The Applicant claimed to be a national of Togo who had been tortured as a result of his political activities. The Refugee Applications Commissioner recommended that he not be granted refugee status and this recommendation was affirmed by the Refugee Appeals Tribunal (RAT). The Applicant sought leave to judicially review the decision of the RAT on the grounds, inter alia, that a medical report he had submitted had not been given due weight, that country of origin information he had submitted had not been considered, that the decision was tainted by speculation as to his method of travel to Ireland and that the Tribunal had erred in finding that it had no jurisdiction to consider whether he would be persecuted as a failed asylum seeker if returned to Togo.
The Applicant was granted leave to seek judicial review on the sole ground that the Tribunal had erred in jurisdiction and in law in concluding that the issue of refoulement (forced return to face persecution) is not within the remit of the Tribunal in circumstances where submissions were made on behalf of the Applicant that he would be at risk of persecution if he was returned to Togo as a failed asylum seeker.
The High Court held that the RAT’s statement that refoulement was not within its remit was not an accurate reflection of the general jurisdiction of the RAT. The question for the Court then was whether, in the circumstances of the Applicant’s case, his asserted fear of persecution was one which – if found to be credible – could bring him within the definition of a refugee in section 2 of the Refugee Act, 1996 and whether it was therefore a matter that required consideration by the RAT or whether the asserted fear would more properly be a matter to be raised in an application for subsidiary protection and/or an application for humanitarian leave to remain temporarily in the State.
The Court was not satisfied that failed asylum seekers per se are members of a particular social group or that they necessarily hold any particular political opinions. The Court felt, however, that where a clear Convention nexus is shown, a person’s fear of persecution by virtue of his or her status as a failed asylum seeker might be capable of bringing him or her within the definition of refugee. The Court gave examples of situations where a particular political opinion might be imputed to failed asylum seekers: where there had been evasion of military service or a lack of loyalty to the ruling party.
The Court was conscious that there was scope for asylum seekers to abuse the statutory asylum process by making an initial unfounded application for asylum and subsequently claiming a fear of persecution as a failed asylum seeker. It held that it was reasonable that the making of a self-serving, unfounded initial claim could be taken into account and accorded some weight by the decision makers. The Court was also satisfied that cogent, authoritative and objective country of origin information that failed asylum seekers were targeted for persecution in the person’s country of origin and demonstrating a Convention nexus would have to be shown.
In the present case, the Court found it to be significant that the RAT had made significant adverse credibility findings against the Applicant. The Court held that Tribunal, at best, accepted that the Applicant was a low-level opposition supporter from Togo. In those circumstances, the Court found that the Applicant would have to put before the Tribunal objective and cogent country of origin information to the effect that all failed asylum seekers returned to Togo are at real risk of being persecuted for a Convention reason. The Court considered the country of origin information which had been submitted on behalf of the Applicant and found that it was not satisfied that there was sufficiently cogent evidence that persons in the situation of the Applicant, that is failed asylum seekers who are not known, active opposition supported, are at real risk of persecution if return to Togo for a Convention reason.
The Court found that while the Tribunal had made a technical error as to its jurisdiction to consider refoulement, it would exercise its discretion and refuse to grant an order of certiorari quashing the Tribunal’s decision as it was satisfied that nothing flowed from the Tribunal’s error: the Applicant had not suffered any prejudice or injustice and quashing the decision would have no beneficial effect.
