MM (Zimbabwe) v Chief International Protection Officer & Ors (Approved)

Factual and Procedural Background

The Applicant, a national of Zimbabwe, applied for international protection in the State on 16 September 2017. She claimed that she was married twice as a child to brothers affiliated with a political party and later entered into a lesbian relationship, which led to death threats from her family and community, prompting her flight to South Africa. An International Protection Officer (IPO) recommended on 25 April 2019 that the Applicant be refused both refugee and subsidiary protection declarations, finding her claims lacked credibility. Subsequently, on 23 May 2019, the Second Respondent refused the Applicant permission to remain in the State pursuant to statutory provisions. The Applicant was granted leave to apply for judicial review on 22 July 2019, seeking orders of Certiorari to quash the recommendation and decision refusing her protection and permission to remain.

Legal Issues Presented

1. Whether the statutory scheme requires that the IPO who makes the final determination under section 39(3) of the International Protection Act 2015 must be assigned prior to the section 35 interview.
2. Whether sections 35(12) and (13) of the 2015 Act were complied with in the preparation of the interview report.
3. Whether the decision under section 49(4) is unlawful due to reliance on an allegedly unlawful recommendation under section 39(3).
4. Whether the refusal of permission to reside in the State was unlawful for failure to provide proper reasons concerning the State’s non-refoulement obligations.
5. Whether the failure of the first Respondent to determine a core element of the Applicant’s claim—her sexual orientation—renders the decisions invalid.

Arguments of the Parties

Applicant's Arguments

• The statutory scheme mandates that a designated IPO be assigned to the Applicant’s case before the section 35 interview, who then examines the application and makes the final recommendation under section 39(3). The absence of such designation prior to the interview renders the process unlawful.
• The IPO failed to conduct a proper personal interview under section 35(13)(b), thereby breaching mandatory duties and invalidating the decision under section 49.
• The refusal decision under section 49(4) lacked proper reasoning regarding the State’s obligations under non-refoulement.
• The first Respondent failed to address a core element of the Applicant’s claim—her sexual orientation—thus invalidating the decision.
• The preparation of the section 35 report did not comply with statutory requirements, and the addendum to the report is not lawful.

Respondents' Arguments

• The 2015 Act does not require that the IPO who makes the final recommendation be assigned prior to the section 35 interview. The Act contemplates that various functions, including arranging interviews, can be carried out by different IPOs or authorised panel members except for the final recommendation.
• Section 76(2) of the 2015 Act permits authorised panel members or other IPOs to perform any IPO function except making the final recommendation, supporting the current procedural practice.
• The preparation of the section 35 report, including the addendum, complies with statutory requirements and is consistent with prior judicial decisions.
• The refusal decision under section 49(4) properly considered the non-refoulement obligations based on the findings of the section 39 report and relevant country of origin information.
• The issue of the Applicant’s sexual orientation was implicitly addressed and determined against her in the IPO’s decision, providing a first instance determination on that core element.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed statutory interpretation of the International Protection Act 2015, focusing on whether the statutory scheme requires a designated IPO to be assigned before the section 35 interview. Applying a literal interpretation and considering the Act as a whole, the Court found that the Act does not mandate such prior designation. The Court emphasized the significance of section 76(2), which authorizes panel members or different IPOs to perform IPO functions, except for the final recommendation under section 39(3). This allows flexibility in the processing of applications without compromising the independence of the IPO making the final decision.

Regarding compliance with sections 35(12) and (13), the Court held that the preparation of an addendum to the section 35 report after the interview is lawful and consistent with statutory requirements and prior judicial authority. The Court found the IPO’s process of preparing the interview record and subsequent reports compliant.

The Court rejected the Applicant’s contention that the refusal under section 49(4) was unlawful due to reliance on an unlawful recommendation, as it found the section 39(3) recommendation valid. The Court also found that the refusal decision adequately addressed the State’s non-refoulement obligations, relying on the IPO’s findings and relevant country of origin information.

On the issue of the Applicant’s sexual orientation, the Court concluded that although the IPO’s decision did not explicitly state acceptance or rejection of the Applicant’s sexual orientation, the reasoning implicitly determined the issue against the Applicant. Therefore, the Applicant had received a first instance determination on this core element.

Consequently, the Court refused the relief sought, finding no legal basis to quash the decisions challenged.

Holding and Implications

The Court’s final decision is DISMISSED.

The direct effect of this decision is that the recommendation refusing the Applicant refugee or subsidiary protection status and the subsequent refusal of permission to remain in the State stand. The Court confirmed the procedural validity of the IPO’s assignment and the interview process under the 2015 Act, clarifying statutory interpretation regarding IPO functions and the flexibility allowed by section 76(2). No new precedent altering the statutory scheme was established beyond the application of existing interpretative principles. Costs were awarded to the Respondents against the Applicant.