High Court quashes Refugee Appeals Tribunal decision for failing to assess future persecution risk despite past event credibility issues.

[2017] IEHC 55

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 320 J.R.]

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED)

AND IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

BETWEEN

O.N.

APPLICANT

AND

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

RESPONDENTS

JUDGMENT of Ms. Justice O’Regan delivered on the 9th day of February, 2017

Introduction

1. Leave was afforded to the applicant to maintain judicial review proceedings to quash the order of the first named respondent

bearing date of the 5th April, 2016 and furnished to the applicant on the 20th June, 2016 on grounds which included an assertion that

the Tribunal applied an incorrect standard of proof.

2. I delivered judgment in this matter in respect of the standard of proof required by an applicant relative to the history of past

events on the 17th January, 2017 when I held that the correct standard of proof was the balance of probabilities coupled, in

appropriate circumstances, with the benefit of the doubt. Further submissions were made on the 26th January, 2017 in respect of the

balance of the issues raised on the statement of grounds. The outstanding grounds might be summarised as follows:—

(a) The Tribunal failed to give any reasons for rejecting the explanations afforded by the applicant in respect of

discrepancies in his evidence.

(b) The Tribunal failed to consider the significant lapse of time since events as between the application for refugee status

and the determination of the appeal.

(c) The Tribunal erred in affording little value to the documents produced by the applicant in circumstances where the

Tribunal indicated it was not in a position to verify the authenticity of such documents.

(d) The Tribunal erred in failing to state in clear and unequivocal terms whether the core claim on behalf of the applicant

was accepted and in this regard the applicant asserts that his core claim was that his parents had died as a result of an

attack, his brother fled to the UK and was granted refugee status and he himself was exposed to persecution at the

hands of Zanu-PF.

(e) The Tribunal erred in failing to undertake an assessment of possible future persecution if the applicant was returned to

Zimbabwe.

(f) The Tribunal had a shared burden with the applicant and failed to discharge same by availing of the power contained in

s.16 (b) of the Refugee Act 1996, as amended.

Submissions

3. The focus of submissions on behalf of the applicant related to the finding by the Tribunal to the effect that it could not verify the

authenticity of one particular document and found same to be of little value. The document is a letter of the 23rd December, 2013

purportedly from the Zimbabwe Congress of Trade Unions and is addressed “To whom it may concern” and sets out the fact that D

and AM were active members within the Trade Union. Thereafter details are given of two attacks on them resulting in their ultimate

deaths in January and April, 2007 respectively. The intonation in the letter is to the effect that the attacks which resulted in the

respective deaths of these two parties were carried out by the Central Intelligence Office.

4. The applicant complains:

(a) That this particular letter was in fact used by the Tribunal in identifying discrepancies in the applicant’s history of

events and therefore should not therefore be discounted otherwise.

(b) The Tribunal had a facility under s. 16 (6) of the Refugee Act, 1996 (as amended) to raise queries of the Commission

in order to, if it wished, authenticate the document but chose not to do so.

(c) The applicant argues that if steps were taken to verify or otherwise the document this would have been a make or

break situation in respect of the applicant’s application for refugee status in that it is asserted if the document was

accepted as being valid the applicant would succeed in its application whereas if it was found to be invalid the applicant

would fail.

(d) There was a positive obligation on the Tribunal in the circumstances to investigate the document and in this regard

the judgment of Barr J. in A.O. v RAT [2015] IEHC 253 where it was held that there was a positive obligation on the RAT

to investigate a document if material.

(e) The applicant also refers to country of origin information to the effect that in assessing who may be at risk from

politically motivated violence it is not a simple matter as it appears as violence tends to be targeted at those with a

perceived political profile and not necessarily a high level.

5. On behalf of the respondent it is countered:

(a) The judgment of Barr J. aforesaid is under appeal and in any event there was an entirely different finding in that case

to distinguish it from the instant case. In A.O. the Tribunal finding was to the effect that it was unlikely that the

documents were genuine whereas in the instant matter, in the impugned decision, the RAT merely stated that they could

not verify the document and they gave it little weight.

(b) The document was not as significant as the applicant contends for because even if the document was accepted as

genuine it merely identified the difficulties encountered by two parties expressed to be the parents of the applicant which

culminated in their death in January and April, 2007, respectively. Furthermore the respondent contends that the only

judgment relied upon by Barr J. to arrive at the positive obligation on the part of the respondent was an Australian case

which was subsequently overturned on appeal.

(c) It is asserted that the document was not in fact relied upon in countering the applicant’s claim but rather, when the

applicant produced the document in apparent support of his claim, the Tribunal identified the inconsistencies as between

that document and the stated claim of the applicant.

(d) Assuming that the document was accepted as being genuine nevertheless this did not advance the applicant’s claim

as the applicant acknowledges that he remained in B until late 2012 when he heard Zanu-PF were actively looking for new

members and therefore he went to the town of P, approximately 200 km from B where he resided with his aunt until

November, 2013 when apparently his aunt advised him that two men had called to the house looking for him and they

were talking about political matters. On this basis the applicant feared that the men were from Zanu-PF who had tracked

him to the town of P and he decided to flee Zimbabwe. In these circumstances the respondent suggests that the possible

death of his parents as per the letter from the trade union could not be considered core therefore to the applicant’s need

to flee Zimbabwe and seek asylum.

6. It is indeed difficult to identify the applicant’s core story in the within matter given the time span involved — in late 2006 the

assertion is made that his parents were abducted and beaten and in late 2013 the applicant ultimately fled Zimbabwe.

7. That issue however in my view does not need to be determined for the purposes of the current exercise, as even if the document

was verified this would not sufficiently restore the applicants’ credibility in the circumstances.

8. The applicant suggests there is a shared burden as between the RAT and the applicant in or about the appeal process and further

asserts in the instant circumstances that there was an obligation pursuant to the provisions of s. 16 (6) of the Refugee Act, 1996 (as

amended) to pursue further the authenticity of the trade union document by the Tribunal. As aforesaid the applicant was in a position

to rely on one case only in support of this proposition which case is under appeal, leave to appeal was afforded on the 16th of June,

2015 and the only authority for same was subsequently overturned.

9. Section 11A (3) of the 1996 Act provides that where an applicant appeals against a recommendation of the Commissioner under s.

13, it shall be for him or her to show that he or she is a refugee.

10. That provision is incorporated under the heading of “Burden of proof”.

11. Section 16 (6) of the 1996 Act provides:—

“(6) The Tribunal may, for the purposes of its functions under this Act, request the Commissioner to make such further

inquiries and to furnish the Tribunal with such further information as the Tribunal considers necessary within such period

as may be specified by the Tribunal.”

12. Furthermore, under subs. 16 it is provided that before deciding an appeal the Tribunal is mandated to consider documents as

therein set forth and it is noteworthy that this mandated obligation does not incorporate any reference to subs. 6 aforesaid.

13. Insofar as the trade union document is concerned para. 5.9 of the decision makes reference to same in the following terms:—

“The Tribunal is not in a position to verify the authenticity of the documentation submitted by the applicant as part of its

claim. Given the inconsistencies in the applicant’s account as outlined above, the Tribunal finds the documentation to be

of little value in corroborating the applicant’s version of events.”

Even if there was a positive duty on the respondent to deploy s.16 (6) to verify the document (a duty which I am not satisfied

exists) it is to no avail to the instant applicant in the context of being declared a refugee based on past facts, given the credibility

issues.

14. It seems to me clear that although the Tribunal was not in a position to verify the authenticity of the documentation,

nevertheless having regard to the inconsistencies in the appellant’s account the Tribunal found that the documentation was of little

value in corroborating his version of events and therefore it seems to me this is not the case in which the documentation was not

considered at all.

15. In my view the fact that the Tribunal found the documentation to be of little value, as opposed to no value at all in corroborating

the appellant’s version of events is such that the documentation together with the fact that it was found that the applicant was a

Zimbabwean national comprised two elements of the applicant’s claim, which although remain insufficient to establish a past

persecution, should nevertheless be considered in the context of a risk of future persecution and in this regard I refer to the judgment

of Peart J. in De Silveria v. Refugee Appeals Tribunal [2004] IEHC 436, (Unreported, High Court, Peart J., 9th July 2004) and the

judgment of Cooke J. in M.A.M.A. v. Refugee Appeals Tribunal & Ors. [2011] IEHC 147 . The significant portion of the judgment in

M.A.M.A. (para. 17) is already quoted by me in para. 54 of my earlier judgment in this matter and a portion thereof of particular

significance is as follows:—

“The sole fact that particular facts are events relied upon as evidence of past persecution have been disbelieved will not necessarily

relieve the administrative decision maker of the obligation to consider whether, nevertheless, there is a risk of future persecution of

the type alleged in the event repatriation.”

16. It is not for the High Court in a judicial review application to decide as to the precise impact of the finding of lack of credibility or

indeed the precise impact of the finding “to be of little value in corroborating the applicant’s version of events” but rather this is a

decision to be made by the RAT.

17. I am of the view therefore that the decision impugned herein does not consider the risk of future persecution based upon the fact

that the Tribunal was satisfied that the applicant was Zimbabwean and based upon whatever portion of the documentation that was

of help (albeit little) to the applicant constituted an error of law on the part of the Tribunal.

Conclusion

18. In conclusion therefore I am of the view that there is a part in the applicant’s history of events which might comprise the basis

for a consideration of potential future persecution and in those circumstances it appears to me it is incumbent on the Tribunal to give

consideration to these matters in the context of a future risk of persecution and accordingly the relief sought in the Notice of Motion

is granted solely on the basis that the decision is quashed to the extent that the decision maker failed to contain a reasoned

assessment of the risk of future persecution. The matter is thus remitted for re-consideration on this discrete basis and for a

supplemental decision to remedy the omission, without obligation to re-open the other considerations/findings as set out in the

decision, which the Court upholds.