Aqs and Kis v Office of Refugee Applications Commissioner and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 23 November 2010
• Neutral Citation: [2010] IEHC 421
• Court: High Court
• Date: 23 November 2010

[2010] IEHC 421

THE HIGH COURT

[No. 1135 J.R./2007]

Aqs & Kis v Office of the Refugee Applications Commissioner & Min for Justice

BETWEEN

AQS AND KIS

APPLICANTS

AND

OFFICE OF THE REFUGEE APPLICATIONS COMMISSIONER, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S17(4)

GENEVA CONVENTION 1951

NEW YORK PROTOCOL 1967

MCD v L UNREP 2009 IESC 81 SUPREME 10.12.2009 2009/34/8411

CONSTITUTION ART 29.6

O'DOMHNAILL v MERRICK 1984 IR 151

Y (S) & Y (R) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTIS 2009 IEHC 18 UNREP MCMAHON 13.1.2009 2009/58/14870

ORCHOWSKI v POLAND UNREP ECHR 22.10.2009 (APPLICATION NO 17885/04)

MIN FOR JUSTICE v RETTINGER UNREP 2010 IESC 45 SUPREME 23.7.2010

HOVRATH v HOME SECRETARY 2001 1 AC 489

IMMIGRATION

Asylum

Relocation - Asylum status in Poland - Dissatisfied with life in Poland - Fear agents of state from country of origin in Poland - Fear location by earlier enemies - Application for asylum for social reasons - Whether fear of persecution in Poland - Statutory provision precluding refugee declaration to person already recognised as refugee - Lack of evidence protection of Polish authorities sought - Whether Minister precluded from granting declaration of refugee status - Whether respondent entitled summarily to reject application on ground refugee status already granted by another state - McD v L [2009] IESC 81 (Unrep, SC, 10/12/2009) applied; Horvath v Home Secretary [2001] 1 AC 489 followed; O'Domhnaill v Merrick [1984] IR 151, Orchowski v Poland App 17885/04 (Unrep, ECHR 22/1/2010), Minister for Justice v Rettinger [2010] IESC 45 (Unrep, SC, 23/07/2010) considered; Y v Refugee Appeals Tribunal [2009] IEHC 18 (Unrep, McMahon, 13/1/2009) distinguished - Refugee Act 1996 (No 17), s 17(4) - Application refused (2007/1135JR - Hogan J - 23/11/2010) [2010] IEHC 421

S(AQ) v Refugee Applications Commissioner

Facts: The husband and wife applicants who were Azeri nationals had applied for and obtained asylum in Poland in 2006. The husband applicant was a journalist and complained that during his tenure as editor of a prominent newspaper in Baku in Azerbaijan he was subject to assaults, threats and blackmail. The applicants claimed that his enemies had managed to locate him in Poland. The issue arose as to whether the applicants could realistically claim that they had a fear of persecution in Poland.

Held by Hogan J. that, with regret, the Court had to conclude that the applicants had no fear of persecution and the claims were doomed to failure. Poland was a Member State of the European Union and a party to the European Convention on Human Rights. The Court would conclude that the respondents were justified in refusing to investigate the complaints since in the circumstances the Minister had no jurisdiction to grant them refugee status.

Reporter: E.F.

1 1. This application for judicial review may be said to provide in its own way a modern exemplification of Neville Chamberlain's remarks apropos of (what was then) Czechoslovakia at the height of the Munich crisis in September 1938 about a quarrel "in a far away country between people of whom we know nothing." It is, however, a plain - if uncomfortable - fact that few Irish people could speak knowledgeably about Azerbaijan or the nature of its internal politics. Yet it is those internal politics and, specifically, the nature of the Azeri state apparatus that is at the heart of the present case.

2 2. The general issue in this case is whether the Minister for Justice, Equality and Law Reform was precluded by the terms of s. 17(4) of the Refugee Act 1996 ("the 1996 Act") from granting the applicants a declaration of refugee status in the State. At a more specific level it amounts to whether the Refugee Applications Commissioner was entitled summarily to reject the applications for refugee status made by Mr. S. and Ms. S. on the ground that they had already obtained such status in Poland and that the Minister had no jurisdiction in the matter.

3 3.Section 17(4) of the 1996 Act provides as follows:

"The Minister shall not give a declaration to a refugee who has been recognised as a refugee under the Geneva Convention by a state other than the State and who has been granted asylum in that state and whose reason for leaving or not returning to that state and for seeking a declaration in the State and does not relate to a fear of persecution in that state."

4 4. The present application arises in the following way. The applicants are husband and wife who are Azeri nationals who applied for and obtained asylum status in Poland in April 2006. Mr. S is a journalist who became editor in chief of a prominent opposition newspaper in Baku in Azerbaijan in 1994. He complained that during his tenure as editor he was subjected to assaults, threats and blackmail and, indeed, that agents of the Azeri security forces made an attempt on his life. It was against that background that the S family decided to leave Azerbaijan in July 2005 for Poland, having first secured a Polish visa.

5 5. Upon their arrival in Poland, both Mr. and Ms. S. then applied for asylum. Mr. S.'s affidavit in these proceedings has chronicled their treatment in a Polish refugee camp which, according to this uncontradicted account, was hard and decidedly unpleasant. During this period Ms. S. gave birth to the Couples' second daughter and suffered from general ill-health. At the end of April 2006 the applicants were granted refugee status and were issued with a Geneva Convention passport.

6 6. It is important to state that, certainly judged from the relatively recent country of origin information concerning Azerbaijan which has been exhibited in the present proceedings, there seems little doubt but that repression of journalists and political opponents is, regrettably, a commonplace. There have also been in recent times politically motivated kidnappings of prominent opponents of the regime. While the identity of the kidnappers is not known, it is quite possible that such actions involved agents of the Azeri state Accordingly, the grant of refugee status by Poland can scarcely come as a surprise and seems to have been abundantly justified in the circumstances.

7 7. Even then, it seems clear that life in Poland was still very difficult and the S family encountered poverty, unemployment and racism, the grant of refugee status notwithstanding. The applicants were undoubtedly unhappy with life in Poland and, indeed, made two abortive attempts to seek asylum in Germany and Denmark respectively. The applicants then travelled from Poland to Ireland in the early summer of 2007 and applied for asylum in Ireland on 3 ^rd June, 2007. The reason given for seeking asylum in this State in the application was described in the application form as being "social" in nature.

8 8. There were, however, a number of events which, according to Mr. and Ms. S caused to them to leave Poland for Ireland. Thus, Mr. S, contends that they encountered a woman taking photographs of them walking on the street in April 2006 and they believe that she was a private detective employed to locate them on behalf of the Azeri Government. Another example was provided by an incident in Warsaw in March 2007 where Mr. S. felt that he was being watched and followed as he walked through the city centre. He then contends that he recognised the driver of a prominent member of Azeri Parliament whom he thought was...