B (K) v Min for Justice & Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 12 April 2013
• Neutral Citation: [2013] IEHC 169
• Court: High Court
• Docket Number: [2009 No. 264 JR]
• Date: 12 April 2013

[2013] IEHC 169

THE HIGH COURT

[No. 264 J.R./2009]

B (K) v Min for Justice & Refugee Appeals Tribunal

JUDICIAL REVIEW

K. B.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE OFFICE OF THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11(A)(3)

REFUGEE ACT 1996 S11

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5

EEC DIR 83/2004 ART 4

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

ROSTAS v REFUGEE APPEALS TRIBUNAL (HAYES) & MIN FOR JUSTICE UNREP GILLIGAN 31.7.2003 2003/46/11163

CHANCHAVAC v INS 207 F 3D 584

T (M S) & T (J) (A MINOR) v MIN FOR JUSTICE UNREP COOKE 4.12.2009 2009/54/13750 2009 IEHC 529

N (S) (UGANDA) v MIN FOR JUSTICE UNREP HOGAN 27.7.2011 2011/40/11498 2011 IEHC 451

RSC O.84 r27

A (J) & A (D) (A MINOR) v REFUGEE APPEALS APPLICATIONS CMRS & ORS 2009 2 IR 231 2008/1/43 2008 IEHC 440

IMMIGRATION

Asylum

Application for judicial review - Telescoped hearing - Certiorari - Togo - Persecution by state authorities due to involvement with opposition political party - Repetition of persecution feared if returned to country of origin - Past persecution accepted - Good reason to consider that persecution of applicant would be repeated if returned not established to satisfaction of tribunal - Additional wording added in transposition of directive - Whether tribunal considered counter exception introduced by additional wording - Failure of tribunal to advert to relevant legislative provision - Whether lawful approach taken to grant or refusal of protected status where past persecution accepted - Whether decision ultra vires - Delay - Whether good and sufficient reasons advanced to extend time - Obligation of State to advance argument of delay expeditiously - T(MS) v Minister for Justice, Equality and Law Reform [2009] IEHC 529, (Unrep, Cooke J, 4/12/2009); N(S) v Minister for Justice, Equality and Law Reform [2011] IEHC 451, (Unrep, Hogan J, 27/7/2011) and A(J) v Refugee Applications Commissioner [2008] IEHC 440, (Unrep, Irvine J, 3/12/2008) followed - Rostas v Refugee Appeals Tribunal (Unrep, Gilligan J, 31/107/2003) and Chanchavac v INS 207 F. 3d 584 (9th Cir. 2000) (US Court of Appeals for the 9th Circuit) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Refugee Act 1996 (No 17), ss 2, 11 and 11A - Council Directive 2004/83/EC - Relief granted (2009/264JR - Mac Eochaidh J - 12/4/2013) [2013] IEHC 169

B(K) v Minister for Justice

Facts: The applicant was a citizen of Togo who sought asylum in Ireland on the basis of political persecution. The Tribunal Member had concluded that the applicant had not established that he would be subject to persecution upon his return to Togo. He argued that his principal legal argument in respect of Article 5(2) European Communities (Eligibility for Protection) Regulations 2006 and factors to be taken into account in determining an entitlement to protection, had not been adverted to by the Tribunal Member. The Court considered how to approach the grant or refusal of a protected status where the Refugee Appeals Tribunal accepted that an applicant had suffered past persecution.

Held by MacEochaidh J. that good and sufficient reasons had been advanced to extend time. The Court granted leave to seek judicial review. The decision of the Tribunal member was ultra vires as he had not carried out the inquiry under the counter exception in Regulation 5(2).

1 JUDGMENT of Mr. Justice Mac Eochaidh delivered on the 12th day of April 2013

2 1. Where the Refugee Appeals Tribunal accepts that an applicant for refugee status has suffered past persecution, how should it lawfully approach the grant or refusal of the protected status? This is the principal issue which arises in these telescoped judicial review proceedings.

3 2. The applicant is a citizen of Togo who sought asylum in Ireland in 2006 on the basis of persecution suffered arising from his involvement with an opposition political party. He claimed he was detained and beaten by State security forces on a number of occasions between 2002 and 2005, and he says that he fears repetition of this treatment should he return to Togo. The Tribunal Member has set out an account of the applicant's past persecution and his involvement with political campaigning in opposition to the Government of Togo. The applicant accepted that he was not an officer of the political party with which he was involved, but that he was somewhat more than an ordinary party member and had distributed pamphlets for the party and had suffered as a result. His brother, though involved with a different political party, successfully sought asylum in Ireland.

4 3. The Tribunal Member also set out his description of the applicable law, including the definition of a refugee pursuant to s. 2 of the Refugee Act 1996 (as amended) (the "1996 Act") and the provisions regarding the burden of proof (s. 11A(3) of the 1996 Act) and the provisions regarding the assessment of credibility (s. 11 of the 1996 Act). Particular mention was made by the Tribunal Member of the central statutory provision at issue in these proceedings, that being Regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006, which implements Article 4 of the Qualification Directive 2004/83/EC. Regulation 5(2) provides that a factor to be taken into account in determining if an applicant is entitled to protection includes "The fact that a protection applicant has already been subject to persecution or serious harm, or to direct threats of such persecution and such harm, shall be regarded as a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated, but compelling reasons arising out of previous persecution or serious harm alone may nevertheless warrant a determination that the applicant is eligible for protection."(emphasis added). The underlined portion of Regulation 5(2) does not appear in the parent Directive and is an additional legislative provision which the domestic legislator has added to the matters which are to be taken into account in determining if an applicant is entitled to protection.

5 4. In assessing the claim for protection, the Tribunal Member summarised the persecution said to have been suffered as follows:

6 · "Threats to him for his involvement in politics.

7 · Bodily injury (loss of teeth).

8 · Unlawful detention without trial.

9 · Inhuman treatment."

10 5. The Tribunal Member was satisfied that these acts constituted severe violation of basic human rights so as to constitute acts of persecution for the purposes of s. 2 of the 1996 Act. Summarising his conclusions on the evidence given on behalf of the applicant, the Tribunal Member said:

"The applicant's credible evidence was supported to the historical background was set out succinctly by the applicant's brother's evidence. The applicant's credible evidence was supported to the extent that medical evidence demonstrated that the injuries he claimed he sustained have in fact been sustained (while it cannot show the context from which they were sustained it is nonetheless corroborative of the general thrust of the applicant's evidence). Accordingly, I...