GB v Refugee Appeals Tribunal

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Respondent/Defendant:Refugee Appeals Tribunal
Court/s:High Court
Citation/s:[2016] IEHC 517
Nature of Proceedings:Judicial Review
Judgment Date/s:29 Jul 2016
Judge:Humphreys R.
Category:Refugee Law
Keywords:Asylum, Persecution, Persecution (Acts of), Refugee, Refugee (Convention), Refugee Law
Country of Origin:Moldova
URL:https://www.courts.ie/acc/alfresco/1ed6199f-45a8-4fc9-9fb0-387d2cdfd1b3/2016_IEHC_517_1.pdf/pdf#view=fitH

Facts:

The applicant was a member of the social liberal party in Moldova, which was an opposition party to the ruling communist party. The applicant was elected mayor of his area. In that capacity he was accused of corruption in 2004 as part of a series of measures which were taken against opposition politicians in Moldova. He was provisionally suspended from his position as mayor and replaced by a member of the communist party. He was then prosecuted for recording false data in official documents. He challenged the prosecution on the basis that he had not engaged in any criminal activity. However, his suspension was affirmed by court order in 2004, at a hearing at which he and his lawyer were not present. An appeal against that decision was made and refused on the grounds that only the prosecutor could appeal a decision of an examining magistrate. The applicant submitted complaints to the general prosecutor and also the Council of Europe, but ultimately he left Moldova in 2006 and arrived in Ireland where he claimed asylum. A Moldovan court subsequently issued a warrant for the applicant’s arrest and declared him wanted internationally. The applicant was charged and convicted in his absence and sentenced to a six-year term of imprisonment.

The applicant’s claim for asylum was rejected by both the Refugee Applications Commissioner and the Refugee Appeals Tribunal and he subsequently challenged the decision of the Tribunal in judicial review proceedings. The High Court (Humphreys J.)  described the central issue arising from the Tribunal’s decision as “when does prosecution become persecution?”. The court referred to reg.9 of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006), reflecting art.9 of the Qualification Directive 2004/83/EC, and held that there was an essentially three-part test for determining when prosecution becomes persecution. Firstly, the court must ask itself pursuant to art. 9(2) whether the act alleged to have occurred comes within the specific types of persecution enumerated – in this case whether prosecution is “disproportionate or discriminatory”. If so, this is a matter to which the court can have regard, although satisfying this test is neither, in itself necessary, nor automatically sufficient, for a finding of persecution.  The second limb of the test was whether there was, in essence, a “severe violation of basic human rights” amounting to persecution as defined by art. 9(1)(a). In determining this, the decision maker should have regard to a holistic view of the circumstances in the country concerned in terms of its legal system overall.  The third leg of the test is, even if art.9(1)(a) was not satisfied, whether there was an accumulation of measures such as to affect an individual in a similar manner, in accordance with art.9(1)(b).

Reasoning:

The High Court was not satisfied that the decision of the Tribunal applied this three part test. Humphreys J. stated that given that the prosecution of the applicant was discriminatory, it was unclear why that did not lead to a finding that he was being persecuted. Furthermore, the High Court noted there was no analysis of whether the applicant had  suffered a severe violation of his basic human rights as required by reg. 9(1). Humphreys J. noted that the analysis of the tribunal member came to a somewhat abrupt conclusion at in her decision by making a series of findings, some of which were favourable to the applicant and some of which were unfavourable. At the end of the listing of these factors, it was simply asserted by the Tribunal that the prosecution did not amount to persecution. Humphreys J. noted that there was no clear reason articulated or even discernible as to why this was so, or why the conclusions unfavourable to the applicant rectified and outweighed those favourable to him. Under those circumstances Humphreys J. held that the tribunal did not in fact apply the correct test, and also held that there was a lack of clear reasoning in the decision. Humphreys J. also held that the Tribunal’s finding that due process on an appeal rectified a discriminatory prosecution was irrational, and that such a matter could only be rectified by acquittal on appeal. Humphreys J. concluded that the discriminatory prosecution of the applicant on political grounds and the imposition of a six-year sentence arising by virtue of his membership of an opposition party was clearly a severe violation of his human rights for Convention reasons and therefore quashed the decision of the Tribunal.

Decision:

Refusal of refugee status quashed.

Principles:

The decision in GB is significant as it sets out the three part test that must be applied by protection decision-makers in deciding whether prosecution amounts to persecution. The decision also finds that due process on an appeal cannot remedy the fact that the initial prosecution was discriminatory. 

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