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 >> PRT -v- The Minister for Justice, Equality & Law Reform & ors [2015] IEHC 447 (10 July 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H447.html
Cite as: [2015] IEHC 447
[New search] [Help]
Judgment
| ||||||||||||||||
Neutral Citation [2015] IEHC 447 THE HIGH COURT JUDICIAL REVIEW [2010 345 J.R.] BETWEEN P. R.T. APPLICANT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Ms. Justice Faherty delivered on the 10th day of July 2015 1. This is a telescoped hearing wherein the applicant seeks an order of certiorari of the decision of the second named respondent affirming the recommendation of the Refugee Applications Commissioner not to declare her a refugee. Background
4. Following this second attack and rape, she and her father went to the police but failed to obtain any assistance. 5. After they returned home from the police station, the gang of men came again to their home. The applicant described this visit in the following terms:-
7. The applicant travelled first to Harare where she hoped to find a friend of her father’s. Unable to locate her father’s friend she found a place to stay before travelling to Murambinda in an effort to locate her mother. This was in the days of Zimbabwe Prime Minister Morgan Tsvangirai’s wife’s burial and according to the applicant, “the Zanu PF were burning houses for people because they had turned out for the burial”. In her s.11 interview and in the course of the Tribunal hearing, the applicant stated that she returned to her father in Cheguto in March 2009 and claimed that the men had again harassed her. Having then returned to Harare, the applicant was advised to go to South Africa. She travelled by bus to the border region and from there by truck to South Africa. She arrived in South Africa between March and April 2009. 8. She stayed in South Africa for approximately two weeks until in or about mid-April 2009 during which time she experienced harassment from the South African police and anti-Zimbabwean sentiment from native South Africans. She was able to procure a false South African passport for 300 Rand. In April 2009, she made contact with an agent who booked flights for her from South Africa to Ireland via Jordan. She paid the agent US$500 for the tickets and in or around April 2009 she flew to Jordan. When in Jordan she fell ill and was unable to make her connecting flight to Ireland. When she recovered she contacted the agent back in South Africa, who booked her on a flight to Ireland via Frankfurt. She left Jordan on the 6th May 2009 arriving in Ireland on the 7th May via Frankfurt. Upon arrival at Dublin Airport she was stopped coming through immigration. An immigration officer asked her for her passport and when she showed him the false South African passport he asked her whose it was. The applicant replied that it was not her passport that she wished to apply for asylum. She was asked why she did not apply for asylum in Germany to which she replied that she did not even know Frankfurt was in Germany and knew nothing about claiming asylum there. Procedural history 10. The Commissioner’s section 13 report duly issued denying the applicant refugee status, largely on credibility grounds. The report concluded, inter alia:-
However, the applicant did not mention this in her questionnaire or in the submission made by the Refugee Legal Service, when asked to explain this, she replied, ‘He was working on the farm he was not the owner of the farm’, she went to say ‘I don’t know, maybe I was confused and maybe I didn’t read it. I tried to explain how it all happened in the questionnaire’. In view of the fact that the basis of the applicant’s claim for asylum changed from when she completed her Section 8 interview and when she completed her questionnaire, it is considered that the credibility of the applicant’s claim is seriously undermined”.
In view of the fact that the applicant states she returned to Chegutu in March 2009 following the incident in November 2008 it is considered the well-foundedness of her fear is seriously undermined. Furthermore, her failure to mention the incident in March 2009 prior to her interview despite providing a very detailed questionnaire and her solicitor providing a very detailed submission undermines the credibility of the applicant”. 13. Under the heading “State Protection” the report stated: “It would appear that state protection was not available to the applicant”. Under the heading “Internal Relocation”, the report made reference to the applicant’s movements within Zimbabwe and went on to state “it is concluded that the applicant has already relocated successfully within Zimbabwe for 3-4 months before leaving the country.” 14. An oral hearing of the applicant’s appeal to the Refugee Appeals Tribunal took place on 12th January 2010. The Tribunal’s decision issued on the 9th March 2010. The applicant’s claim was rejected on credibility grounds. The Tribunal’s findings are set out hereunder: 15. The Tribunal Member commenced his assessment by reference to paragraphs 37 and 38 of the UNHCR Handbook and went to state:-
The first credibility finding
18. Addressing the discrepancy between the questionnaire and the s.11 interview as to the farm owner’s name, the Tribunal Member stated:
20. In the course of her section 11 interview and at oral hearing, the applicant gave evidence that after leaving Chegutu, she had returned there again in March 2009 This issue was addressed in the section 6 analysis in the following terms:-
21. The applicant’s travel to Ireland was addressed as follows:-
23. Six grounds of challenge were set out in the statement of grounds. In the course of oral submissions, the applicant’s counsel distilled the grounds, as follows:-
(ii) The Tribunal’s unlawful assessment of the applicant’s credibility, in particular the reliance on peripheral issues. (iii) The Tribunal’s over reliance on what the applicant conveyed to the asylum authorities in her initial engagement with those authorities; and (iv) The Tribunal’s failure to have regard to country of origin information which was before ORAC and the Tribunal 24. There was no dispute but that the applicant was from Zimbabwe which was an important factor in this case. She had presented an identification card and a birth certificate. 25. It was submitted that the Tribunal Member failed to engage with or assess the applicant’s core claim, namely that she would be persecuted in Zimbabwe on account of imputed political opinion and that she would be forced into marriage in Zimbabwe. There were three elements to her core claim. Firstly, she and her family were victims of Operation Murambatsvina as a result of which her home in Harare was destroyed and the applicant and her family split up and displaced. The scale of suffering caused by Operation Murambatsvina was well documented in country of origin information and was a cause of concern to the UN and NGOs. Almost every town and city in Zimbabwe had been affected. It had been alluded to in one report as “a crime against humanity”. Secondly, the applicant’s sojourns in Mutoko and Mutare were difficult because of the harassment she and her family experienced from Zanu PF and rural dwellers who accused the family of being “sell-outs” because they came from the city and were perceived as not supporting that party. Counsel submitted that those circumstances, namely the applicant’s and her family’s eviction from their home and the problems they subsequently experienced when they relocated were sufficient to merit consideration for refugee status. This was something that should have been addressed by the Tribunal Member given that the country of origin information which was before him documented and corroborated the applicant’s claim. He was obliged to accept it or reject it, as the case may be, since it formed a basis of her claim and was elaborated on in the submission furnished to ORAC. However, the applicant’s claim to have been the victim of Operation Murambatsvina was not even dealt with in the section 6 analysis. Thirdly, while in Chegutu, the applicant and her father were targeted by individuals associated with Zanu PF who raped the applicant and threatened her with forced marriage. While it was for the Tribunal Member to accept or reject those claims, the position was that the claims were not considered. There was just a general disbelief expressed by the Tribunal Member, yet everything the applicant had stated was consistent with country of origin information. Counsel emphasised that violent attacks by way of reprisals by Zanu PF against people who were seen as failing to support the party were commonplace in Zimbabwe. This was well documented and such information was contained in a report from Human Rights Watch which was before the Tribunal Member. That report stated, inter alia, : -
Zimbabweans told Human Rights Watch that at several polling stations in Harare they were forced to pass through unofficial stations set up by ZANU-PF outside polling booths, submit their names and details to ZANU-PF officials. They were given cards and ordered to write down the serial numbers on their ballot papers so that ZANU-PF officials could trace those who had voted for Mugabe and those who had not”.
‘What we are seeing is probably 10 per cent of what has actually happened’ said the doctor, who described the violence as the ‘worst the country has witnessed’, worse even that the atrocities committed during the war for liberation in the 1970’s…”
29. The submissions made to the Refugee Applications Commissioner on the applicant’s behalf had requested the Commissioner to consider the applicant’s claim in light of what she had experienced and the available objective country of origin information. Those submissions and the country information attached thereto had pointed to the existence of Operation Murambatsvina and the consequences for the victims thereof, the existence and prevalence of mistreatment and violence perpetrated by Zanu PF supporters towards people who are opposed to or who are otherwise not aligned to the party; the effectiveness of state protection in Zimbabwe, in particular the existence of corruption in the police force having regard to the specific facts and circumstances outlined by the applicant; the existence and prevalence of the forced marriage of young girls and women in Zimbabwe and the difficulties faced by Zimbabwean refugees in South Africa. The Commissioner (and the Tribunal) had been referred to a copious amount of country of origin information. 30. Counsel contended that none of the reasons given by the Tribunal Member for rejecting the applicant went to the crux of any of her claims. Counsel relied on the principles of Cooke J. in I.R. v. The Minister for Justice, Equality and Law Reform [2009] IEHC 353. The manner in which the Tribunal Member addressed the applicant’s claim did not accord to the principles in I.R. or those set by MacEochaidh J. in R.O. v. Min. for Justice & Ors [2012] IEHC 573. 31. As far as the first credibility finding was concerned, it was not fair of the Tribunal Member to rely on minor inconsistencies, which may in fact not be inconsistencies. For the Tribunal Member to have placed such reliance on the ASY1 form/section 8 interview (a form filled out by officials) when it did not obviously contradict the applicant was wrong. The Tribunal Member was obliged to have regard to the contents of the questionnaire. Moreover, the Tribunal Member wrongly relied on the ASY1 form/section 8 interview over and above the extensive detail regarding the applicant’s claim which had been furnished by her legal advisors. The court was referred to the judgment of MacEochaidh J. in P.D. v. The Minister for Justice (Unreported, High Court, 20th February 2015).In this regard also, particular reliance was placed on principles three and four of I.R. in the context of the Tribunal Member’s failure to address the claim in the round and it was argued that the Tribunal Member did not adhere to principle five of I.R. in that the reasons the Tribunal Member drew from the facts of the applicant’s case were not cogent reasons to reject her asylum claim. 32. With regard to the second credibility finding, the differences highlighted and relied on by the Tribunal Member vis a vis the name of the owner of the Chegutu farm were small, inconsequential differences regarding a first name and were at best peripheral and not relevant to the applicant’s core claim yet no credence was given to this. The applicant had furnished an explanation for the mix-up in the name. Concerning this finding and indeed the third credibility finding, there was no reference in the analysis to the applicant’s core claim to have been raped, the threat of forced marriage, to her father had been targeted by Zanu PF in connection with plans to take over the farm or to her claim to have been a victim of Operation Murambatsvina. 33. With regard to the fourth credibility finding, while acknowledging that the applicant had not referred in her questionnaire to the fact that she had returned to Chegutu in March 2009, counsel stated that it was difficult to see how this omission could be regarded as a basis for rejecting her core claim of having been evicted from her home in Harare and later the victim of rape and the threat of forced marriage. 34. With regard to the finding made in relation to the applicant’s travel to Ireland (the fifth credibility finding), counsel relied on the dictum of Eagar J. in B.A. (Nigeria). V. Refugee Appeals Tribunal [2015] IEHC 76. 35. It was submitted that the reasons given by the Tribunal Member in the decision did not support his conclusion to reject the applicant’s claim, as required by Meadows v Minister for Justice Equality & Law Reform [2010]IESC. None of the reasons given to reject the claim could sustain the Tribunal Member’s conclusions even by standards set out in O’Keeffe v. An Bord Pleanala [1993] IR. The jurisprudence of this court has repeatedly set out that the Tribunal Member has to have regard to the full picture and country of origin information and it was submitted that the Tribunal Member was obliged to start on the premises that an applicant was telling the truth. The respondents’ submissions 36. Counsel for the respondents argued that the Tribunal’s decision rested entirely on the applicant’s credibility and this was assessed by reference to paragraphs 38 and 47 of the UNHCR Handbook. Having conducted his analysis, the Tribunal Member found the applicant’s credibility to be seriously wanting. Counsel submitted that the assessment of credibility was done in accordance with the principles set out in I.R. and conformed to the standard set out in Meadows. 37. The fact that the Refugee Legal Service had intervened at an early stage on the applicant’s behalf represented no more than that the Refugee Legal Service started on the premise that the applicant was truthful. On the other hand, the Tribunal Member found her story to be incredible. It was submitted that as a well educated woman, the applicant would be aware of events documented in country of origin reports; therefore it would not be surprising that an asylum claim would be consistent with such reports. Counsel argued that this was not a case where the Tribunal Member failed to deal with the applicant’s core claim. 38. It was submitted that the Tribunal Member lawfully arrived at a number of conclusions. The applicant’s account of her father’s status vis-à-vis the land was found to be wanting, yet the land issue was claimed by her as a basis of the treatment meted out to her. There were not just inconsistencies between what was set out in the ASY1/ section 8 interview and the applicant’s questionnaire, inconsistencies were apparent throughout her section 11 interview as evidenced by Q. 129 thereof. Furthermore, the applicant had given a contradictory account of her and her family’s movements, as evidenced by Qs. 87 - 89 and Q. 92 - 97 of the section 11 interview. 39. While the applicant’s counsel requested this court to take note of the preparatory work done by the Refugee Legal Service prior to the section 11 interview and the information made available to the asylum authorities, it was surprising that there was no medical evidence to support the applicant’s medical difficulties and the fact that she was under psychiatric care in Ireland. No psychiatric report was furnished. There was no evidence that the applicant was HIV positive as a result of the claimed rapes. 40. While acknowledging that he was largely confined to the Tribunal Member’s analysis of the claim, counsel referred the court to the credibility findings which had been made by the Commissioner notwithstanding the detailed preparatory work undertaken by the RLS on the applicant’s behalf. It was argued that what the Tribunal Member did in the present case was to look at the applicant’s credibility and then set out his reasons for his rejection of her credibility. There was no argument made that the Tribunal Member did not read the material which was placed before him or that he made material errors of fact. The argument advanced was that the Tribunal Member placed too much weight on the findings he made with regard to the applicant’s credibility in order to reject her asylum claim. However, in accordance with the principles set out in Meadows and O’Keeffe, if there was evidence on which the Tribunal Member could rely to reach the conclusion he did, this court cannot interfere with the decision. Notwithstanding the voluminous country of origin information documenting the situation in Zimbabwe, the Tribunal Member disputed the account given by the applicant. It was submitted that he was perfectly entitled to attach weight to her credibility in accordance with O’Keeffe and Meadows. Even if this court disagreed with the credibility findings made by the Tribunal Member, it was precluded from interfering therewith, having regard to the law as set out in O’Keeffe and Meadows. 41. It was submitted that the applicant’s claim was properly assessed in accordance with principles 1, 2, 3, 4, 5, 6 and 8 of I.R., in the context of the Tribunal Member having assessed the applicant at oral hearing. Counsel placed particular reliance on principle 8. 42. The Tribunal Member’s analysis was directly connected to material aspects of the applicant’s claim. The first and second reasons given by the Tribunal Member related to discrepancies in the applicant’s account of the ownership of the land, a matter at the heart of her claim. As there was a material connection between the farm and the claim, the Tribunal Member was entitled to view the inconsistencies (including those at oral hearing) in her account as relevant. The Tribunal was entitled to find that no aspect of the claim supported the applicant’s account either on a subjective or objective basis. It was not the law that country of origin information of itself can be sufficient, otherwise all asylum claims could simply rely on country of origin information. 43. The third credibility finding centered on the applicant’s claimed inability to recall the period of time her father worked on the farm. Again, it was submitted that the Tribunal Member was entitled to come to the decision he did, the burden was on the applicant to prove her claim and there was no medical evidence adduced by her at the appeal stage (or before this court) to give credence to her inability to recall matters that had occurred as she claimed. 44. The fourth credibility finding arose because of the applicant’s failure, prior to the section 11 stage, to say that she had returned to Chegutu in March 2009. This failure was addressed at interview and in the course of the oral hearing - the applicant was given an opportunity to respond. Thus, there was no breach of fair procedures. Accordingly, the Tribunal Member was entitled to draw the conclusion he did. 45. With regard to the fifth credibility finding, counsel submitted that the Tribunal Member was entitled to rely on his own common sense, in assessing the applicant’s account of her travel to Ireland. This was an approach which has been endorsed by the High Court. It was entirely rational for the Tribunal Member to find that the applicant was not forthcoming in her explanations. Considerations The credibility findings 46. In I.R., Cooke J. set the bar for the assessment of credibility, in articulating the following principles: :
2) On judicial review the function and jurisdiction of the High Court is confined to ensuring that the process by which the determination is made is legally sound and is not vitiated by any material error of law, infringement of any applicable statutory provision or of any principle of natural or constitutional justice. 3) There are two facets to the issue of credibility, one subjective and the other objective. An applicant must first show that he or she has a genuine fear of persecution for a Convention reason. The second element involves assessing whether that subjective fear is objectively justified or reasonable and thus well founded. 4) The assessment of credibility must be made by reference to the full picture that emerges from the available evidence and information taken as a whole, when rationally analysed and fairly weighed. It must not be based on a perceived, correct instinct or gut feeling as to whether the truth is or is not being told. 5) 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. 6) The reasons must relate to the substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given. 7) A mistake as to one or even more facts will not necessarily vitiate a conclusion as to lack of credibility provided the conclusion is tenably sustained by other correct facts. Nevertheless, an adverse finding based on a single fact will not necessarily justify a denial of credibility generally to the claim. 8) When subjected to judicial review, a decision on credibility must be read as a whole and the Court should be wary of attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination in disregard of the cumulative impression made upon the decision-maker especially where the conclusion takes particular account of the demeanour and reaction of an applicant when testifying in person. 9) Where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in support of a claim and which is prima facie relevant to a fact or event pertinent to a material aspect of the credibility issue, the reasons for that rejection should be stated. 10) Nevertheless, there is no general obligation in all cases to refer in a decision on credibility to every item of evidence and to every argument advanced, provided the reasons stated enable the applicant as addressee, and the Court in exercise of its judicial review function, to understand the substantive basis for the conclusion on credibility and the process of analysis or evaluation by which it has been reached. 48. Apart altogether from the question whether the applicant’s claim mandated an analysis of the copious country of origin information on file, the dictates of fairness required that the Tribunal Member consider the “full picture” when assessing the applicant’s subjective credibility. The question to be determined is whether this was done in the present case. 49. Of the five credibility findings which led to a rejection of the applicant’s claim for refugee status, two related directly to the ownership of the farm in Chegutu where the applicant claims she and her father took up residence in mid 2008 after her father secured a job there. The Tribunal Member deemed it not credible that a mistake could have occurred regarding the ownership of the farm as set out in the s.8 interview/ ASY1 Form, or that the applicant would have agreed to the s.8/ASY1 Form process attributing ownership of the farm to her father without correcting the record and ensuring that the ASY1 Form properly recorded her statement. It is a given that the applicant duly signed the ASY1 Form which , inter alia, provides that by signing an applicant confirms that the information provided “is correct”. In the present case, the applicant’s ASY1 Form recorded the s. 8 interview conducted with the applicant, as follows:
Applicant states she was in south Africa while on her travel to Ireland. Applicant states she was trying to get a passport. Subsidiary protection notice issued. Applicant states that she has never applied for asylum here or in any other country before. Applicant states that the police and the Zanupf are after her. Applicant states that her father was staying on his farm and the zanupf war veterans came to take the farm off him. Applicant states that the zanupf said that her father was with the MDC. Applicant states that her father wasn’t a political man. Applicant states that the Zanupf war veterans burnet(sic) her home and raped her in front of her father. Applicant states that they said if her family and herself wanted to stay on the farm she had to marry traditional healer who was an old man. Applicant states that this man would of (sic) used her for rituals. Applicant states this all started around November of last year. Applicant states in January she moved to a different part of Zimbabwe but the problem just followed her. Applicant states she moved to south Africa at the end of march but the place she was in didn’t like Zimbabwe and she wasn’t allowed to go out. Applicant states she doesn’t know what is happening to her family now. Applicant would like a female caseworker at her section 11 interview.”
A Yes, from about April 2008. Q 93 What did he do there? A He was buying diamonds to sell. Q 94 So when did he start working on the farm? A Around July or August 2008. Q 95 When did he stop working there? A He worked there for about 2 months. He stopped working there around September. Q 96 When did he start working on the farm again? A After September he was just working part time. Q 97 What was his job on the farm? A He didn’t have an exact job-he was like a labourer-everyday he would be told what he was going to do. Q 98 What did your father work at when he lived in Harare? A He owned an electronics business. Q Between July or August and November did your father have any problems from anybody while he was on the farm? A My father is a type of person who doesn’t discuss anything. So he didn’t tell me anything.”
A He was working on the farm he was not the owner of the farm. Q111 So why did you say at your Section 8 interview that they wanted to take the farm from him. This is a different story than the one you gave in your questionnaire and today. A I don’t know, maybe I was confused and maybe I didn’t read it. I tried to explain how it all happened in the questionnaire.” In her questionnaire, the applicant described how after the family’s displacement from Harare and her and her father’s various moves to Mukato, Mutare, Murambinda and Cheguto, “[her] father got a job in Cheguto on a farm they called Downs farm.” The applicant went on to refer to the farm in the following terms: “Around November 2008 there was a rumour that the manager of the GMB (Grain Marketing Board wanted to take over the farm from Mr. Job Taylor…” 52. The summary of the applicant’s evidence before the Tribunal recorded the applicant as stating, inter alia, : “She says she moved to Chegutu in 2008. She says she moved there with her father. She says her father was working on a farm there. She says she heard rumours that the directing manager of the Grain Marketing Board (GMB) wanted to take over the farm her father was working on”, evidence which accorded with the applicant’s questionnaire but which differed from what was recited in the ASY1 Form vis a vis ownership of the farm. The summary of the evidence given at the Tribunal hearing also recorded the applicant’s claim to have been displaced by Operation Murambatsvina and her claim to have been raped in the presence of her father and threatened with forced marriage, claims which largely replicated what she had set out in her questionnaire and which had been maintained on her behalf by her legal advisers prior to the s.11 interview. The rapes and threat of forced marriage was also referred to in the ASY1 Form. In the submission furnished on 7 August 2009, her solicitor advised that “[t]he applicant instructs that, following her family’s displacement as a result of Operation Murambatsvina, the difficulties they experienced in Mutare forced them to move again to Murambinda, in and around the beginning of 2008, shortly after which time she moved with her father to Chegutu, where he had procured a job on a farm,” (emphasis added)The submission then went on to outline the applicant’s claims of persecution in like terms to what she herself set out in the questionnaire. 53. It is the case that the discrepancy between the ASY1 Form and the applicant’s later statements as to ownership of the farm exercised the mind of the Tribunal Member, as the referred to credibility findings demonstrate. The Tribunal decision records that during the hearing the applicant was asked to name the owner of the farm whom she initially named as a “Mr. Downs”, “Mr. Downs Taylor”. When it was put to her that in her questionnaire she had named the owner of the farm as “Mr. Job Taylor”, she went on to claim that that was his name. She explained the inconsistency on the basis that “she was trying to forget things”. 54. Of note to this court, with regard to the applicant’s sequence of answers before the Tribunal is that she had previously mentioned the name “Downs” in her questionnaire when describing the farm where her father had obtained employment as “a farm they called Downs farm”, before going on to refer to the Grain Marketing Board wanting to “take over the farm from Mr. Job Taylor.” 55. In the first instance, I am satisfied that the Tribunal Member placed undue weight on the contents of the ASY1 Form in circumstances where in the manuscript which attached to her questionnaire the applicant ascribed ownership of the farm to a named individual and moreover clearly referenced her father’s connection to the farm on the basis of his having obtained employment there after the series of movements from place to place which followed the family’s claimed eviction from their home in Harare. In this circumstance the inconsistency with what was recorded in the ASY1 Form was unfairly weighted against the applicant. Taken as a whole, the applicant’s questionnaire and the sequence of questions in the s. 11 interview, covering as they did claimed events from the time the applicant left Harare with her father and her and her father’s sojourns in Mukoto, Mutare and Murambinda and eventual travel to Cheguto, were on the face of it at least largely inconsistent with the idea that her father could have been the owner of the farm. This should, as a matter of fairness, have caused the Tribunal Member not to place undue weight on these particular inconsistencies which in the view of this court related to a peripheral matter (the ownership of the land), absent any other compelling facet of incredibility inherent in the applicant’s claim to have been persecuted. I do not agree with the respondent’s counsel’s submission that ownership of this land was at the heart of her claim. This contention was never advanced by the applicant, nor did the Tribunal Member, notwithstanding his erroneous reliance on the inconsistencies regarding the ownership of the farm, state as much. The heart of the applicant’s claim related to her allegations of rape and the threat of forced marriage against a background of the applicant and her family having been forcibly displaced as a result of Operation Murambatsvina. Over and above the foregoing, I accept the applicant’s counsel’s argument that primacy should have been afforded to the contents of the applicant’s questionnaire over the s.8 interview/ASY1 given that the Refugee Act, 1996 (as amended) provides for a questionnaire to be completed by a protection applicant which, as the statute provides, constitutes the “basis of the investigation” at interview. 56. In the course of his judgment in PD v Min. for Justice, Maceodhaidh J states:
In all the circumstances, I am satisfied that the Tribunal Member in relying on the two aforementioned credibility findings as a basis to reject the applicant’s claim for refugee status erred in law and acted unfairly such as to affect the decision in this case. 59. With regard to the third credibility finding, I am of the view that this particular finding was open to the Tribunal Member on the evidence. It was within the realm of reasonableness for him to contrast the detail the applicant was able to give in her questionnaire regarding the length of time her father spent on the farm with her lethargy in answering questions on this issue at the hearing. 60. The fourth credibility finding arose in circumstances where the applicant had apprised the s.11 interviewer that she last saw her father in March 2009 in Chegutu. Later in the interview, the following exchange took place:
A Because I thought it was going to be all over. I had nowhere to live and nowhere to stay. I thought if I went there everything would be okay. Q130 When you went back to Chegutu in March did anything happen to you? A Those 4 men continued to harass me-they came to the house again. Q131 Why is this not in your questionnaire or in your solicitor’s letter? A Telling the story is different to somebody asking questions.” 62. Similarly, the fifth credibility finding was open to the Tribunal Member on the evidence before him. While the applicant’s counsel urged the court to adopt the approach of Eager J. in B.A. (Nigeria) v. Refugee Appeals Tribunal,[2015] IEHC 76, the court notes that the case was not made by the applicant that in her travel from South Africa to Ireland she was accompanied by an agent whom she relied on, which appears to have been the case in B.A. (Nigeria). Thus, the Tribunal Member was entitled to take a common sense approach to the matter and conclude, effectively, and not unreasonably, that it was not credible that the applicant could have passed through three international airports on her way to and from Germany and not know what country she was in. That being said however, I concur with the opinion of Eager J. that the finding on the applicant’s travel was at best a peripheral issue which of itself would not be sufficient to reject the applicant’s claim for asylum status. 63. While the above three findings cannot be impugned, the issue is whether they served to undermine the applicant’s credibility “to such degree that the very basis of her claim is not believed”, as determined by the decision maker here. Even if one were to add back into the equasion the two findings which this court has impugned for the reasons already stated, it remains the case that the Tribunal Member rejected the applicant’s claim of having been raped and threatened with forced marriage on a relatively narrow and in part peripheral basis, and without embarking on an assessment of those claims in the context of the country of origin information which was before him. I now turn to this issue. Country of origin information 64. A vast array of country of origin information was furnished by the applicant’s solicitor in advance of the applicant’s s.11 interview. The s.13 report did not however refer to any aspect of the country information. Much the same can be said for the approach adopted by the Tribunal. Yet, ground 2 of the Notice of Appeal referred the Tribunal, inter alia, to the Commissioner’s alleged failings in this regard and to the country information which was attached to the submission made to ORAC on 7th August 2009. 65. The question to be addressed is whether there was information relevant to the applicant’s claim which the decision maker should have considered in the context of the protection claim before him. 66. The first observation to be made is that none of the five credibility issues which exercised the mind of the Tribunal Member could be said to go to the crux of the applicant’s claim, namely that she was a displaced person as a result of Operation Murambatsvina and later an alleged victim of persecution by persons she believed to be Zanu PF supporters, who she alleged perpetrated two rapes upon her and subjected her to a threat of forced marriage. 67. In the view of the court there was relevant country of origin information put before the Tribunal Member which, at a minimum, had the potential to inform his thinking in the context of his consideration of the applicant’s claim for refugee status and the credibility of that claim. 68. There was a considerable body of information documenting the use of Operation Murambatsvina and the plight of those affected as a result thereof. At the very least, this gave context to the applicant’s account of her and her family’s peripatetic lifestyle, quite apart altogether from the question whether the applicant could be entitled to refugee status having allegedly been a victim of this scheme. More importantly, in the context of the applicant’s claim to have been persecuted through rape and the threat of forced marriage, the country of origin information clearly documented that such incidents were prevalent in Zimbabwe, as evidenced by the extracts already quoted in this Judgment where rape was referred to as a “deplorable” weapon used against those perceived as not supporting Zanu PF. Of note to this court was the 2008 Human Rights Report on Zimbabwe under the heading “Women” where, inter alia, it is stated that “Police acted on reported rape cases not associated with political violence” (emphasis added) 69. In her questionnaire, in the s.11 interview and in the course of her appeal hearing, the applicant referred to the negative response from the police when she reported the rapes. The applicant’s claim in this regard was summed up in submission furnished to ORAC in August 2009: “The Applicant claims that the authorities in Zimbabwe were unwilling or unable to provide her with effective State protection……stating…at question 25b [of the questionnaire] ‘The police told me and my father to comply and to do whatever they were asking us or else we will loose[sic] our lives and the place were[sic] we call home. They warned us not to come to the police again.’ Elsewhere on her Questionnaire the Applicant stated: ‘In the next morning we went to the police and reported but the police only told my father u know what they want. The police told us that we must comply and they told us if I want to live I had to give them what they wanted or else I will of which I did not understand wat [sic] it is they want. The police warned us not to come back to the station again only them will come after us if we don’t comply.” 70. According to the submission, the applicant claimed that the police flatly refused to assist telling her father “Do you think you are above the law? Do you think you can change things? Do you know who you are dealing with?” The police had also stated that “my father had to comply with the requests” and “If you want you and your daughter to live, give them what they want.” 71. The US department of State Report from 2008 stated that the “Police were poorly trained and equipped, underpaid and corrupt…Security forces were rarely held accountable for abuses.” 72. The Human Rights Watch Report of 14 January 2009 stated, inter alia, that “Law enforcement agencies have subverted the rule of law. The police are responsible for widespread violations, including harassment, threats and violence against opposition supporters and human rights activists, as well as torture and other mistreatment. Police have routinely refused to take action against ZANU- PF supporters and militia implicated in political violence.” 73. The court notes that the applicant claimed to have a well founded fear of persecution on the ground, inter alia, of imputed political opinion. 74. Other than the assertion that he “considered”, inter alia, the country of origin information and that it“[did] not assist the Applicant in circumstances where her credibility [was] found wanting..”, there is no indication on the face of the decision as to how the applicant’s account of events was measured against the country information on file. At the very least, that information was capable of having an effect on the credibility assessment of the applicant, even taking into account the five frailties in her account, as identified by the Tribunal Member (two of which have in any event been impugned by this court). To my mind, the adverse credibility findings were not of so fundamental a nature that they negated the obligation on the Tribunal Member pursuant to reg. 5(1) of the European Communities (Eligibility for Protection) Regulations 2006 to take account of “all relevant facts as they relate to the country of origin at the time of taking a decision...” Thus, the content of the country information was required to be addressed by the Tribunal Member and to be weighed accordingly and to be seen to be done. There is however no such evidence on the face of the decision. While acknowledging that the determination of the protection applicant’s credibility was entirely a matter for the Tribunal Member, the failure to properly assess her claim in the context of available country of origin information is such that it affects the Tribunal Member’s conclusion that the applicant had not discharged the burden on her to establish that she was a refugee. Conclusion 75. For all of the reasons set out above, and bearing in mind the cumulative nature of the findings to reject the applicant’s claim, I find that the Tribunal Member rejection of the applicant’s core claim is flawed to such extent as warrants intervention by this court. 76. I am satisfied to grant leave in this case. This being a telescoped hearing, I will grant an order of certiorari quashing the decision and make an order remitting the matter to the second named respondent for a de novo hearing before a different Tribunal Member. |