Arlovskaya v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 15 July 2005
• Neutral Citation: [2005] IEHC 244
• Docket Number: 118 J.R./2005
• Court: High Court
• Date: 15 July 2005

[2005] IEHC 244

THE HIGH COURT

118 J.R./2005

ARLOVSKAYA v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN/

CHASLAVA ARLOVSKAYA

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S2R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE SIVAKUMARAN 1988 2 AER 193Z

GNATEV v MIN FOR JUSTICE UNREP FINNEGAN 29.3.2001 2002/29/7601

HORVATH v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 WLR 379 2000 3 AER 577 2000 INLR 15

KHAMIS v MIN JUSTICE UNREP SMYTH 24.6.2002 2002/1/29

KRAMARENKO v REFUGEE APPEALS TRIBUNAL UNREP FINLAY-GEOGHEGAN 2.4.2004

R v IMMIGRATION APPEAL TRIBUNAL EX PARTE SARDAR AHMED 1999 INLR 473

BISONG v MIN JUSTICE & REFUGEE APPEALS TRIBUNAL (GARVEY) UNREP O'LEARY 25.4.2005

IMMIGRATION

Asylum

Well-founded fear of persecution - Credibility - Appropriate test - Trade union membership - Whether Tribunal had evidence which justified findings - Refugee Act 1996 (No 17), s 2 - Leave to apply for judicial review refused - (2005/118JR - Murphy J - 15/7/2005) [2005] IEHC 244 - A(C) v Refugee Appeals Tribunal

Mr. Justice Murphy

1 The applicant sought leave to apply for judicial review for the following reliefs: an order ofcertiorari quashing the decision of the Tribunal made 21st December, 2004, upholding the decision of the Commissioner that the applicant's claim for asylum be refused and for a declaration that the decision was ultra vires together with an interim injunction restraining the Minister from implementing the consequential deportation order.

2 From the questionnaire and affidavit of the applicant the following dates and facts are relevant:

3 08.09.48. Date of birth of applicant in Belarus.

4 11.03.02. Work visa granted; no work available.

5 11.06.02. Returned to Belarus; operated a market stall and received threatening letter.

6 —.09.02. Detained.

7 —.09.02. Returned to Ireland.

8 —.06.03. Passport seized by Gardaí: applied for refugee status.

9 03.06.04. Interviewed by authorities.

10 25.06.04. Refusal of application: s. 13 assessment: credibility impugned.

11 07.07.04. Notice of appeal.

12 04.08.04. Country of origin information.

13 30.08.04. Oral appeal adjourned.

14 17.11.04. Oral appeal adjourned.

21.12.04. Appeal refused: judicial review pleadings; leave granted

15 The applicant swore that she arrived in Ireland on 11th March with a work permit for a factory at Blanchardstown but was informed there was in fact no work for her. A visa was not exhibited nor was any correspondence in relation to the work. She said she did not want to return to Belarus as she had suffered there. She lived with her son who resided in Ireland. She had no option but to return home.

16 Prior to coming to Ireland she operated a stall in a market where a trade union, established in 1999, was organised to protect the stall holders” interests from corrupt officials who demanded bribes from traders. She also protested against high taxes. When the chairman of the union was detained in June, 2000, she organised a demonstration in Lenin Square in Grodno, on 20th June, 2000, where she gave a speech. She was arrested, held for two days, her family received telephone threats.

17 She stayed in Ireland until 17th June, 2002 where her daughter, who suffered from epilepsy, was ill. She became involved with a trade union, was again detained and threatened. She returned to Ireland in September, 2002 and stayed with her son. Her passport was taken by the Gardaí in June, 2003, at which time she applied for asylum and exhibited the questionnaire. She was interviewed on 3rd June, 2004 and referred to a copy of the interview notes.

18 The interview stated in answer to what she feared if she returned to her country as follows:

"I cannot go back to my country because I have a fear for my life. I cannot live in the country which is not democratic and where human opinion and demand mean nothing." (Question 9)

19 The interview notes at Question 13, as to why she came back to Ireland stated:

"In September I came back again. I decided to leave because of threat to me. I was working in the market in Belarus. I had a small business there, then they began to impose big taxes û we had to pay fines very often and also we had to pay bribes to the authorities. I became a member of the union of the local businessmen, we were trying to change somehow this situation. It didn't really help. Then I started to get anonymous telephone calls with threats that I should stop my activities. My daughter didn't want to tell me at first. Then I found out that they were threatening her as well. Because of that reason her seizures were happening more often. … I also received an anonymous letter saying “Go away or we will make you disappear”. The calls were happening especially after meetings, protests of the local businessmen."

20 Later in the interview she said she had been in custody for two days. No-one else was held. She was arrested because she was one of the leaders of the protest. She distributed propaganda to people to participate in the protest.

21 On 25th June, 2004, the Office of the Refugee Applications Commissioner refused a declaration that the applicant be a refugee and considered that she should not be afforded the benefit of the doubt. Her claims had not been supported by any documentation, thus undermining her overall credibility. It was considered that she would have applied for asylum in this State at a much earlier date in the event that she genuinely did have a fear of persecution in Belarus. Additionally, there were credibility issues surrounding her claim to have been in Belarus in the timeframe of the alleged incidents. As such it was considered that this applicant was not in need of international protection.

22 4.1 The applicant says that there was a serious mistake in that assessment. She believed that her credibility was impugned because she had no proof that she had in fact returned to Belarus in June, 2002, which evidence was held by the Gardaí at the time. She appealed the decision on 7th July, 2004.

23 4.2 Further country of origin documentation and submissions were sent to the Appeals Tribunal by her solicitor on 4th August, 2004.

24 The documentation also included an untitled web page referring to market vendors to stage nationwide protest the copy of which was defective and incomplete.

25 The letter of 4th August, 2004 from the applicant's solicitors to the Refugee Appeals Tribunal referred to the documents as consisting of Amnesty and Human Rights Watch reports of 2004, together with an extract from the personal website of the leader of one of Belarus's independent trade unions.

26 The first Amnesty report of 1st May, 2004 referred to independent trade unions being subject to a deliberate pattern of obstruction, harassment and intimidation and that the right of association was violated on a regular basis. It referred in particular to the detention in Minsk of officials of trade unions for alleged interference with trade unions” internal affairs and for an article criticising the decision of the Belarusian Supreme Court. Neither referred to the applicant's trade union nor to the dates or place identified by the applicant in her affidavit. The second report covering events from January to December, 2003, post-dates the applicant's return to Ireland as, indeed, does the first Amnesty report. The second report refers to Minsk but also to Grodno in June, 2002. The latter refers to a conviction for libel in an unpublished article which raised concerns about the government's involvement in disappearances. This was not claimed by the applicant to refer to the demonstrations in which she was involved.

27 Human Rights Watch of January, 2004 refers to events in 2003 of a general nature.

28 A further Human Rights Watch document, also dated January 1st, 2004, referred to restrictions on the press and on civil society, biased elections, disappearances and, what was termed "key international actors". There was no reference made, particular to any part of that report nor, indeed, does it appear to have direct relevance.

29 The last reference to the personal site of Valery Levonevski referred to a raid on the Grodno house of the chairman of the striking committee of entrepreneurs on February 15th and 16th, 2003. This appears to refer to an incident which post-dated the applicant's return to Ireland.

"On October 25th, the council of the Free Trade Union of Entrepreneurs announced that vendors from all regions in Belarus

would go on strike to press the government to address demands, reported Nasha Svaboda. The entrepreneurs” demand that he(sic) government re (sic) on entrepreneurs and customs tariffs on goods imported from Russia, simplify the — take measures to prevent officials, police and tax officers from exhorting money from vendors"

30 Amnesty International (2003), under the heading "Detention of Protesters" reported the Belarusian authorities continuing to resort to repressive measures to stifle peaceful protest and referred to detentions occurring sporadically in Minsk, resulting in peaceful protesters serving prison sentences of between two and ten days for participating in unsanctioned meetings and demonstrations. The report related to demonstrations on 12th, 23rd and 25th March. There was no indication of whether this was in 2003 or earlier.

31 4.3 The first document exhibited (as an appendix to exhibit C to the letter of 25th June, 2004 from the Office of the Refugee Applications Commissioner) headed "Belarus" being p. 12 of 29, under the heading "Freedom of Peaceful Assembly and Association" referred to the 1994 and 1996 Constitutions providing for freedom of peaceful assembly but the government severely restricting this right in...