DE v Refugee Appeals Tribunal

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Respondent/Defendant:Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General.
Court/s:High Court
Citation/s:[2013] IEHC 304
Nature of Proceedings:Judicial Review
Judgment Date/s:25 Jun 2013
Judge:MacEochaidh J.
Category:Refugee Law
Keywords:Asylum, Asylum (Application for), Asylum application (Examination of an), Geneva Convention & Protocol, Protection, Protection (Application for International), Refugee, Refugee (Convention), Refugee Law
Country of Origin:Ukraine
URL:https://www.courts.ie/acc/alfresco/e64d995a-3bfa-488d-9c7d-c9aafc0690df/2013_IEHC_304_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicants were a married couple and their child from Ukraine. They claimed to fear persecution as a result of the first applicant’s pursuit of corruption allegations against senior military figures in Ukraine. He claimed that he had made complaints orally and in writing and that he had been assaulted by unknown individuals on account of this. He said … Read More

Principles:

A protection decision-maker like the Refugee Appeals Tribunal should not discount the credibility of a subjective claim for protection simply because it is not supported by documentation. Before doing so, it must have regard to reg. 5(3) of the Regulations of 2006 and decide whether or not the conditions set out therein are fulfilled. If they are, then the lack of documentation to support the claim will not have the effect of undermining its credibility.

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JG and WM (Czech Republic) v Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2013] IEHC 248
Nature of Proceedings:Judicial Review
Judgment Date/s:17 Apr 2013
Judge:McDermott J.
Category:Refugee Law
Keywords:Asylum, Asylum (Application for), Geneva Convention & Protocol, Persecution, Protection, Refugee, Refugee in transit
Country of Origin:Angola and Democratic Republic of Congo
URL:https://www.courts.ie/acc/alfresco/c0fd25c0-9d85-48de-bf4e-3bce483be008/2013_IEHC_248_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The first applicant in this case was a recognised refugee in the Czech Republic since 1998. He subsequently arrived in Ireland and applied for a declaration of refugee status. He stated that he had refugee status in the Czech Republic in 1998 but had subsequently been mistreated by that state or by non-state actors, including skinheads, acting with its … Read More

Principles:

Applications for asylum made by persons recognised as refugees in third countries based on alleged persecution in those countries are not admissible for processing in Ireland in the absence of cogent evidence that those countries afforded them no protection. This will be particularly where the third country in question is a Member State of the European Union and, as such a signatory to the European Convention on Human Rights and, in most cases, bound by the Charter of Fundamental Rights of the European Union and subject to the jurisdiction of the Court of Justice of the European Union.

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HN (Nawaz) v Minister for Justice, Equality and Law Reform

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Nawaz
Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2012] IESC 58
Nature of Proceedings:Appeal
Judgment Date/s:19 Dec 2012
Judge:Supreme Court (Fennelly J, O'Donnell J, McKechnie J, Clarke J, MacMenamin J)
Category:Refugee Law
Keywords:Asylum, Geneva Convention & Protocol, Protection, Protection (Application for International), Protection (International), Protection (Person Eligible for Subsidiary), Protection (Subsidiary), Protection Status (Subsidiary), Refugee, Refugee (Convention), Third-Country National
Country of Origin:Pakistan
URL:https://www.courts.ie/acc/alfresco/85c26c9e-adaf-4910-8187-53a056c2c041/2012_IESC_58_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicant was a national of Pakistan and from the Swat Valley. He arrived in Ireland in 2003 on a student visa. He married an Irish national and was granted permission to remain in the State until 2005. The marriage ended and the Minister notified him that his permission to be in the State was not being renewed as … Read More

Principles:

The true question was whether the ‘Qualification Directive’ required Member States, in their implementing measures, to make it possible for a third country national to make an application for subsidiary protection without making any application for refugee status. 

In order to determine whether the Minister was obliged to consider the applicant’s application for subsidiary protection in the absence of a determination that he was not entitled to refugee status, it was necessary to establish whether it is compatible with the ‘Qualification Directive’ for Irish law to provide that an application for Subsidiary protection will not be considered unless the applicant has already applied for and been refused refugee status. 

For this purpose the Supreme Court referred the following question to the European Court of Justice for preliminary ruling in accordance with Article 267 TFEU:

“Does Council Directive 2004/83/EC, interpreted in the light of the principle of good administration in the law of the European Union and, in particular, as provided for by Article 41 of the Charter of Fundamental Rights of the European Union, permit a Member State, to provide in its law that an application for subsidiary protection status can be considered only if the applicant has applied for and been refused refugee status in accordance with national law?”

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Mallak v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:Supreme Court
Citation/s:[2012] IESC 59
Nature of Proceedings:Appeal
Judgment Date/s:06 Dec 2012
Judge:Supreme Court (Fennelly J gave judgment for the Court) (Denham CJ, Murray J, O’Donnell J, McKechnie J)
Category:Citizenship, Naturalisation
Keywords:Charter of Fundamental Rights of the European Union, Citizenship, Citizenship (Acquisition of), Geneva Convention & Protocol, Naturalisation, Non-national, Refugee, Refugee (Convention)
URL:https://www.courts.ie/acc/alfresco/01c05728-fb80-47dc-a324-7b100387151a/2012_IESC_59_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The appellant was a citizen of Syria. He and his wife were recognised as refugees in Ireland in 2002 and he subsequently applied for a certificate of naturalisation pursuant to Section 15 of the Irish Nationality and Citizenship Act 1956 (as amended). This application was refused by the Minister in November 2008 acting in his absolute discretion. He did … Read More

Principles:

It does not necessarily follow that where a decision is in the absolute discretion of the decision maker, no reason need be given for it. There is a difference between having a reason and disclosing it. It cannot be correct to say that the ‘absolute discretion’ conferred on the Minister necessarily implied that he is not obliged to have a reason. That would be the very definition of an arbitrary power and the rule of law required all decision makers to act fairly and rationally, meaning that they must not make decisions without reasons.

While the grant or refusal of a certificate of naturalisation is, at least in one sense, a matter of privilege rather than of right, the mere fact that a person is seeking access to a privilege does not affect the extent of his right to have his application considered in accordance with law or apply to the courts for redress. It would be contrary to the notion of a state founded on the rule of law if all persons within the jurisdiction, including non-nationals, did not in principle have a constitutionally protected right of access to the courts to enforce their legal rights.

It is impossible for an applicant to address the Minister’s concerns and to make an effective application when he is in complete ignorance of the Minister’s concerns. More fundamentally, it is not possible for an applicant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, it would not possible for the courts to effectively exercise their power of judicial review.

Several converging legal sources strongly suggested an emerging common view that persons affected by administrative decisions have a right to know the reasons on which they are based including Section 18 of the Freedom of Information Act 1997, Article 296 of the Treaty on the Functioning of the European Union (TFEU) and Article 41 of the EU Charter of Fundamental Rights, which provides that every person shall benefit from the right to good administration including the obligation of the administration to give reasons for its decisions,  as well as relevant jurisprudence. 

The Supreme Court considered that at the very least the decision maker must be able to justify the refusal to give reasons.

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Adegbuyi v Minister for Justice and Law Reform

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Respondent/Defendant:Minister for Justice and Law Reform
Court/s:High Court
Citation/s:[2012] IEHC 484, 1 November 2012
Nature of Proceedings:Appeal
Judgment Date/s:01 Nov 2012
Judge:Clark J
Category:Refugee Law
Keywords:Asylum, Geneva Convention & Protocol, Protection, Protection (International), Refugee, Refugee Status, Refugee Status (Withdrawal of)
Country of Origin:Nigeria
URL:https://www.courts.ie/acc/alfresco/e6e0e80d-bd58-4c2a-b34d-b1d7570a590b/2012_IEHC_484_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicant had been recognised as a refugee in 2007. In late 2007 and 2008 information came to the Minister’s attention which caused him concern as to the applicant’s need for international protection. The applicant had originally been recognised as a refugee arising out of a criminal case involving a colleague at Lagos State University (LASU) who, it was … Read More

Principles:

In determining the validity of revocations of refugee status under Section 21(5) of the Refugee Act 1996 the Court is exercising an appellate function and determining whether or not the decision is wrong, and not a review function as to whether or not the decision is lawful. The correct approach to appeals under section 21(5) is to consider the revocation appeal on all of the information put before the court. The court is not confined to the information which was before the Minister. Under section 21(5) the Court may substitute its own reasons for those given by the Minister.

Section 21(1)(h) (and its corresponding provisions in Regulation 11(2)(b) of the European Communities (Eligibility for Protection) Regulations 2006 and Article 14(3)(b) of the Qualification Directive) has no equivalent in the Geneva Convention.   These provisions operate where evidence emerges that the person should never have been granted refugee status, and refugee declaration is invalidated and is void ab initio.

Section 21(1) must be read together with Regulation 11(2) of the 2006 Regulations, which was designed to give effect to Article 14(3) of the Qualification Directive.  Regulation 11(2)(a)  removed the Minister’s discretion to revoke refugee status under Section 21(1), and made revocation mandatory under all sub-sections except Section 21(1)(g).

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MLTT (Cameroon) v Minister for Justice , Equality and Law Reform & Refugee Appeals Tribunal

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Respondent/Defendant:Minister for Justice , Equality and Law Reform & Refugee Appeals Tribunal
Court/s:High Court
Citation/s:[2012] IEHC 568
Nature of Proceedings:Judicial Review
Judgment Date/s:27 Jun 2012
Judge:Clark J
Category:Refugee Law
Keywords:Asylum, Asylum application (Examination of an), Geneva Convention & Protocol, Protection, Protection (Application for International), Refugee, Refugee (Convention), Refugee Law
Country of Origin:Cameroon
URL:https://www.courts.ie/acc/alfresco/a8f33703-323c-49c0-bcb0-253dc5df3567/2012_IEHC_568_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicant was a national of Cameroon and claimed refugee status on the basis of a well founded fear of persecution arising out of his involvement as a student in political demonstrations which were suppressed by the authorities and several students had been killed, others arrested and female students raped. The applicant claimed he was arrested and detained in … Read More

Principles:

It is well established as a matter of international law and domestic refugee law that the test for determining whether a person is a refugee is forward looking. The principle that the decision maker may look to the past as a guide to what is likely to occur in the future but the past is not determinative was consistently accepted and applied.

Where an applicant’s core claim is accepted the Tribunal is bound to give consideration to and ought to go on to ask whether the applicant has a well founded fear of persecution if returned to his country of origin, in the light of accepted past experiences and to objective country information. The Tribunal must apply a forward looking test when assessing whether the applicant had a well founded fear of persecution.

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CB (DR Congo) v Refugee Appeals Tribunal

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DR Congo
Respondent/Defendant:Refugee Appeals Tribunal
Court/s:High Court
Citation/s:[2012] IEHC 487
Nature of Proceedings:Judicial Review
Judgment Date/s:26 Jun 2012
Judge:Clark J
Category:Refugee Law
Keywords:Asylum (Application for), Asylum application (Examination of an), Country of Nationality, Country of Origin Information, Gender, Geneva Convention & Protocol, Nationality, Persecution, Persecution (Acts of), Protection (Application for International), Refugee, Refugee (Convention), Refugee Law, Sex
Country of Origin:Democratic Republic of Congo (DR Congo)
URL:https://www.courts.ie/acc/alfresco/99f30cf3-a5d8-4363-a135-9f214e3da2a1/2012_IEHC_487_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicant was a national of the Democratic Republic of Congo (DR Congo). She claimed that she came from South Kivu province in eastern DR Congo and that she had suffered arrest, detention, beating and rape because of her activities in organising a small informal group whose purpose was to educate people about rape and warn against the activities … Read More

Principles:

It is arguable that where specific elements of a claim are not specifically rejected and there is well documented evidence of gender-based persecution, on which submissions are put to the Tribunal, it ought to apply a forward looking assessment of risk, based on the elements inter alia of gender and nationality.

The Tribunal must investigate or assess the possible risk to an applicant as a member of a particular social group, where there is information that gender is a relevant contributory factor in sexual violence suffered by women and that such violence has a differential impact on women.

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SA (Algeria) v Refugee Appeals Tribunal

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Respondent/Defendant:Refugee Appeals Tribunal
Court/s:High Court
Citation/s:[2012] IEHC 78
Nature of Proceedings:Judicial Review
Judgment Date/s:24 Jan 2012
Category:Refugee Law
Keywords:Asylum (Application for), Asylum application (Examination of an), Geneva Convention & Protocol, Persecution, Persecution (Acts of), Protection (Application for International), Refugee, Refugee Law, Refugee Status
Country of Origin:Algeria
URL:https://www.courts.ie/acc/alfresco/93608601-8979-4e5c-a362-1102a6476ade/2012_IEHC_78_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts The applicant was an Algerian national and homosexual. He claimed refugee status on the basis of a well  founded fear of persecution for the Refugee Convention reason of membership of a particular social group based on sexual orientation. He was refused by the Refugee Appeals Tribunal inter alia on the basis that he had not suffered any specific act … Read More

Principles:

It is an error to suggest that international protection will be available only where the applicant has actually suffered persecution in the past. The Geneva Convention protects those who can show they have a well founded fear of persecution and the test is essentially forward looking. The question is whether there is a well founded fear that persecution may occur if the claimant is returned to his country of origin.

The fundamental question is whether the applicant is likely to have to endure a severe violation of his basic human rights if he is returned to his country of origin within the definition of persecution in Article 9(1)(a) of the Qualification Directive.

Homosexuals form part of a social group for the purpose of the Refugee Convention, and sexual orientation is an intrinsic and immutable feature of human identity. A homosexual cannot be expected to sublimate or conceal their very identity in order to escape persecution by the state or societal forces condoned by the state.

While a failure to claim asylum at the first opportunity normally goes to the overall credibility of an applicant and may indicate a claim is not genuine, a claimant who might otherwise have a valid entitlement to international protection may be not be disbarred simply by reason of his failure to claim asylum at an earlier opportunity in a different country, where he is otherwise generally credible.

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