The High Court has quashed a Refugee Appeals Tribunal decision affirming the refusal of a Zimbabwean woman’s refugee application and ordered that her appeal be reheard by a different tribunal member.
In a judgment delivered on 21 May 2015, Mr Justice Robert Eagar found that the applicant had not been afforded fair procedures. The case was a judicial review of the Tribunal’s 2010 decision. The High Court did not decide whether she was entitled to refugee status; it returned the appeal for a fresh hearing in accordance with law.
The woman said she supported the Movement for Democratic Change (MDC), though she was not a party member. She claimed that in April 2008 soldiers abducted and raped her after mistaking a church gathering for a political meeting. She attributed a later HIV diagnosis to the rape. The judgment records these as her claims.
The Tribunal had affirmed the Refugee Applications Commissioner’s recommendation that she not be recognised as a refugee. It found her fear of return was not objectively well-founded, citing her answers about the MDC, her journey to Ireland and her failure to seek asylum in South Africa. It also treated the attack as random. The applicant challenged the decision, arguing that the Tribunal had not clearly decided whether the alleged rape occurred, had misapplied the law and had failed to engage with country information about Zimbabwe.
Justice Eagar said the word “random” did not adequately describe an attack that, in the context of the material before the court, could have been intended to harass and intimidate suspected MDC supporters. He also found that the Tribunal’s criticism of her explanation of the MDC’s open-hand symbol was incorrect: she had said it represented change, a meaning supported by the country information cited in the judgment.
The judge held that the Tribunal had wrongly applied a provision concerning whether Ireland was the first safe country reached, because the applicant had not made that claim. He further found that the Tribunal had failed to address the past-harm provisions in the 2006 protection regulations, including whether there were good reasons to consider serious harm would not recur and whether compelling reasons arising from past harm could support protection.
The court also found that the Tribunal failed in its statutory duty to consider relevant country-of-origin information. The judgment referred to reports describing intimidation and violence against MDC members and suspected supporters, including reports of rape during Zimbabwe’s 2008 election period.
The court granted certiorari, quashing the Tribunal decision, and remitted the appeal to a different member for a hearing in accordance with law. It directed that its judgment be included in the material put before that member.