The applicant was a child who applied for asylum on the basis of a well-founded fear of persecution if returned to Serbia on the basis of his Ashkali ethnicity. His application was rejected at first instance by the Refugee Applications Commissioner and on appeal to the Refugee Appeals Tribunal. Although it was accepted that the applicant would in all likelihood face discrimination if returned to Serbia, the Tribunal was not persuaded on the evidence that such discrimination would rise to the level of persecution. The fact that the applicant might not receive a full or even basic education was held to be insufficient to conclude that the statutory persecution requirement was met. The applicant sought to quash the Tribunal decision claiming that the Tribunal erred in law by misinterpreting the concept of persecution under s.2 of the Refugee Act 1996 and in failing to recognise that discrimination amounted to persecution if it led to consequences of a substantially prejudicial nature for the person concerned, such as serious restrictions on access to normally available education facilities.
The High Court (Hogan J.) held that the Tribunal erred in its view as to what constitutes persecution in that there was a sufficient level of educational discrimination established to amount to persecution for the purposes of the statutory threshold in accordance with the s.2 of the Refugee Act 1996. The High Court also granted the Tribunal a certificate of leave to appeal pursuant to s.5 of the Illegal Immigrants (Trafficking) Act 2000 on the following grounds:
“(a) Whether discrimination against the group to which a child belongs giving rise to a risk that the child would not get a basic education if returned to his country of origin must be found to amount to persecution within the meaning of s.2 of the Refugee Act, 1996?
(b) Whether the High Court on an application for judicial review can substitute its own assessment of whether the contended for infringements of basic civil liberties amounted to “persecution” within the meaning of s.2 of the 1996 Act for that of the Tribunal Member?
(c) Whether the potential denial of a basic education is capable of constituting its sufficiently severe violation of basic human rights so as to amount in law to persecution?”
The Supreme Court allowed the Tribunal’s appeal, noting that the court’s function in judicial review proceedings was to determine whether on the materials before the decision-maker, only one decision in respect of a particular fact would have been lawfully open to the decision-maker concerned. In such case, any other view of the facts would necessarily be “irrational” in the sense in which that term had come to be used in judicial review. It was not for the court to substitute its own view of that assessment for that of the decision-maker. Clarke J. stated that there was an added obligation of care on decision-makers who were charged with decisions which, if wrongly made, could have very serious consequences for the rights of any individuals affected. The Supreme Court accepted that, at the level of general principle, it was possible that a sufficiently severe and persistent denial, by virtue of discrimination, of important social rights, including the right to access normally available education facilities, could amount to persecution within the meaning of s. 2 of the Refugee Act 1996 for the purposes of refugee status, especially where that discrimination was carried out by the State or condoned by the State by reason of lack of appropriate action. However, the court stated that an overall assessment of the elements of discrimination asserted was required in order to determine whether they cumulatively could be said to be sufficiently serious so as to amount to persecution. That assessment involved a consideration, amongst other things, of the range of rights in respect of which discrimination could be shown to apply, the importance of those rights, the extent of the discrimination, its persistence, the extent to which the State concerned could be said to have itself carried out the relevant discrimination, or the extent to which it could properly be determined that the State in question had condoned or materially contributed to the discrimination concerned by inaction. The assessment involved a consideration of the cumulative effect of all such matters on persons of the relevant group.
Appeal allowed; challenge to Refugee Appeals Tribunal decision dismissed.