The Romanian applicant sought to quash the Tribunal’s decision on the grounds, inter alia, that the Refugee Appeals Tribunal’s reliance on country of origin information was unreasonable and irrational in circumstances where the Tribunal preferred one report over another, and applied an incorrect test re well-founded fear of persecution.
In granting leave to apply for judicial review, the Court held that an objective fear of persecution required an analysis of the general human rights record of, and conditions in, an applicant’s country of origin and that regard could be had to the experiences of other members of the same group. The Court also stated that an applicant who demonstrates that he suffered past persecution is entitled to a legal presumption of a well-founded fear of future persecution, which may be rebutted by showing a change in the conditions in the country of origin in the context of an individualised analysis, and that where an adjudicator is presented with conflicting country of origin reports he should not choose between them but accept that the applicant has an arguable case.
With regard to identifying whether there was evidence of persecution the Court stated that persecution consists in serious and sustained or systematic violation of fundamental human rights, civil, political, social or economic, together with an absence or failure of state protection, including where such a situation results from the cumulative effect of various measures of discrimination. The Court cited with approval the formula of Lord Hoffman in R. v Immigration Appeal Tribunal, ex parte Shah and Islam v Secretary of State for the Home Department [1999] 2 AC 629 “Persecution = Serious Harm + The Failure of State Protection”. The Court found that in the instant case there were substantial grounds to argue that the Tribunal had confused the objective and subjective aspects of the test of well-founded fear of persecution, and erred in only having regard to the applicant’s own personal experiences.
