MA and EM (a minor) v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform, Attorney General and Ireland

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform, Attorney General and Ireland
Court/s:High Court
Citation/s:[2014] IEHC 430
Nature of Proceedings:Judicial Review
Judgment Date/s:05 Sep 2014
Judge:McDermott J.
Category:Refugee Law
Keywords:Asylum, Persecution, Refugee
Country of Origin:Azerbaijan
URL:https://www.courts.ie/acc/alfresco/9bcbbb1c-dd59-4146-8ea8-24f0c484071e/2014_IEHC_430_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:

The applicants were a mother and her son. They arrived in Ireland and claimed asylum. She claimed to be of mixed ethnicity, her father being an ethnic Armenian and her mother an Azeri. She said that they lived in the Nagorno-Karabakh region in Azerbaijan which, although it lies within the borders of the Republic of Azerbaijan, claims to be a state in its own right styled the Nagorno-Karabakh Republic. The Armenian community was the largest ethnic group in the region and a pro-Armenian movement had grown and operated there for many years. She claimed that, as Armenian influence in Nagorno-Karabakh grew, her parents’ mixed marriage was seen as contentious and attracted violence against the family. She said that her brother was murdered in 2002 and that her parents and another brother fled to Ireland and were granted refugee status.She married an Armenian that same year. She claimed that Armenian forces came to the family home seeking to establish the whereabouts of her parents. Her father-in-law was beaten and removed to hospital, and serious threats were made against them if her parents’ whereabouts were not disclosed. This prompted them to flee to Turkey, where they lived for a number of years. The applicant and her son later made their way to Ireland, the husband remaining behind because he could not afford the cost of the journey.

The applicants’ asylum application was refused by the Refugee Applications Commissioner and this was affirmed by the Refugee Appeals Tribunal on the basis of lack of credibility.

The applicants challenged the Tribunal’s decision and the High Court (Cooke J.) granted them leave to seek to quash it on the following ground:-

“The Tribunal Member erred in law by failing to examine and reach a conclusion from a forward-looking perspective on the applicants’ claim to be at continuing risk of persecution if returned to Nagorno-Karabakh due to the mother’s family background and ethnicity, having regard to country of origin information as to ongoing inter-communal conflict in the country of origin.”

Reasoning:

The court at the post-leave stage set aside the Tribunal’s decision. It noted that a number of the Tribunal’s findings were clearly predicated on the basis that the applicant was, as she claimed, an Azeri national who was a daughter of a mixed marriage between an Armenian and Azeri, and stemmed from a predominantly Armenian province of Azerbaijan, in which ethnic conflict was occurring.

As per the basis upon which leave had been granted, the applicants contended that, in deciding the case, the Tribunal had failed to consider a future risk of persecution to them if returned to Nagorno-Karabakh. They relied upon country of origin information showing a new risk of fighting amongst the ethnic groups in the province. Additionally, they claimed that since her parents had been granted refugee status on the basis of the same complaints of persecution in Nagorno-Karabakh, the decision ought to be set aside. The Tribunal, on the other hand, contended that proper consideration had been given by it to the applicants’ case and that, as their credibility was dubious, it was relieved of the duty of applying the forward-looking test.

The court held that the ground upon which leave was granted had been made out. It noted that, although various aspects of the applicants’ claim had been assessed as lacking credibility, their ethnic background was not questioned nor was the nature of the inter-ethnic conflict that existed in Nagorno-Karabakh. The case was therefore one in which the obligation to consider the possible risk of future persecution arose.

In that regard, it said that the Tribunal had failed to analyse the potential threat the applicants could face if returned to Nagorno-Karabakh. It noted that there was no analysis in the decision of the up-to-date situation in Nagorno-Karabakh, of whether or not upheaval could occur again, of what the day-to-day situation for a young woman and child was in the region, and, most importantly, of the risk, if any, to those of mixed ethnicity. This was despite the mother’s claim that violent antagonism continued to exist between the Armenian majority and the Azeri minority and that mixed marriages were frowned upon and gave rise to the difficulties experienced by her extended family. The court held that a proper analysis of those matters was necessary in order to assess whether any future risk to the applicants existed.

Decision:

It therefore quashed the Tribunal’s decision.

Principles:

Where an applicant claims protection on the basis that he or she is at risk of persecution or serious harm in his or her country of origin on the basis of his or her ethnicity, and country of origin information bears out the existence of ethnic conflict there, then if a protection decision-maker accepts the applicant’s claimed ethnicity and the existence of ethnic conflict in the country of origin, he or she must consider the applicant’s evidence in the light of relevant country of origin information in order to ensure that the question of forward-looking fear is properly examined, even though other elements of the claim have been assessed as lacking credibility.

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