The applicant was a national of Zimbabwe who claimed to fear persecution there on account of her political opinion based on her involvement with the Movement for Democratic Change (“MDC”). She arrived in Ireland in 2002 and was granted permission to remain in the State on conditions that she would not take up employment or engage in any business or profession and not remain later than 10 November 2002. However, on her arrival the applicant took up a position working as a child-minder and au pair for a family in Dublin. When the family left the State, she claimed asylum in 2008. The Refugee Applications Commissioner recommended that she not be declared a refugee, her claim showing either no or a minimal basis for the contention that she was a refugee, and she appealed unsuccessfully by way of paper appeal to the Refugee Appeals Tribunal, whose decision she challenged by way of judicial review.
The Tribunal found that the applicant had failed to provide a reasonable explanation for not claiming asylum immediately on arrival in the State. It also found that she could have applied for asylum in either South Africa or France, the countries which she travelled through en route to the State. It also held that the country of origin information attached to the s. 13 report did not establish that she would have difficulties in Zimbabwe in circumstances where both the MDC and Zanu-PF parties were in power.
The High Court had granted the applicant leave to challenge the Tribunal’s decision on the grounds that:
(i) the Tribunal had erred in making a credibility finding that the applicant had not provided a reasonable explanation for failing to claim asylum when she came to Ireland in 2002;
(ii) the Tribunal erred in making a credibility finding that the applicant could have claimed asylum in a country she passed through en route to Ireland;
(iii) there was no country of origin information supplied or reasons provided for the determination that the applicant would be safe in Zimbabwe because the Zanu-PF and MDC parties were in power;
(iv) the Tribunal erred in failing to put any country of origin information in support of the above finding to the applicant if such information had been sourced;
(v) the Tribunal failed in its obligations to consider all the relevant facts as they related to the country of origin pursuant to the EC (Eligibility for Protection) Regulations 2006; and
(vi) the Tribunal failed to consider the applicant’s credibility in the context of the political and human rights situation in Zimbabwe over the two years preceding the decision.
The High Court at the post-leave stage upheld the Tribunal’s decision. It held that the Tribunal had not erred in impugning the credibility of the claim by reference to the applicant’s failure to apply for asylum when she first arrived in the State, noting that she had claimed in her asylum application that she was fleeing persecution and that she considered her life to be in danger. It noted that, by failing to make an asylum application, she was in danger of being deported at any moment because, by working as a childminder, she was in breach of her residence conditions. It rejected the claim that hers was a sur place application.
In this regard, it interpreted s. 11B(d) of the Refugee Act 1996 to mean that, when a person arrived at the frontiers of the State for reasons completely unconnected with a flight from persecution, no explanation was required to be provided for not having sought asylum on arrival at the frontiers of the State if, at a later date, application was made on a sur place basis. It held that those circumstances did not apply to the applicant because there was no doubt that, on her arrival in the State, she claimed to be fleeing persecution in Zimbabwe. It disagreed with her contention that the danger to her had increased during her six year stay in Ireland and that the alleged recent persecution of her family members established her as a sur place applicant, considering that, at best, part of her application for refugee status was grounded on events which have taken place since her departure from her country of origin. However, the core of her claim related to her past participation in a political party and past persecution related to that activity and it therefore found that the Tribunal had correctly applied the provisions of s. 11B(d) of the Act of 1996 by weighing her failure to provide an explanation for not seeking asylum when she arrived in the assessment of her general credibility. In the court’s view, a person who claimed that the source of persecution had become more serious since the time he or she left his or her country of origin was not a refugee sur place.
The court also held that the negative credibility finding based upon the failure to claim asylum in countries through which the applicant was transiting was not unlawful. As the applicant claimed to have been fleeing Zimbabwe in fear of her life, it was not unreasonable to make a negative credibility finding based upon a failure to seek protection at the first available opportunity, even though there was no rule requiring a person fleeing persecution to seek protection in the first safe country reached.
The court also considered the Tribunal’s finding that the applicant could safely return to Zimbabwe, which was impugned on the basis of lack of reasons. In that regard, the court recalled that the core of the applicant’s claim was that her participation in opposition party politics caused her to suffer past persecution and to fear future persecution. It noted that the Tribunal simply did not believe that she ever had a well-founded fear of persecution and, inferentially, that there was anything from which she needed protection.
It also noted that the Tribunal had decided that the applicant had not submitted any country of origin information or any other evidence to suggest that the circumstances which caused her to flee Zimbabwe six years earlier still obtained. It was public knowledge that the MDC opposition party had enjoyed success in national elections, and whilst the Tribunal might have overstated the position by saying, at the date of its decision, that the MDC were in power, the court took the view that it would be wrong to read its decision as a finding that state security was available to protect the applicant from an established fear. No fear existed at all.
The High Court upheld the Tribunal’s finding of lack of credibility in the claim based on the applicant’s failure to seek protection when she arrived in the State and held that she was not a refugee sur place.