JMO v Refugee Applications Commissioner and the Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Applications Commissioner and the Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2014] IEHC 467
Nature of Proceedings:Judicial Review
Judgment Date/s:22 Aug 2014
Judge:McDermott J.
Category:Refugee Law
Keywords:Asylum, Asylum Seeker (Secondary Movement of), Country of Origin Information, Dublin Regulation, Family Member, Persecution, Refugee, Transfer Order
Country of Origin:Russia
URL:https://www.courts.ie/acc/alfresco/a6c83799-e4f3-4e11-a887-3fe619ed2941/2014_IEHC_467_1.pdf/pdf#view=fitH
Geographic Focus:Ireland
Facts:
The applicant was a Russian national, who claimed to be of Chechen ethnicity. He applied for asylum in the State on that account and gave a history which was untrue in that he failed to disclose he had applied for asylum in Slovakia. This was brought to his attention by the Refugee Applications Commissioner and he made representations as to why, notwithstanding the entitlement of the Irish authorities to ask their Slovak counterparts to take him back under the Dublin II Regulation, his application should be dealt with in the State. His representations were considered but the Minister for Justice decided to make a transfer order against him. He unsuccessfully issued judicial review proceedings to quash it.
Reasoning:
The applicant contended that the Commissioner and the Minister (the respondents) had erred in transferring his application to Slovakia. He pointed to what he said was the fact that the Slovakian authorities did not grant asylum to persons in his position and that he was in danger of chain refoulement to Russia. He also claimed that there was a real risk to his life and/or health if he was transferred to Slovakia. He contended further that he was ill and dependent on a relative, and that Article 15(2) of the Regulation was thereby applicable.
The court pointed out the parameters of judicial review. It was not a court of appeal. Only if the respondents acted irrationally, unreasonably or disproportionately could it interfere by way of judicial review.
It noted that the Commissioner had addressed the complaint made by the applicant concerning the low success rate of applicants for asylum from Russia in Slovakia and had not refused to consider the evidence produced on that matter. The Commissioner had been satisfied that local remedies were available before the Slovakian courts and the European Court of Human Rights in respect of any violations of the Convention or breaches of European Union law. The Commissioner also ascertained that no question regarding Slovak practices or procedures had been circulated by the European Commission to other Member States or by the UNHCR. There was little or no evidence to support the proposition that the Slovak authorities had failed fundamentally to apply European law in respect of asylum applications or discriminated against Chechens and/or Russians making such applications. The evidence available fell well short of that which might give rise to the exercise of a derogation under Article 3(2) of the Regulation.
The court held that the same care was taken by the Commissioner in his consideration of the issue of non-refoulement, and that he had satisfied himself, having consulted the same sources, that no instance of unlawful refoulement had been reported from Slovakia. There was no evidence to suggest that the Slovak republic would not abide by the obligations of the Geneva Convention as applied under European Union law, or in respect of any of its other international obligations.
The court also pointed out that, in the Commissioner’s assessment, there had been reference to relevant caselaw of the European Court of Human Rights, which informed the assessment made by the respondents that there would be no risk to the applicant under article 3 ECHR if he were returned to Russia by the Slovakian authorities, and that his claim for asylum would be adequately assessed and that he would not be under threat of chain refoulement. The principles applied in the assessment were, it held, compliant with those set out in relevant caselaw of the European Court.
It held that there was no real evidence to support the proposition that anything approaching systemic deficiencies existed in the asylum system in Slovakia. The court noted that caselaw of the Court of Justice of the European Union showed that the provisions of EU law precluded the application of a conclusive presumption that the Member State to which an applicant might be returned observed the fundamental rights of the European Union. There was a rebuttable presumption that the treatment of asylum seekers in all Member States complied with the requirements of the Charter, the Geneva Convention and the European Convention on Human Rights. Not every infringement of the various Directives precluded the transfer of an applicant. The applicant failed to rebut the presumption and to show that he faced a “real risk” of being subject to a breach of his rights if returned to Slovakia.
The court noted that applicant claimed that he was suffering from a serious illness and was dependent on the assistance of his nephew who was resident in Ireland. He submitted that the respondents failed to consider adequately or at all the provisions of Article 15 of the Dublin II Regulation, he said, allowed them to deal with his application for asylum by reference to the presence of a family member in the State.
The court held, however, that the applicant did not qualify as a family member of his nephew or was dependent on his assistance within the meaning of the Article 15(2). It noted that the Commissioner had also considered the application of the ECHR and was satisfied that the provisions of Article 15 of the Dublin II Regulation were not at variance with the provisions of article 8 ECHR and that his findings were correct.
The court also rejected an argument that adverse credibility findings had been made against the applicant in breach of fair procedures.
Decision
The court accordingly concluded that the applicant had not established that the decision to return him to Slovakia was flawed on the grounds advanced. It therefore dismissed his proceedings and upheld the respondents’ decisions.

Facts:

The applicant was a Russian national, who claimed to be of Chechen ethnicity. He applied for asylum in Ireland on that account and gave a history which was untrue in that he failed to disclose he had applied for asylum in Slovakia. This was brought to his attention by the Refugee Applications Commissioner and he made representations as to why, notwithstanding the entitlement of the Irish authorities to ask their Slovak counterparts to take him back under the Dublin II Regulation, his application should be dealt with in the State. His representations were considered but the Minister for Justice decided to make a transfer order against him. He unsuccessfully issued judicial review proceedings to quash it.

Reasoning:

The applicant contended that the Commissioner and the Minister (the respondents) had erred in transferring his application to Slovakia. He pointed to what he said was the fact that the Slovakian authorities did not grant asylum to persons in his position and that he was in danger of chain refoulement to Russia. He also claimed that there was a real risk to his life and/or health if he was transferred to Slovakia. He contended further that he was ill and dependent on a relative, and that Article 15(2) of the Regulation was thereby applicable.

The court pointed out the parameters of judicial review. It was not a court of appeal. Only if the respondents acted irrationally, unreasonably or disproportionately could it interfere by way of judicial review.

It noted that the Commissioner had addressed the complaint made by the applicant concerning the low success rate of applicants for asylum from Russia in Slovakia and had not refused to consider the evidence produced on that matter. The Commissioner had been satisfied that local remedies were available before the Slovakian courts and the European Court of Human Rights in respect of any violations of the Convention or breaches of European Union law. The Commissioner also ascertained that no question regarding Slovak practices or procedures had been circulated by the European Commission to other Member States or by the UNHCR. There was little or no evidence to support the proposition that the Slovak authorities had failed fundamentally to apply European law in respect of asylum applications or discriminated against Chechens and/or Russians making such applications. The evidence available fell well short of that which might give rise to the exercise of a derogation under Article 3(2) of the Regulation.

The court held that the same care was taken by the Commissioner in his consideration of the issue of non-refoulement, and that he had satisfied himself, having consulted the same sources, that no instance of unlawful refoulement had been reported from Slovakia. There was no evidence to suggest that the Slovak republic would not abide by the obligations of the Geneva Convention as applied under European Union law, or in respect of any of its other international obligations.

The court also pointed out that, in the Commissioner’s assessment, there had been reference to relevant caselaw of the European Court of Human Rights, which informed the assessment made by the respondents that there would be no risk to the applicant under article 3 ECHR if he were returned to Russia by the Slovakian authorities, and that his claim for asylum would be adequately assessed and that he would not be under threat of chain refoulement. The principles applied in the assessment were, it held, compliant with those set out in relevant caselaw of the European Court.

It held that there was no real evidence to support the proposition that anything approaching systemic deficiencies existed in the asylum system in Slovakia. The court noted that caselaw of the Court of Justice of the European Union showed that the provisions of EU law precluded the application of a conclusive presumption that the Member State to which an applicant might be returned observed the fundamental rights of the European Union. There was a rebuttable presumption that the treatment of asylum seekers in all Member States complied with the requirements of the Charter, the Geneva Convention and the European Convention on Human Rights. Not every infringement of the various Directives precluded the transfer of an applicant. The applicant failed to rebut the presumption and to show that he faced a “real risk” of being subject to a breach of his rights if returned to Slovakia.

The court noted that applicant claimed that he was suffering from a serious illness and was dependent on the assistance of his nephew who was resident in Ireland. He submitted that the respondents failed to consider adequately or at all the provisions of Article 15 of the Dublin II Regulation, he said, allowed them to deal with his application for asylum by reference to the presence of a family member in the State.The court held, however, that the applicant did not qualify as a family member of his nephew or was dependent on his assistance within the meaning of the Article 15(2). It noted that the Commissioner had also considered the application of the ECHR and was satisfied that the provisions of Article 15 of the Dublin II Regulation were not at variance with the provisions of article 8 ECHR and that his findings were correct.The court also rejected an argument that adverse credibility findings had been made against the applicant in breach of fair procedures.

Decision:

The court accordingly concluded that the applicant had not established that the decision to return him to Slovakia was flawed on the grounds advanced. It therefore dismissed his proceedings and upheld the respondents’ decisions.

Principles:

A rebuttable presumption exists that the treatment of asylum seekers in all EU Member States complies with the requirements of the Charter of Fundamental Rights, the Geneva Convention on the Status of Refugees and the European Convention on Human Rights. Not every infringement of relevant Directives will preclude the transfer of an applicant under the Dublin Regulation. In order to rebut the presumption, cogent evidence must be shown of a “real risk” of being subject to a breach of rights if transferred to a receiving country under the Dublin Regulation. 

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