The High Court has set aside an International Protection Appeals Tribunal decision refusing a Zimbabwean applicant refugee status and subsidiary protection, finding that the tribunal’s credibility assessment was legally flawed.
In a judgment delivered on 11 January 2023, Mr Justice Garrett Simons ordered certiorari quashing the decision and remitted the appeal to a differently constituted division of the tribunal. The new division must reconsider the appeal in accordance with the High Court’s findings. The court did not decide whether the applicant’s protection claims were true or whether she qualifies for protection.
The applicant’s case was that her political activities in Zimbabwe placed her at risk. She said she had been involved with both the Movement for Democratic Change and ZANU PF, and had secretly passed information between them. She also alleged that after alerting MDC to a planned arson attack on opposition-linked houses, she was abducted, beaten, tortured and raped. These were allegations, not findings by the High Court.
The tribunal had rejected the account as lacking credibility, finding, among other things, that the applicant was not a member of either party and had not been targeted by them. It considered country of origin information only after reaching adverse findings on credibility.
The High Court held that the tribunal had approached the country information in the wrong order. Relevant background on political violence in Zimbabwe, including reported abuses by ZANU PF and involvement by security-force members, should have informed the assessment of whether the applicant’s account could have happened. The judgment said this requirement did not mean the allegations had to be accepted as credible.
The court also found a fundamental error of fact in the tribunal’s treatment of the applicant’s account of passing information between the parties. The tribunal adopted a presenting officer’s assertion that she had changed her account at the hearing. But the questionnaire and interview record showed that she had described passing information in both directions. The High Court said the error was central to the finding that she belonged to neither party and invalidated the tribunal’s decision.
The High Court also allowed the applicant to amend her grounds of challenge at the hearing, concluding that the amendments elaborated on the existing case and caused no prejudice to the respondents. The judge’s provisional view was that the applicant should recover her costs. Parties wishing to argue for a different form of order were directed to file written submissions by 1 February 2023.