AVB v Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General / XBG and AB1 (a minor) and AB2 (a minor) v Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General

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Respondent/Defendant:Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2015] IEHC 13
Nature of Proceedings:Judicial Review
Judgment Date/s:14 Jan 2015
Judge:Stewart J.
Category:Refugee Law
Keywords:Asylum, Asylum (Application for), Minor, Persecution, Refugee, Refugee Law
Country of Origin:Albania / Kosovo
URL:https://www.courts.ie/acc/alfresco/932620b4-4d8d-48f7-b750-49ccbfe63ddf/2015_IEHC_13_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicants were a family unit composed of a father, a mother and their two children from Kosovo. They were all ethnic Albanians. They claimed asylum in Ireland, stating that they feared persecution arising out of a blood feud. The father’s brother was alleged to have killed his brother-in-law in 2009. The brother’s whereabouts were unknown and, as a result, the threat of revenge had devolved on him and male members of his family. He said that his own father had attempted to reconcile the families by way of mediation, but this had been declined by the murdered man’s family. As a result, his father and his family had to go into confinement, as to carry on normal life outdoors could result in their being killed. The applicant family left Kosovo and travelled to Ireland.

Having investigated their claim, the Refugee Applications Commissioner recommended that they not be declared refugees. The applicants appealed to the Tribunal, which affirmed the Commissioner’s recommendation. The applicants challenged the Tribunal’s decision in these proceedings. The father had the benefit of an oral appeal, whilst the other members of his family did not, owing to a finding being made on their claim pursuant to s. 13(6)(a) of the Refugee Act 1996.

The Tribunal held that the applicants had no well-founded fear of persecution on the basis inter alia that they were not a social group within s.2 of the Refugee Act 1996. It held that members of a particular social group were identified by their possession of a common immutable characteristic. It referred in its decision to the decision of the House of Lords in Fornah v. Secretary for State for the Home Department [2006] UKHL 46 and to that of the English Court of Appeal in Skenderaj v. Secretary for State for the Home Department [2002] EWCA Civ 567. In the latter case, the Skenderaj family claimed to be embroiled in a blood feud, but the Court of Appeal held that they were not regarded as a distinct group by Albanian society any more than other families in the country, and that it would be artificial to treat them as such.

The applicants asserted that the Tribunal had erred in law in holding that they were not members of a particular social group. They contended that the Tribunal had misunderstood and misapplied the decision of the House of Lords in Fornah and that the relevant part of Skenderaj had been overruled by Fornah. The Tribunal took issue with this.

The court decided to restrict its deliberations to that aspect of the case, holding that if the applicants succeeded on the point, it would determine the case. Having done so, it quashed the Tribunal’s decision.

Reasoning:
It noted that in Fornah it had been held that the family was a socially cognisable group in society and that persecution of a person simply because he was a member of the same family as someone else was arbitrary and capricious, and just as pernicious, as persecution on any other Convention ground. As a social group, the family fell naturally into the category of cases to which the Convention extended its protection.

The court also noted a British decision relied upon by the applicants, namely EH (blood feuds) Albania CG [2012] UKUT 00348 (IAC) where it was held as settled on the basis of the decision in Fornah that members of families or clans which were embroiled in blood feuds in Albania were capable of constituting a particular social group, and that the Refugee Convention would be engaged where there existed a reasonable degree of likelihood that members of a particular family would be at risk of serious harm on return, subject to the availability of internal relocation or state protection.

The court observed that whilst the British tribunal decision was not binding on it, it was persuasive and it had correctly applied and interpreted the decision in Fornah. It accordingly held that the Tribunal had fallen into error in finding that feuds amongst family members did not have a Convention nexus and in misapplying Fornah. The Tribunal had, it held, therefore erred in holding that the applicants did not constitute members of a particular social group, namely members of a family which was involved in a blood feud with the family of the father applicant’s brother-in-law.

Decision:
The court therefore granted leave and, the matter being telescoped, decided to quash the Tribunal’s decision.

Principles:

A family which is threatened with retaliation as part of a blood feud is capable of constituting a “particular social group” for the purpose of the definition of a refugee as set out in s. 2 of the Refugee Act 1996.

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