Updates on Attacking Credibility Finding in Asylum Cases: K (Zimbabwe) v IPAT [2023] IEHC 6

Credibility of international protection applicants must be determined after consideration of country of origin information says High Court in K. (Zimbabwe) -v- IPAT and Minister for Justice [2023] IEHC 6

The recent decision of Mr Justice Garrett Simons of the High Court in K. (Zimbabwe) -v- IPAT and Minister for Justice clarifies how the International Protection Appeals Tribunal must consider country of origin information in determining the credibility of applicants for international protection.  The decision emphasises that the Appeals Tribunal will have erred in law if it makes findings of fact about the applicant’s credibility before scrutinising relevant country of origin information which may support the applicant’s narrative of events.

Factual Background

The applicant in this case, a Zimbabwean national, made an application for refugee status and subsidiary protection in Ireland in May 2019 on the basis of political persecution.  The applicant claimed that her life was at risk from the main two political parties in Zimbabwe, namely the Zimbabwe African National Union – Patriotic Front (ZANU-PF) and the Movement for Democratic Change (MDC).  The applicant stated that she was an active MDC campaigner in her area but that she was coerced by ZANU-PF members into joining ZANU-PF and to spy on the MDC.  On one occasion, the applicant asserted that she informed a local MDC branch of a ZANU-PF plan to burn down the houses of several MDC members.  The applicant stated that when ZANU-PF members found out that she had tipped off MDC members about this arson plan, she was subject to torture, physical and sexual abuse by ZANU-PF members.  The applicant stated that her life was in danger from both ZANU-PF and the MDC as both parties discovered that she had been passing information about each party to the other party.  The Applicant fled Zimbabwe for Ireland, fearing for her life.

Decisions of the IPO and the IPAT

The International Protection Office (IPO) refused the applicant refugee status and subsidiary protection following her interview with the IPO.  The Presiding Officer in this case based their decision on its finding that aspects of the applicant’s narrative lacked credibility.  This included that it was not credible for the applicant to have informed members of the MDC of the planned arson attack, knowing the risks that she would face as a result from ZANU-PF members.

On appeal, the International Protection Appeals Tribunal (IPAT) upheld the decision of the IPO to refuse the applicant refugee status and subsidiary protection.  The basis of the IPAT’s decision was that the applicant’s narrative of events lacked credibility.  In making its decision, the Appeals Tribunal reached findings of fact in relation to the applicant’s narrative of events before considering relevant country of origin information.

Judicial Review Proceedings

The applicant sought judicial review proceedings in relation to the IPAT’s decision, particularly in relation to whether the Appeals Tribunal erred in its approach to considering country of origin information and whether it made a fundamental error of fact in assessing the applicant’s credibility.

In his decision, Mr Justice Simons of the High Court stated that the Appeals Tribunal identified supposed inconsistencies in the applicant’s narrative of events.  The Tribunal then relied on these supposed inconsistencies to make findings of fact adverse to the applicant as follows:

1. The IPAT found that the applicant was not a member of the MDC. This finding was based on, inter alia, earlier conclusions that the applicant was inconsistent regarding the date she joined the MDC and that she was inconsistent regarding which political party she passed information to.
2. The IPAT found that the applicant was not a member of ZANU-PF. This finding was based on, inter alia, earlier conclusions that the applicant was inconsistent regarding who approached her to join ZANU-PF and that she was inconsistent regarding details of the planned arson attack on homes of MDC members.
3. The IPAT found that the applicant was not targeted by either ZANU-PF or the MDC based on inconsistencies in her account of being assaulted during the course of these events.

Mr Justice Simons stated that the Appeals Tribunal made findings of fact about the applicant’s narrative of events before considering relevant country of origin information.  He stated that this approach is unsatisfactory for several reasons including that the IPAT accepted the conclusions of the IPO “without any meaningful engagement.”  Mr Justice Simons stated that the Appeals Tribunal relied on supposed inconsistencies between the applicant’s narrative of events in her questionnaire, IPO interview and oral hearing before the Tribunal to discount the applicant’s narrative of events.  He stated that this approach “was done without any meaningful engagement with the explanations offered by the applicant for the supposed inconsistencies”, including in some instances, where “the applicant had asserted, correctly, that there was no inconsistency.”

Legal Framework

As per Section 28(4) of the International Protection Act 2015, the Appeals Tribunal must assess an applicant’s appeal on an individual basis, including by taking into account all relevant facts as they relate to the applicant’s country of origin.  Mr Justice Simons stated in his decision that in most cases, “country of origin information will be of use in ascertaining whether the social, political and other conditions in the country of origin are such that the events recounted, or the mistreatment claimed to have been suffered, may or may not have taken place.”

Decision of Mr Justice Simons

Applying these principles to the present case, Mr Justice Simons found that “the Appeals Tribunal deferred any consideration of the country of origin information until after it had already purported to make findings of facts adverse to the applicant.  With respect, this is to approach the matter the wrong way round.”  Mr Justice Simons stated that country of origin information including regarding the suppression of political opposition in Zimbabwe by ZANU-PF, and local levels of support for both ZANU-PF and the MDC, should have been referred to by the Appeals Tribunal before it assessed the specific assertions of the applicant.  Mr Justice Simons stated that the IPAT erred in its finding of fact that the applicant was unclear as to which party she passed information to as the applicant’s position had always been that she passed information to both parties.  He found that by considering country of origin information only after it concluded its findings of fact, the Appeals Tribunal erred in law.  Mr Justice Simons found that as the IPAT based its decision on a fundamental error of fact, that being that the applicant was inconsistent as to which political party she passed information to, the Appeals Tribunal’s decision is invalid.  The applicant’s appeal will now go before a differently constituted division of the Appeals Tribunal, which will reconsider the applicant’s appeal in accordance with the findings of the High Court in these judicial review proceedings.

Conclusion

An applicant’s credibility and relevant country of origin information play crucial roles in the IPO and the IPAT’s determination of whether an applicant for international protection should be granted refugee status or subsidiary protection.  It is critical that country of origin information, as put forward by an applicant’s legal team, is properly considered by the IPO and the IPAT.  It is also crucial that the Appeals Tribunal carefully examines findings of fact already made by the IPO at first instance.

The recent decision of Mr Justice Simons of the High Court in K. (Zimbabwe) -v- IPAT and Minister for Justice clarifies the analytical approach an applicant for international protection can expect from the International Protection Appeals Tribunal when considering their application for refugee status and subsidiary protection.  As Mr Justice Simons makes clear, the Appeals Tribunal must meaningfully engage with findings of fact made by the IPO at first instance.  The Appeals Tribunal must only make findings of fact in relation to the applicant’s credibility and personal circumstances after considering relevant country of origin information.  Otherwise, the Appeals Tribunal will have erred in law and will risk having its decision being declared invalid by the High Court.

Should you have any questions or queries arising from this blogpost or for other immigration queries, please do not hesitate to contact Stephen Kirwan of this office at stephen.kirwan@kodlyons.ie.