ZK v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:19 Nov 2014
Judge:McDermott J.
Category:Refugee Law
Keywords:Asylum, Country of Origin Information, Persecution, Protection (International), Refugee
URL:https://www.courts.ie/acc/alfresco/8b890159-5a9d-4ba5-831a-5d5b52c68fd7/2014_IEHC_543_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was a Georgian national who arrived in Ireland and sought asylum. He claimed to fear persecution in Georgia
on the basis of his homosexuality. He claimed that he had suffered discrimination and persecution there in the past, which culminated in an attack which resulted in his being injured and his partner killed. He said that the police did nothing about it, although they interviewed him and claimed to be investigating the matter.

Having investigated his application, the Refugee Applications Commissioner recommended that he not be declared a refugee, and its decision was affirmed, on appeal, by the Refugee Appeals Tribunal, whose decision the applicant challenged in these proceedings.

Reasoning:
The court quashed the Tribunal’s decision, having examined the applicant’s claim that it was unlawful on a number of accounts.

First, the applicant said that it failed to make sufficiently clear findings on his claim. The High Court agreed, saying that there was no finding in its decision as to whether the applicant was a homosexual or not, nor any specific finding as to whether he was the subject of discrimination and abuse by reason of his alleged sexual orientation. Some parts of the decision suggested his claim to be homosexual was believed, whereas others did not. The court was left in the invidious position of having to speculate as to whether or not he actually needed state protection. It accordingly held that the Tribunal had erred in not making a clear finding as to whether he was believed by it to be a homosexual.

Secondly, the applicant complained that the Tribunal was mistaken in concluding that there was no evidence to suggest that discrimination in Georgian society against homosexuals was condoned by the state, that it had failed to take any or any adequate account of the country of origin information which he had presented to the Tribunal, and failed to give any or any adequate reasons as to why the said information which supported his claim was not relied upon or rejected.

In that regard, the court noted that the Tribunal had information before it which suggested that discrimination against homosexuals was a problem in Georgia and that the authorities, including the police, could be unsympathetic to their plight. The Tribunal, however, relied on a piece of country of origin information which suggested otherwise.

The court held that if one piece of country of origin information was to be preferred over another, there had to be a logical reason for doing so if the outcome would be adverse to the applicant. In the instant case, the court held that the Tribunal had failed to comply with this requirement. It was not persuaded that the decision could be upheld by reference to the presumption of state protection and the fact, as the Tribunal had argued, that the police had investigated the killing of his partner without any complaint having been made by him. In its view, the decision was vitiated by the unsatisfactory treatment of the country of origin information and the failure to indicate why the alternate information was rejected and found to be insufficiently reliable.

Decision:
The court accordingly quashed the Tribunal’s decision.

Principles:

Where an applicant for international protection claims to be in fear of persecution or serious harm on the ground that he is homosexual, then a clear finding must be made by a protection decision-maker as to whether or not that claim is believed.

Where it is alleged that the state condones the persecution of or infliction of serious harm on homosexuals, then a decision-maker must examine whether or not country of origin information supports that claim. If such a decision-maker wishes to prefer one piece of country of origin information over another when ruling on that question, it must give logical reasons for doing so.
[2014] IEHC 543.

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