GH (a minor) v Refugee Appeals Tribunal and Others

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Respondent/Defendant:Refugee Appeals Tribunal, Minister for Justice and Equality, Attorney General and Ireland
Court/s:High Court
Citation/s:[2015] IEHC 583
Nature of Proceedings:Judicial Review
Judgment Date/s:17 Sep 2015
Judge:Eagar J.
Category:Refugee Law
Keywords:Child, Minor, Persecution, Refugee
Country of Origin:Pakistan
URL:https://www.courts.ie/acc/alfresco/c4dc03f2-1a9f-4efb-8c7f-3c6b9797f7cb/2015_IEHC_583_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant and her mother arrived in Ireland from Pakistan and claimed asylum on the basis of fear of persecution as Ahmadi Muslims. Their applications were unsuccessful before the Refugee Applications Commissioner and the Refugee Appeals Tribunal. The applicant, who was seven years old, challenged the Tribunal’s decision, which considered her to be an “unexceptional Ahmadi” and therefore not likely to be persecuted if returned to Pakistan.

The High Court quashed the Tribunal’s decision.

Reasoning:
It noted that the appeal to the Tribunal was de novo and that the first relevant principle applicable to an application by a minor applicant was that the best interests of the child were to be the primary consideration for the Commissioner and for the Refugee Appeals Tribunal. In minor applicant cases, the Tribunal had to assume a greater share of the burden of proof, as opposed to the requirement in adult asylum claims that the burden of proof remained with the applicant at all times. Another relevant principle was that actions which might not constitute persecution when experienced by an adult, could satisfy the persecution element of the refugee definition when experienced by a child, minors being necessarily more vulnerable to the effects of torture and other forms of serious harm, in particular physical and psychological harm. The “best interests” principle required that the harm feared upon return be assessed from the child’s perspective.

Taking those principles into account, it held that the Tribunal failed properly to analyse the country of origin information in relation to the treatment of Ahmadis, both by organisations and by the Pakistani state, which was responsible for prosecuting Ahmadis for blasphemy.

It also noted that Article 10 of the Qualification Directive provided that Member States were to take into account, when assessing the reasons for persecution, that the concept of religion was, in particular, to include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. In its view, the descriptions in the country of origin information represented far more than mere discrimination against Ahmadis, and the Tribunal’s decision that it merely amounted to discrimination was irrational and unreasonable.

Decision:
The court quashed the Tribunal’s decision.

Principles:

When the Refugee Appeals Tribunal is hearing an appeal taken on behalf of a minor, it should assume a greater share of the burden of proof, and when considering whether feared ill-treatment constitutes persecution, it should bear in mind that a child might more easily satisfy the persecution requirement of the refugee definition than an adult.

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