Facts:
The first applicant and her husband were Chinese nationals. They claimed asylum in the State and argued that they were at risk of persecution in China because they infringed the country’s one child policy. They said that they had had a son in 1998, but secretly, because they were not legally entitled to marry. They subsequently married and the wife became pregnant again and the family planning commissioner tasked with enforcing the family planning rules informed them that the child had to be aborted. They went into hiding and a second son was ultimately born to them. Subsequently, the wife was forcibly taken to hospital and permanently sterilised. They were also charged in connection with their infringement of the family planning rules and fined. The family planning enforcers returned later and sought to sterilise the husband. The couple fled, but they were unable to register with the authorities in the city to which they relocated without the required documentation and were unable to return to the husband’s area to procure it. They subsequently left China and arrived in the State. They claimed asylum only when they came to the attention of the Gardai. In the meantime, they claimed that an unsuccessful attempt had been made to regularise their position in the United Kingdom. In fact, that had entailed the making of an application for asylum, though they professed ignorance of that. They claimed that the Chinese authorities would make examples of them by reason of their early marriage and early childbirth; that they would be exposed to widespread negative publicity; that the husband would be forcibly sterilised; and that their children would be adversely affected.
The Refugee Applications Commissioner made negative recommendations on their application for asylum. They appealed unsuccessfully to the Refugee Appeals Tribunal.
They sought to quash the Tribunal’s decision. They argued that because they had a second child in breach of China’s one-child policy, they could be seen as part of a particular social group, namely people who had had two or more children in contravention of Chinese law, and that they would be persecuted as a result. They relied on reg. 10 of the EC (Eligibility for Protection) Regulations 2006, which provided that:-
“(1) A protection decision-maker shall take the following into account when assessing the reasons for persecution –
(d) a group shall be considered to form a particular social group where in particular—
(i) members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, or
(ii) that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society” (emphasis added).
They also relied upon various caselaw from the English, Australian and Canadian jurisdictions which supported their argument that they formed a particular social group.
Reasoning:
The court quashed the decision. It noted that regulation 10 of the Regulations of 2006 implemented Article 10 of Directive 2004/83/EC (“the Qualification Directive”), and that the wording of Article 10 and regulation 10 of the Regulations of 2006 was identical, save that in the Directive the word “and” is placed between sub-article 10(d)(i) and (ii) whereas in the Regulations of 2006 there is a disjunctive “or” between the two sub-regulations, on foot of which it considered it arguable that the applicant only has to satisfy one of the specific criteria in regulation 10(1)(d).
Having considered the arguments of the parties, the court held that it was arguable that the applicant could be seen as being part of a particular social group, defined as people who, contrary to the one child policy in China, had more than one child without permission. Their shared characteristic was that they were parents of more than one child born in China without official permission, and it could not be changed by them. On foot of that, they arguably faced persecution in the form of forced sterilisation, large fines, loss of employment, and discriminatory treatment in relation to such matters as medical and educational benefits.
It noted that the applicant had submitted a large amount of country of origin information both to the Commissioner and the Tribunal. However, the court noted that the Tribunal appeared to have had regard to one piece of country information which dealt with the province to which the couple claimed to have fled. The court considered that the remainder of the country information was ignored by the Tribunal, and that it was necessary to refer the matter back to the Tribunal for further consideration of the applicant’s claim in light of the all the documentation submitted, in the course of which the Tribunal would have to reconsider whether the applicant and her husband were refugees owing to the fact that they had a well-founded fear of persecution by reason of their membership of a particular social group.
The court noted that a number of adverse credibility findings had been made against the applicant and her husband, including the fact that he did not know how much of the fines levied on him remained unpaid; that were unable to provide much information about their journey to Ireland; that the applicant claimed to be unaware of having claimed asylum in the United Kingdom; and that they had not given a satisfactory explanation for only claiming asylum after they had spent five years in Ireland. The court considered that the making of the findings was within the Tribunal’s jurisdiction. In its view, however, the findings related to peripheral aspects of their claim. The core of their claim, on the other hand, was supported by specific documentation.
Decision:
The court therefore quashed the Tribunal’s decision.
