of his status as a failed asylum seeker of Ndebele extraction who has remained abroad for a significant period (and is therefore liable to be deemed unpatriotic). Reference was then made to R.N. v. Secretary of State for the Home Department [2008] UKAIT 83, a recent country guidance case from the UK Asylum and Immigration Tribunal. The letter reproduced a number of passages from the Tribunal’s decision and the full decision was appended. The country guidance provided by the Tribunal in R.N. was to the effect that, subject to certain qualifications (of which more later):-

“Those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF.”

“Although a power sharing agreement has been signed between Mr Mugabe on behalf of Zanu-PF and Mr Tsvangirai on behalf of the MDC, the evidence presented does not demonstrate that the agreement as such has removed the real risk of serious harm we have identified for anyone now returned to Zimbabwe who is not able to demonstrate allegiance to or association with the Zimbabwean regime.”

14. Next, the letter addressed the issue of ethnicity. It was stated that the applicant as a member of the Ndebele tribe was at a heightened risk of being targeted. It was submitted that as the largest minority group in Zimbabwe, the Ndebele are viewed as the greatest threat to the status quo, and there was a long history of Ndebele being victims of violent attacks and suppression at the hands of the Mugabe/Zanu-PF regime. Reference was made, inter alia, to a Freedom House report of 2009 which stated:-

“The minority Ndebele ethnic group continues to suffer political and economic discrimination, and Ndebele areas are often targeted by security forces as opposition strongholds.”

15. The Minister was also sent an undated, handwritten letter from the applicant himself. In this letter, the applicant confirmed that he had been refused asylum in the UK: “They did not believe that my life was in danger despite being involved with the MDC.” He said that upon being deported to Zimbabwe he went into hiding until he could make arrangements to leave the country once again. Upon arriving in Dublin, he intentionally omitted to mention his experience in the UK because he feared that it would have a negative bearing on his asylum claim in Ireland. He also revealed that he was going to visit his mother when he was stopped by UK authorities in Scotland in 2008 and provided them with false information (this would seem to suggest that the mother had been living in the UK, which would be at odds with information previously furnished by the applicant when he said his mother was in Zimbabwe). A letter was also sent to the Minister from the applicant’s mother (who gave a London address) pleading for her son to be allowed to remain in Ireland. She said that life was not safe for him in Zimbabwe because he is known to be a member of the MDC. She also said that she hated Robert Mugabe “just as my son does.”

The contested decision
16. The application for leave to remain was unsuccessful and the Minister made the deportation order at issue in the within proceedings on the 14th May, 2010. A copy of the order was sent to the applicant and, as usual in cases such as this, was accompanied by an “Examination of File” memorandum that considered the applicant’s case. The memorandum was prepared by an Executive Officer in the Minister’s department and was approved by a Principal Officer as well as the Minister himself. It is the conclusions set out in this document that are the subject matter of the within proceedings.

17. Under the heading “Duration of residence in the State” the Minister noted that the applicant had on a previous occasion provided an address in Enniskillen, where the applicant now says he lived at between February and August, 2007. The Minister also noted the incident that had occurred in Scotland when the applicant had been stopped by British police.

18. The Minister went on to refer to various COI on the situation in Zimbabwe, in particular two Home Office reports dated July, 2009 and December, 2009. The content of these two reports overlapped to a large extent, and the findings concerning the return of failed asylum seekers were to the effect that the MDC leader Morgan Tsvangirai had called on exiles to return and that Zimbabwean asylum seekers in South Africa were returning home in increasing numbers. The July, 2009 report stated that “[n]o recent information was found that identified any particular problems for returning failed asylum seekers” (although this sentence was not repeated in the December report).

19. The first conclusion reached by the Minister was that:-

“Although some senior members of the MDC have been arrested, COI indicates that the majority have been granted bail or acquitted by the Zimbabwean courts. The same judicial process would be open to the applicant if he were to be arrested on the basis of political opinion.”

20. As regards the applicant’s ethnicity, the Minister stated:-

“The applicant claims that he will suffer persecution by virtue of his Ndebele ethnicity. However, the country of origin information listed above outlines the improved human rights situation for minorities in Zimbabwe since the MDC have entered the power-sharing government, such as increased participation in government for minorities and recognition of minority languages in schools … Therefore the Ndebele are now involved in government at a high level and their rights and the rights of minorities generally are now being respected by the authorities.”

The Application for Judicial Review
22. Essentially, the applicant’s case is that the Minister did not properly consider the information that was submitted to him and instead engaged in an exercise of selectively relying on certain country reports to reach conclusions which were at odds with any reasonable and objective assessment of the information available.

23. In reply, counsel for the respondent Ms. Stack concedes (at least for the purposes of this pre-leave hearing) that certain aspects of the Minister’s analysis were flawed, in particular his conclusion that there were judicial safeguards in place that the applicant could rely on in the event of being arrested. However, it is argued that nothing hinges on this because the applicant’s claim for leave to remain was of a general nature and no clear factual matrix had been made out linking general conditions in Zimbabwe with any threat that might be faced by the applicant specifically. It is further argued that the primary reason for the Minister’s decision was that he did not believe the applicant, whose credibility had been undermined at various stages of the asylum process. Accordingly, Ms. Stack says that any shortcomings in the Minister’s analysis as regards the situation in Zimbabwe are subsumed by his comments concerning the applicant’s credibility.

The Court’s Assessment
24. It would seem to me that the picture painted by the Minister of conditions in Zimbabwe might be described as optimistic, and a number of the conclusions drawn are at least arguably unreasonable when considered in isolation. However, I would agree with Ms. Stack’s submission that context is everything; an applicant seeking leave to remain cannot expect to rely on an abstract threat in a factual vacuum. It is doubtless the case that certain individuals and classes of individuals in Zimbabwe continue to face serious risks. However, that does not mean that any national of Zimbabwe can bombard the Minister with a vast body of general country information and expect to be granted permission to remain in the State.

25. Section 5 of the Refugee Act 1996 in effect requires the applicant to establish a threat to his life or freedom on account of his race, religion, nationality, membership of a particular social group or political opinion. In the instant case, much of the material presented to the Minister was of a very general nature, focusing on rights violations committed against MDC activists, farmers and human rights advocates. Neither the Commissioner nor the Tribunal had believed the applicant was an MDC activist, and the Minister was entitled to take this into account. After all, s. 5 does not require the Minister to engage in a de novo examination of the applicant’s asylum claim. He is also at the considerable disadvantage of not being able to hear direct evidence from the applicant or observe his demeanour. Thus, to the extent that the case being made to the Minister overlaps with the earlier asylum claim, the Minister may rely on the conclusions reached by the Commissioner and the Tribunal in relation to credibility. The judgment of Clarke J. in Kouaype v. Minister for Justice (Unreported, High Court, 9th November, 2005) is instructive in this regard:-

“If the Minister is considering whether s. 5 of the 1996 Act applies so as to debar an entitlement to deport he is, in substance, considering whether the person concerned is entitled to refugee status for the terms in which the prohibition under s. 5 are set out are the same as the terms upon which a person qualifies for refugee status. Given that statutory regime it would be surprising if the Minister were not entitled to place a heavy emphasis indeed on the fact that the person concerned had, as a result of going through the asylum process, every opportunity to make out a case for that status and thus had every opportunity to make out a case which in substance would mean that s. 5 prohibited their deportation. Having failed to establish that status in the refugee process it is difficult to see how, in the absence of special or changed circumstances, the Minister could be under any heavy obligation to review that aspect of the matter further.”

26. In considering an application for leave to remain and whether or not he should make a deportation order, the Minister must of course be mindful at all times of his s. 5 non-refoulement obligations. It should also be borne in mind that the legal test governing a s. 5 determination is not identical to the test that arises for consideration in an asylum claim, namely whether or not a person is a refugee pursuant to section 2. However, given the fact that an application for leave to remain – often referred to as an argumentum ad misericordiam – arises at the latter stages of the asylum process, the main focus of the Minister’s obligations in considering such an application naturally relates to any aspects of the applicant’s case that have not already been determined in his asylum claim.

27. Turning to the facts of the within proceedings, the Minister concluded that the applicant’s claim for leave to remain was the same as his claim that had proved unsuccessful before the Commissioner and the Tribunal. It would seem to me that there was a certain amount of overlap, insofar as the applicant relied on the risks facing political opponents of Zanu-PF in Zimbabwe. However, his application for leave to remain was distinct from his asylum claim in a number of respects. For instance, the applicant relied on his ethnicity as a standalone basis for which he could be at risk if returned to Zimbabwe. Moreover, he claimed to be at risk as a failed asylum seeker and tied this in with the fact that he was of Ndebele extraction and the fact that he was someone who had spent a significant time outside the country and therefore might be viewed with suspicion. Most significantly of all, he relied on the recent decision of the UK Asylum and Immigration Tribunal in the R.N. case.

28. The Minister reviewed certain country reports – including the Freedom House report of 2009 submitted by the applicant – and concluded that the situation for minorities was improving in Zimbabwe and that their rights were generally being respected by the authorities. This strikes me as an optimistic reading of the country information, which indicated a number of significant problems facing the Ndebele people. However, there was nothing in the country information to suggest that the applicant’s life or freedom would be threatened on the basis of his ethnicity alone. In this respect at least, there are no substantial grounds for saying the Minister’s conclusion concerning s. 5 was unreasonable or irrational.

29. As regards the applicant’s claim to be at risk as a failed asylum seeker, the Minister referred to extracts from two Home Office reports of July and December, 2009, both of which he had sourced on his own initiative. The extracts referred to there being no information that identified problems for returning failed asylum seekers, to the fact that the MDC leader had called upon exiles to return, and to reports of Zimbabwean asylum seekers returning from South Africa in increasing numbers. The applicant objects to this aspect of the Minister’s decision in the first instance because there is no explicit conclusion reached. I do not accept this complaint. Murray C.J. in Meadows said as follows:-

“An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken. That rationale should be patent from the terms of the decision or capable of being inferred from its terms and its context.”

30. Whether that conclusion can be said to be reasonable is a separate matter. Indeed this is the one aspect of the Minister’s decision that would cause me some concern. The letter of the 14th October, 2009, making the applicant’s case for leave to remain referred to the R.N. decision explicitly and at some length. The conclusions of the Asylum and Immigration Tribunal in that case included the following:-

“The evidence establishes clearly that those at risk on return to Zimbabwe on account of imputed political opinion are no longer restricted to those who are perceived to be members or supporters of the MDC but include anyone who is unable to demonstrate support for or loyalty to the regime or Zanu-PF.

[…]

The fact of having lived in the United Kingdom for a significant period of time and of having made an unsuccessful asylum claim are both matters capable of giving rise to an enhanced risk because, subject to what we have said at paragraph 242 to 246 above, such a person is in general reasonably likely to be assumed to be a supporter of the MDC and so, therefore, someone who is unlikely to vote for or support the ruling party, unless he is able to demonstrate the loyalty to Zanu-PF or other alignment with the regime that would negate such an assumption.”

“It remains the position, in our judgement, that a person returning to his home area from the United Kingdom as a failed asylum seeker will not generally be at risk on that account alone, although in some cases that may in fact be sufficient to give rise to a real risk. Each case will turn on its own facts and the particular circumstances of the individual are to be assessed as a whole.

[…]

For these reasons, a person not able to demonstrate loyalty to Zanu-PF or with the regime in some form or other will be at real risk having returned to Zimbabwe from the United Kingdom having made an unsuccessful asylum claim. That will be regardless of the mechanics of his return. Those with whom he would have to deal in his home area or other place of relocation would be concerned, once he had failed to demonstrate any links with Zanu-PF, not with the method by which he had been returned from the United Kingdom but simply with the fact that his having made an asylum claim here demonstrated him to be a disloyal person who had not supported the party in the elections and as a potential supporter of the MDC.”

“That does not mean that a bare assertion of Zimbabwean nationality and the claimed inability to demonstrate ZANU-PF membership or loyalty to the regime will be sufficient to establish a right to be recognised as a refugee.

[…]

So, this will be a question of fact to be resolved in each case. This may come down to a simple assessment of credibility. But immigration judges are well accustomed to making such judgements. An appellant who has been found not to be a witness of truth in respect of the factual basis of his claim will not be assumed to be truthful about his inability to demonstrate loyalty to the regime simply because he asserts that. The burden remains on the appellant throughout to establish the facts upon which he seeks to rely.”

31. By comparison, the two Home Office reports relied on by the Minister in the instant case address the treatment of failed asylum seekers only very briefly. The analysis runs to just four paragraphs and the focus is on the position of Zimbabwean asylum seekers returning from South Africa. As the Tribunal in R.N. observes, the position of asylum seekers returning from the UK is particular in a number of respects and it would be reasonable to assume that returnees from Ireland are not viewed particularly differently from those from the UK.

32. This is an application for leave to which s. 5 of the Illegal Immigrants (Trafficking) Act 2000 applies. Accordingly, the applicant is required to establish substantial grounds for contending that the Minister’s decision is invalid or ought to be quashed. In judicial review it is not the role of this Court to say what conclusion the Minister should have reached as to the situation in Zimbabwe and whether the applicant would have been at risk if returned there. However, the Court may set aside the decision of the Minister in certain situations, including where it has been reached in breach of fair procedures or where it is manifestly unreasonable.

33. As this is a decision on leave only, it is unnecessary and indeed inappropriate to consider the matter in great depth. For present purposes I would merely register my concern at the Minister’s analysis concerning the threats facing returning asylum seekers, and in particular his reliance on the Home Office reports and the absence of any reference to the R.N. case. R.N. was a recently decided country guidance case, presided over by three senior immigration judges in our neighbouring jurisdiction. To date, R.N. remains valid country guidance in the UK and was applied as recently as November, 2010 by the English Court of Appeal in R.T. (Zimbabwe) v. Secretary of State for the Home Department [2010] EWCA Civ 1285. The R.N. country guidance was, by any objective standpoint, more detailed and of greater relevance to the applicant’s case than the Home Office extracts relied on.

34. Ms. Stack, for the Minister, argues that the applicant failed to provide any specific factual matrix relating to his own circumstances and instead sought to rely on threats of a general nature. She also points to the numerous aspects in which the applicant has been found to lack credibility. I would accept this contention, but only to a point. Certainly, much of the material presented to the Minister was of a general nature and no doubt this did not make his job any easier. However, it has never been disputed that the applicant is from Zimbabwe, and it cannot be disputed that he is a failed asylum seeker, or that he has spent a significant amount of time outside his home country. Moreover, the applicant has consistently claimed to be of Ndebele extraction from Bulawayo, an opposition stronghold, and this has never been called into question at any point during his asylum history (indeed the Refugee Applications Commissioner noted that he had a Bulawayo airport stamp in his passport).

35. Ms. Stack argues that it was open to the Minister – consistent with R.N. – to adopt the position that he simply does not believe the applicant when he says he would be unwilling to profess loyalty to Zanu-PF. This point is a reasonable one but it does not arise for consideration because that was not the position taken by the Minister. Rather, his position – such as it can be inferred – was that there was no risk to returning asylum seekers.

36. In conclusion, I am satisfied that the applicant has made out substantial grounds on this point and I would propose to grant leave to apply for an order of certiorari on the following sole ground:-

The conclusions reached by the respondent with respect to risk to the applicant if returned to Zimbabwe as a failed asylum seeker, particularly as a member of Ndebele tribe and as a person who has spent a significant amount of time outside the country, are unreasonable and are not supported by the materials that were placed before the respondent by the applicant’s solicitor.