Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> R.C. & anor (Zimbabwe) -v- Minister for Justice Equality & Law Reform & anor [2014] IEHC 609 (11 December 2014)
URL: http://www.bailii.org/ie/cases/IEHC/2014/H609.html
Cite as: [2014] IEHC 609
[New search] [Help]
Judgment
___________________________________________________________________________ | ||||||||||||||||||
Neutral Citation: [2014] IEHC 609 THE HIGH COURT JUDICIAL REVIEW [2010 No. 505 J.R.] and [2010 No. 506 J.R.] BETWEEN/ R.C. AND G.G.M. [ZIMBABWE] APPLICANTS AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL RESPONDENTS JUDGMENT of Mr. Justice Barr delivered on the 11th day of December, 2014 1. The applicants in this “telescoped” judicial review application are seeking certiorari of the decisions of the Refugee Appeals Tribunal (“the RAT”), dated 23rd March, 2010 (erroneously dated 23rd March, 2009), in respect of each of them, affirming recommendation of the Office of the Refugee Applications Commissioner (“ORAC”) that they be refused refugee status. Background 3. The applicants argued that they would be greatly prejudiced by the absence of an oral appeal. They said that the Commissioner based his decisions “uniquely on credibility grounds and failed to assess the kernel of their claim” which was that the husband is the brother of a former Zimbabwean opposition politician, T.M., who was forced to flee persecution in Zimbabwe and was granted refugee status in the United Kingdom. The decision of Clark J. in R.C. and G.G.M. [Zimbabwe] v. Refugee Applications Commissioner & Anor [2010] IEHC 490provides a full account of the facts of the applicants’ claim, and ORAC’s s. 13 report. I therefore provide only a brief overview here. 4. The applicants claimed to have been subjected to serious persecution in Zimbabwe between 2002 and 2007. They said they were targeted by Zanu-PF youths because of their close blood relationship with members of the MDC opposition party. Both husband and wife provided detailed accounts of the persecution which they claimed to have experienced during this five-year period. They said that they had to relocate in Zimbabwe as a result of the persecution but that their farmhouse was burnt down by Zanu-PF youths in August, 2007. It was after this that they claimed to have fled Zimbabwe and travelled via South Africa and Germany to Ireland, where they arrived in September 2007. 5. The applicants submitted various documents in support of their claim, including a series of documents relating to T.M. Clark J. noted at para. 5 of her judgment in respect of the applicants’ challenge to the decisions of ORAC:-
7. It was submitted on behalf of the applicants that the respondent breached fair procedures by failing to put to the husband his wife’s admissions that she had told lies. It was further submitted that, notwithstanding the blatant untruth of the narrative given by the applicants regarding past persecution, if the respondent accepted on the basis of the personal documents submitted that the applicants were indeed members of the opposition family, the respondent ought to have accepted that they had demonstrated a well-founded fear of persecution for a Convention reason. 8. Clark J. rejected the husband’s submission that ORAC’s failure to put the wife’s admissions to him constituted a breach of his right to fair procedures. The learned judge held that the husband was given every opportunity to explain why he had lied and as his interview was conducted before that of his wife, it was not possible to put to him the admissions she subsequently made. The applicants failed to establish any inadequacy in the form of the appeal available to them, and no averments were made outlining any injustice or prejudice occasioned to them by the absence of an oral hearing on appeal. Furthermore, the applicants ignored the fact that they had a duty, when engaging in the asylum system, to cooperate by presenting their account in a truthful manner. Their gross misconduct in abusing the integrity of the asylum process would entitle the court to refuse certiorari. Furthermore, Clark J. held that there was no merit to the application for leave. The reliefs sought were thus refused. The Present Proceedings Extension of time
12. In reply, the applicants submitted that the first mention of the time point by the respondents was in their intended statement of opposition and in their written submissions in respect of Ms. R.C. The applicants stated that the matter had not been raised hitherto, despite there having been ample opportunity for this to have been done, and it was now unconscionable to permit these proceedings to fail on the time point. In support of this submission, the applicants relied on the decision of Mac Eochaidh J in K.B. v. The Minister for Justice [2013] IEHC 169, where the learned judge held, at para. 19 of this judgment:-
14. The court is satisfied that, in light of Mac Eochaidh J.’s dictum in K.B., the obligation on lawyers to act expeditiously works both ways. Therefore, if the respondents wished to raise a time point, they were obliged not to delay in doing so. In this case, the proceedings were instituted on 23rd April 2010 - 4 years ago - but the respondents failed to raise the time issue until the statement of opposition was furnished to the applicants in the days before the hearing. This is exactly the sort of conduct deprecated by Mac Eochaidh J in K.B. 15. In the circumstances, the court is satisfied that there is good and sufficient reason to grant the small extension of time required, particularly where there would be no prejudice to the respondents in so doing. Accordingly, I will extend the time up to and including 23rd April, 2010, which is the date upon which these proceedings were commenced. Section 17(7) application to be readmitted to asylum system
“(7A) The consent of the Minister referred to in subsection (7)— (a) may only be given following a preliminary examination as to whether new elements or findings relating to the examination of whether the person qualifies as a refugee have arisen or been presented by the person, and (b) shall be given if, following the preliminary examination referred to in paragraph (a), new elements or findings arise or are presented by the applicant which significantly add to the likelihood of the applicant qualifying as a refugee.” 18. The respondent argued that, effectively, two parallel remedies were being exercised here. Section 17(7) was the first remedy availed of by the applicants in this case and, having availed of the s. 17(7) remedy, the applicants failed to give any explanation for the about-turn. The respondents submitted that the s. 17(7) remedy should have been allowed to proceed and, in the event of a negative decision, the applicant could have challenged that. The respondent submitted that this case this is not, therefore, a matter that should trouble the court given the applicants’ choice to proceed under s. 17(7). 19. In reply, the applicants submitted that in order to succeed in a s. 17(7) application, there had to be “new elements” to the claim; but that the submissions of 24th March, 2010, contain no “new elements” as such. 20. Section 17(7) requires “new elements or findings... which significantly add to the likelihood of the applicant qualifying as a refugee...” to have arisen, or to have been presented, in order for the Minister to allow an applicant to be readmitted to the asylum system and to apply, once again, to be declared a refugee. The submissions of 24th March, 2010, may or may not contain “new elements” as required by s. 17(7) of the Refugee Act 1996, as amended. That is an argument for another day. However, the court is satisfied that the existence of an application under s. 17(7) does not prevent the applicants from continuing with the within proceedings where they challenge the decision of the RAT dated 23rd March, 2010. 21. I now turn to consider the grounds advanced by the applicants for challenging the decisions of the RAT in respect of each of them. Failure by the RAT to consider the submissions of 24th March, 2010
? The apparent failure of the Tribunal to consider the submissions made by the applicant was in breach of fair procedures. 24. The chronology relating to the submissions is as follows. On 8th March, 2010, solicitors for the applicants wrote to ORAC stating that they were taking instructions and would “furnish further submissions in early course.” They asked that ORAC notify them “two weeks before you make a decision in this regard.” On 11th March, 2010, ORAC wrote to the applicant’s solicitors, stating: “please submit all documents on which you intend to rely immediately.” It was not until 24th March, 2010, however, that the applicant’s solicitors sent in the submissions. Unfortunately for the applicant, the Tribunal member had already made and signed the RAT decision the previous day, 23rd March, 2010. The submissions, therefore, were too late. The applicant was notified of the RAT’s decision to affirm ORAC’s recommendation that she not be declared a refugee by letter dated 29th March, 2010. 25. The respondent pointed out that pursuant to the Refugee Act 1996 (Appeals) Regulations 2003(S.I. 424 of 2003), all grounds of appeal must accompany the notice of appeal. Section 8(1) provides that: “An appeal shall be in the form specified in Part 1 of Schedule 1 or a form to the like effect.” The specified form, in s. 3, headed “Grounds of Appeal” states:-
27. The respondent further submitted that the RAT has a statutory duty to act expeditiously, as set out in s. 16(18) of the Refugee Act 1996, as amended, which provides:
(ii) That they did not provide a full and true explanation about their travel to the State. 29. The respondent emphasised that in its letter of 11th March, 2010, the Office of the Refugee Appeals Tribunal specifically asked the applicants’ solicitors to “submit all documents on which you intend to rely immediately.” Despite this request, the applicants did not submit representations until 24th March, 2010 - thirteen days later, and one day subsequent to the RAT having made its decision. Furthermore, the respondent submitted that the applicants’ submissions added nothing new. 30. I am satisfied that responsibility for the RAT’s failure to consider the applicants’ submissions of 24th March, 2010, lies with the applicants. They were warned on 11th March, 2010, that they needed to put in their submissions “immediately”, but failed to do so for a further thirteen days. The RAT, which was under a statutory obligation pursuant to s. 16(18) of the Refugee Act 1996, as amended, to act expeditiously, cannot be held responsible for this delay on the part of the applicants. Accordingly, grounds C and K must be rejected. Failure to consider or decide upon applicants’ s. 16(6) application
33. At the core of the applicants’ case that they should be granted refugee status, was their claim that the husband’s siblings, including, in particular, T.M., a Zimbabwean opposition politician, were granted asylum in the UK and in other countries, on account of persecution at the hands of the Mugabe regime. The applicants claim that they face a similar risk of persecution and serious harm if repatriated because of these political and family connections. 34. The applicants submitted documentation to ORAC purporting to concern the asylum applications of the husband’s siblings in other states. In this regard, counsel for the applicants drew the court’s attention to the husband’s s. 13(1) report dated 15th May, 2008, where the documents that were submitted are listed, as follows:
? Documentation regarding an asylum application from the husband’s brother in Canada; ? Documentation regarding asylum application from brother Brian in the USA; ? Documentation regarding asylum application from sister Dadirai in the U.K. 36. The applicants submitted that, quite apart from the lies told about their experience in Zimbabwe from 2002 to 2007, when they were in fact in the UK, the above listed documents showed that the applicants were related to persons who had been granted refugee status elsewhere. The applicants submitted these documents were accurate and, if authenticated by ORAC, would go a long way towards indicating that the applicants were entitled to refugee status because of these family connections. Letter of 24th February 2010 from applicants’ solicitors making s. 16(6) request
Accordingly, prior to our preparing further grounds of appeal, we would be obliged if you would confirm whether the Tribunal member would be willing to remit the matter under Section 16(6) of the Refugee Act to the Refuge Commissioners to carry out the aforesaid enquiries...”
40. The applicant then referred to the duty to cooperate, and the duty to assess the applicants’ claim, as laid down by Council Directive 2004/83/EC of 29th April, 2004, on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”). This directive was transposed into Irish law by the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) (“the Protection Regulations”). The applicant opened Article 4 of the Qualification Directive, the salient parts of which are as follows:
Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application. The elements referred to in paragraph 1 consist of the applicant's statements and all documentation at the applicants’ disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.” 42. The applicants submitted that the Court of Justice (“the CJEU”) has interpreted Article 4 in its decision in MM v. Minister for Justice (Case C-277/11). That case concerned a preliminary reference from the High Court (Hogan J.) about the duty to cooperate under Article 4. In the course of its judgment, the CJEU provided helpful guidance as to the duties imposed on member states by Article 4. At paras. 65-66 of its decision the CJEU held:
66. This requirement that the Member State cooperate therefore means, in practical terms, that if, for any reason whatsoever, the elements provided by an applicant for international protection are not complete, up to date or relevant, it is necessary for the Member State concerned to cooperate actively with the applicant, at that stage of the procedure, so that all the elements needed to substantiate the application may be assembled. A Member State may also be better placed than an applicant to gain access to certain types of documents. 44. In their letter of 2nd March, 2010, in reply to the applicants’ letter of 24th February, 2010, the Office of the Refugee Appeals Tribunal stated:-
45. The applicants submitted that it was not permissible that this documentation showing family relationships to others who have been granted refugee status be met by silence in the decision. Counsel for the applicants stated that this documentation represented the one chance the applicants had of establishing sufficient credibility to secure refugee status. He said that, at the very least, the applicants were entitled to a rejection of the s. 16(6) request before the decision was made. 46. The applicants submitted that instead there was a complete disregard of the fundamental claim regarding family relationships; a disregard of the letter of 24th February, 2010; a disregard of the applicants’ right to be heard; and the decision maker disregarded his duty to cooperate imposed by Article 4 of the Qualification Directive. The applicants reiterated their argument that the family connections shown by the documents were vitally important to their claim in light of the brutal nature of the Zimbabwean regime, and said there was a clear duty on ORAC to investigate and to cooperate. Counsel for the applicants added that the applicants’ lies have little to do with the underlying question: are these people refugees? The documents showing family connections to other refugees were vital in this regard. 47. Finally, the applicants submitted that if the court was satisfied that the RAT’s decision was in breach of the minimum standards mandated by EU law, i.e. as set out in Article 4 of the Qualification Directive, and interpreted at paras. 65 and 66 of the judgment of the CJEU in MM, then the decision must be quashed. In this regard, counsel made reference to the judgment of Hogan J. in MM v. Minister for Justice & Ors [2013] IEHC 9, where the learned judge quashed the Tribunal’s decision on the grounds that it breached the applicant’s right to be heard. 48. In reply, the respondents said that the duty to cooperate was a two way process and, in that regard, the applicants were required to tell the truth in their applications. The respondent referred the court to the “Application for Refugee Status Questionnaire”, where it is stated: “Providing false or misleading information at any stage may affect your credibility and therefore disadvantage your claim.” It is subsequently stated: “It is important that you provide full answers to these questions. BE COMPLETELY TRUTHFUL IN THE INFORMATION YOU PROVIDE. Providing false or misleading information at ANY stage may affect your credibility and disadvantage your claim. [Emphasis in original]. 49. Despite these explicit warnings, however, the applicants spun a web of lies in their respective questionnaires and in their respective s. 11 interviews, with a view to deceiving the Irish asylum authorities. As Clark J. observed at paras. 24-28 of her judgment on the applicants’ challenge to the ORAC decisions:
"11B—The Commissioner or the Tribunal, as the case may be, in assessing the credibility of an applicant for the purposes of the investigation of his or her application or the determination of an appeal in respect of his or her application, shall have regard to the following: […]
"If a person, for the purposes of or in relation to an application under section 8, gives or makes to the Commissioner, the Tribunal, an authorised officer or an immigration officer any statement or information which is to his or her knowledge false or misleading in any material particular, that person shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,500 or to imprisonment for a term not exceeding 12 months or to both." 26. Applicants are made aware of their obligation to tell the truth at all stages of their asylum process. That obligation arises from the Convention Relating to the Status of Refugees 1951 where at Article 5 it is stated:- "Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order." 27. Article 11 of Council Directive 2005/85/EC ("the Asylum Procedures Directive") provides:- "1. Member States may impose upon applicants for asylum obligations to cooperate with the competent authorities insofar as these obligations are necessary for the processing of the application." 28. In this case the behaviour of the applicants in knowingly providing the Commissioner with false and misleading information has all the appearance of criminal behaviour. Their gross misconduct in abusing the integrity of the asylum process would entitle the Court to refuse certiorari. It is deeply offensive to the justice system that applicants who have exploited the refugee system by their conspiracy to deceive should now come to this Court and complain that the system was unfair to them in that the husband was not afforded a second opportunity to admit his lies.”
53. The respondent added that the applicants were informed in May 2008, in the s. 13 report, that ORAC could not authenticate the documentation. Despite this, nothing seems to have been done in this regard between May 2008 and February 2010; no documentation appears to have been obtained in relation to any of the husband’s siblings by either applicant. The respondent concluded that there was no basis for the s. 16(6) request in the letter of 24th February, 2010, and there was no reason for saying that the Commissioner should carry out further inquiries. The respondent further submitted that the husband, and not ORAC, was best placed to establish his relationship with his siblings. 54. The respondent argued that the s. 16(6) request was a collateral attack on the s. 13 report of May 2008, but that the couple had already challenged the ORAC decision, and Clark J. had forcefully rejected this application. 55. The respondent submitted that in these proceedings the court is being asked to find that the RAT is obliged to remit the matter to ORAC; and yet, the relief being sought here is not an order of mandamus. The applicants are not saying this is an unlawful omission; they are accepting that the RAT was entitled not to do what was requested in the letter 24th February, 2010. Instead, the applicants are seeking certiorari of the RAT decision - this point, the respondent suggested, is crucial in understanding that the applicants accept that there was no legal obligation on the RAT to remit the matter under s. 16(6). 56. The applicants took issue the respondent’s claim that ORAC had accepted that they had relatives in the UK. The applicants pointed out that this submission was based on the way question 39 in the wife’s second s. 11 interview was phrased, but that the s. 13 report contained no indication whatever that ORAC accepted that the applicant had relations who had been granted asylum in the UK or elsewhere. 57. The applicants also took issue with the respondent’s submission that ORAC’s statement that it was unable to authenticate the documentation meant that it had investigated the documents and did not come up with any results. Counsel for the applicant said that this cannot be the case, because no reason is given as to why it was not possible to authenticate the documents. Was it, counsel asked, because ORAC had written to the UK but received no reply? If so, this should have been stated in the decision. 58. The applicants submitted that the RAT can, under s. 16(6), remit the matter to ORAC and require the Commissioner to conduct further inquiries and seek further information. Counsel for the applicants said that if the applicants themselves had obtained further documentation with a view to proving their relationship to persons who have been granted asylum elsewhere, ORAC may well have said that it was unable to authenticate these documents also. Therefore, it was reasonable to request ORAC to authenticate the documentation submitted. The applicant submitted that if ORAC had made inquiries, the UK authorities would have replied either to effect that they had never heard of these people, or that these people were granted refugee status on such and such a date. The applicants reiterated that Article 4 sets out the minimum standards mandated by EU law and that the RAT failed to comply with it in this case. 59. The applicants’ submissions regarding the s. 16(6) request are twofold. First, the applicants submitted that the RAT ought to have remitted the documents to ORAC for further inquires to be carried out with a view to their being authenticated. Second, the applicants submitted that the s. 16(6) request was greeted with silence in the RAT decision and that this constitutes a breach the applicants’ right to fair procedures. 60. In relation to the first complaint, it will be noted that the language used in s. 16(6) is not mandatory. It is clear that the RAT may, in its discretion, choose to remit a matter but it is not obliged to do so. Given that ORAC had already found it was unable to authenticate the documentation, sending the documents back for a further attempt at authentication would, arguably, have been futile. 61. Furthermore, as is clear from the language of Article 4 and from the judgment of Clark J., that the duty to cooperate is a two-way process. Article 4 clearly states:-
64. In light of the applicants’ mendacity, it is difficult to see why the RAT should have elected to exercise its discretion under s. 16(6) and troubled ORAC with carrying out further inquiries on their behalf. However, this is to invite speculation, as we do not know the reason why the RAT did not make further enquiries as envisaged by s. 16(6) of the 1996 Act. 65. The applicants’ second complaint was that the s. 16(6) request was greeted with silence in the RAT decision, in breach of their right to fair procedures. The RAT makes no reference whatsoever to the applicants’ solicitors’ letter of 24th February, 2010, in which the applicants make their s. 16(6) request that the documentation be remitted to ORAC for further investigation. The Office of the Refugee Appeals Tribunal’s letter of 2nd March, 2010, stated:-
94. Unless that is so then the constitutional right of access to the courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective.” 68. It was an important part of the applicants’ case that the husband’s siblings had been accepted as refugees deserving of protection in other countries. The applicants submitted some documentation to support this assertion. They asked the Tribunal to remit the matter to the RAT for further inquiries. In the circumstances, the RAT had to come to a decision on this request. The Tribunal was also under a duty to communicate both its decision on the s. 16(6) request, and the rationale behind that decision. It was not sufficient merely to ignore the request and to fail to mention it at all in the Tribunal’s decision. The decision of the RAT will have to be quashed on that account. Deficient assessment of the applicants’ claim by the RAT
B. In particular, without prejudice to the generality of the foregoing, Paragraph 5 of the said Regulations has not been adhered to. C. No proper objective or subjective analysis of the Applicant’s claim has been undertaken. D. The RAT failed to weigh appropriately the details given by the Applicant and failed to assess the legal requirements as a matter of law to a well founded fear of persecution. H. No proper regard has been had to the matters set out in documentation furnished with the Applicant’s Notice of Appeal furnished herein and the Decision is invalid. I. No proper objective or subjective analysis of the Applicant’s claim has been undertaken. J. The RAT failed to weigh appropriately the details given by the Applicant and failed to assess the legal requirements as a matter of law to a well founded fear of persecution. 71. Paragraphs 5(1)(a), (b), and (c) of the Protection Regulations provide:
5. (1) The following matters shall be taken into account by a protection decision-maker for the purposes of making a protection decision: (a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application for protection, including laws and regulations of the country of origin and the manner in which they are applied; (b) the relevant statements and documentation presented by the protection applicant including information on whether he or she has been or may be subject to persecution or serious harm; (c) the individual position and personal circumstances of the protection applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm.
(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied; (b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm; 74. In reply, the respondent pointed out that the RAT decision had concluded that “the Applicant has provided manifestly false evidence in support of her application as the Applicant claimed that she had been in Zimbabwe until 2007.” The respondent submitted that this is clearly an Imafu-type finding which, by definition, absolves the decision maker from having to consider country of origin information or any alleged future risk of persecution given that the core claim is wholly disbelieved. 75. The applicants argue that the RAT fell below the minimum standard required by Article 4(3)(b) of the Directive in its failure to consider the applicants’ claim that their relatives had been granted asylum in the UK and elsewhere, as a result of persecution suffered in Zimbabwe; and that the applicants, because of their relationship to these people, and in particular their relationship to the husband’s brother, opposition MP T.M. (who fled Zimbabwe and was granted asylum in the UK), were at a similar risk of persecution at the hands of the Mugabe regime if returned. 76. In order to decide whether the RAT complied with its obligations under Article 4(3)(b), it is necessary to consider the Tribunal’s decisions in respect of each applicant in some detail. In this regard, it is important to recall that, as a result of ORAC’s s. 13(6) finding, this was a papers only appeal. The RAT’s decision in respect of Mr. G.M.
ii. That, having regard to s. 11B(b) of the Refugee Act 1996, as amended, the applicant did not provide a reasonable explanation to substantiate his claim that this is the first safe country he has arrived in since departing his country of origin; iii. That, having regard to s. 11B(c) of the Refugee Act 1996, as amended, the applicant failed to provide a full and true explanation of how he travelled to and arrived in the State; iv. That he travelled to a number of countries and that, in light of Clark J’s decision in Alavi v. The Tribunal, the deliberate choice of state is generally indicative of economic migration rather than genuine flight from persecution; v. That the applicant gave contradictory answers to questioning in relation to the Home Office report - that he denied having been in the UK, despite the fact that the Home Office report showed that he was in the UK from 2002 to 2007. The RAT’s decision in respect of Ms. R.C.
ii. That the applicant failed to provide a full and true explanation of how she has travelled to and arrived in the State; iii. That she travelled to a number of countries and that, in light of Clark J’s decision in Alavi v. The Tribunal, the deliberate choice of state is generally indicative of economic migration rather than genuine flight from persecution; iv. That the applicant gave contradictory answers in relation to the Home Office report. The Tribunal member referred to s. 11(B)(f) of the Refugee Act 1996 (as amended) and found that the applicant “provided manifestly false evidence in support of her application”; v. That despite contending she is at risk, the applicant returned to Zimbabwe in 2005 for three weeks and did not encounter any problems; the Tribunal member found that this was not indicative of any risk of harm to the applicant if repatriated. Was the RAT obliged, pursuant to Article 4(3)(b) of the Qualification Directive, to assess the core of the applicants’ claim and the supporting documentation, despite the negative credibility findings? 81. I am of opinion that while the Tribunal did not accept the narrative as told by the applicants that they had suffered persecution in Zimbabwe due to their relationship with T.M. in the period from 2002 to 2007, it was still obliged to assess the core claim made by the applicants that they would suffer persecution if returned to Zimbabwe due to their relationship to T.M. and their perceived support for the MDC. 82. To this end, the Tribunal was obliged to assess whether the applicants were related to T.M. and, if so, how they might be perceived in Zimbabwe and whether on account of such perception they might face persecution. The Tribunal did not carry out this inquiry, which it ought to have done. To this extent, the Tribunal was obliged to carry out a forward-looking test. It did so to some extent in the wife’s case by holding that her safe return to Zimbabwe for three weeks in 2005 was not indicative of a fear of persecution and on that basis she could safely return to that country. However, such analysis did not constitute a proper forward-looking test in the wife’s case. No such test was carried out in the husband’s case. On this account, the decision of the RAT will have to be quashed. Conclusion |