The first applicant in this case was a recognised refugee in the Czech Republic since 1998. He subsequently arrived in Ireland and applied for a declaration of refugee status. He stated that he had refugee status in the Czech Republic in 1998 but had subsequently been mistreated by that state or by non-state actors, including skinheads, acting with its tacit approval. The second applicant was in a similar position.
Their applications were not accepted for processing by the Refugee Applications Commissioner pursuant to Section 17(4) of the Refugee Act 1996. That sub-section provides that the Minister for Justice:-
“shall not give a declaration to a refugee who has been recognised as a refugee under the Geneva Convention by a state other than the State and who has been granted asylum in that state and whose reason for leaving or not returning to that state and for seeking a declaration in the State does not relate to a fear of persecution in that state.”
In the light of this, the Commissioner informed the applicants that no purpose would be served by investigating their claims, and that, accordingly, their applications were not being admitted for processing.
The applicants unsuccessfully issued proceedings in the High Court to set aside the refusal to admit their asylum applications for processing.
The High Court held that, based on previous case law where similar issues had arisen, a number of matters had to be considered in making a decision under Section 17(4) of the Act of 1996, namely:-
- an applicant who had been granted asylum in another country was not entitled to a declaration of asylum simply on the basis of a bare assertion of “fear of persecution”;
- if there were no facts to support a claim of fear of persecution at all, s. 17(4) precluded the granting of refugee status;
- if the applicant had established a reasonable possibility of a risk of persecution if returned to the asylum granting country, it was incumbent on the Refugee Applications Commissioner to investigate the credibility of the claim;
- the applicant had to demonstrate a reasonable possibility that “generally” the state in question was either not disposed to granting reasonable protection to a person in “fear of persecution” or was not in a position to do so; and
- the applicant also had to be able to demonstrate as part of his claim that he had made an attempt to invoke the protection of the host state in an effort to procure protection, especially if the state conferring refugee status was a member of the European Union bound by the Charter of Fundamental Rights, a signatory to the European Convention on Human Rights and Fundamental Freedoms, and subject to the jurisdiction of the European Court of Justice and the European Court of Human Rights.
The High Court held that it was satisfied that the evidence of the applicants of their experiences in the Czech Republic in dealing with officials of the Czech State did not support any allegation of discrimination against them on the basis of race. On the contrary, they arrived from their respective countries of origin and claimed international protection which was granted to them by the Czech authorities following due process, and full compliance with Czech State’s international obligations. Following the granting of refugee status to the applicants, they were given accommodation, of which they availed, and financial support during the course of their stay. They were provided with training opportunities and language courses in order to enhance their prospects of employment. Both were assisted by a non-government agency involved in the integration of refugees. When proceedings were brought against them in relation to their eviction, they had the right to be legally represented and were so represented for a time until they chose to discharge their legal adviser. Proceedings taken against them were adjourned from time to time to enable them to attend court and deal with them. They availed of the opportunity to present grievances to state officials from time to time. They were given travel documentation pursuant to the Geneva Convention which they used on one occasion to travel to Geneva to obtain help from the UNHCR, which intervened on their behalf, following which they returned to the Czech Republic. On their own accounts, it held that they exercised the right to free association in that they founded an association to assist refugees and asylum seekers, and freely exercised the right to protest publicly about their grievances against the Czech authorities. They remained in the Czech Republic for many years and did not seek international protection in the form of asylum on any of their trips to Germany, Switzerland or France.
It noted that the applicants alleged that they had been assaulted by “skinheads” and threatened by Czech officials that they should leave the country, and that they ascribed their difficulties with accommodation to racial discrimination. However, the court held that that was an assertion which was never taken beyond the level of subjective belief. It held that there was no evidence before the Commissioner or the court that the applicants made any attempt to take legal action against any of the state authorities or officials seeking redress in respect of racial discrimination or any other wrongs allegedly committed against them. The main emphasis in the description of events furnished by the applicants was on accommodation problems.
The court also took judicial notice of the fact that the Czech Republic was a member of the European Union and subject to the laws and treaties of the Union, the Charter of Fundamental Rights and the jurisdiction of the European Court of Justice. It was also a member of the Council of Europe, a signatory to the European Convention on Human Rights and Fundamental Freedoms, and subject to the jurisdiction of the European Court of Human Rights. The court held that there was no evidence that a reasonable degree of protection was unavailable to the applicants to secure their legal rights (including a right not to be discriminated against) under the laws of the Czech Republic, the European Union, or the European Convention on Human Rights and Fundamental Freedoms.
It held that there had been no real attempt by the applicants to avail of state protection in the Czech Republic against the perceived wrongs they have suffered, or to provide a reasonable explanation for failing to do so. It was satisfied that much of the evidence advanced by the applicants actually supported the proposition that the Czech authorities had endeavoured to honour their obligations to them as refugees.