BA v International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 27 January 2017
• Neutral Citation: [2017] IEHC 36
• Court: High Court
• Docket Number: [2016 No. 160 JR]
• Date: 27 January 2017

[2017] IEHC 36

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2016 No. 160 JR]

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED BY SECTION 34 OF THE EMPLOYMENT PERMITS (AMENDMENT) ACT 2014)

AND IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED)

BETWEEN

B.A.

AND

C.A. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND B.A.)

AND

D.A. (AN INFANT SUING BY HER MOTHER AND BEST FRIEND B.A.)

AND

MARK BYRNE SITTING AS THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

Asylum, Immigration & Nationality – The Refugee Act 1996 – S. 5 of the Illegal Immigrants (Trafficking) Act 2000 – Reg. 5(2) of the European Communities (Eligibility for Protection) Regulations 2006 as substituted by reg. 32(1) of the European Union (Subsidiary Protection) Regulations 2013 – Refusal of asylum claim – Certiorari – Application of incorrect test – Compelling reasons

Facts: The applicant sought an order of certiorari for quashing the respondent's decision for not granting the refugee status to the applicants. The applicants argued that the respondent applied an incorrect test while making an assessment of ‘compelling reasons’ under reg. 5(2) of the 2006 Regulations.

Mr. Justice David Keane refused to grant the desired relief to the applicants. The Court found that the respondent applied that correct test as the respondent evaluated as to whether the applicants had suffered an atrocious form of persecution in the country of origin so as to bring their claim within ambit of ‘compelling reasons’. The Court held that the decision arrived at by the decision-maker was apt and cogent as the applicants failed to meet the threshold set by the term ‘compelling reasons’ in order to claim protection. The Court found that the self-confinement of the first applicant's husband at home in the country of origin did not amount to atrocious form of persecution despite the fact that it did have psychological impact on the applicants. The Court noted that reg. 5(2) of the 2006 Regulations did not define the term ‘compelling reasons’ and thus, the circumstances of any particular case would fall to be considered by the decision-maker.

JUDGMENT of Mr Justice David Keane delivered on the 27th January 2017

Introduction

1 This is a challenge to the decision of the International Protection Appeals Tribunal (“the IPAT”), pursuant to s. 16 (2) of the Refugee Act 1996, as amended, to affirm the recommendation that the applicants should not be declared to be refugees. The decision was made on the 26th February 2016.

2 On the 14th March 2016, the applicants were given leave to apply for an order of certiorari quashing the decision on a single ground. That ground is that the respondent applied an incorrect test when considering whether there are compelling reasons arising out of the applicants' previous persecution that warrant a determination that they are eligible for protection as refugees.

3 At the time when leave was granted, the IPAT was known as the Refugee Appeals Tribunal. When s. 71(5) of the International Protection Act 2015 came into force on the 31st December 2016, the former was substituted for the latter in these proceedings by operation of law.

Background

4 In summary, the salient findings in the decision under review are as follows:

(a) The first applicant was then 37 years old and the second and third named applicants, her son and daughter, were 16 and 14 years old respectively.

(b) The applicants' family is the subject of a “blood feud” in their country of nationality, Albania, and the first applicant's husband (the father of the second and third applicants) has been obliged to confine himself in the family home there since 2010, because, under the custom or convention that governs such feuds (“the Kanun Code”), harming a man in his own home is forbidden, as is harming a woman or child in any circumstance.

(c) There has been past persecution of the applicants, since self-confinement, as a means of escaping a blood feud, is in itself persecution both of the person concerned and, by extension, of that person's close family members.

(d) The applicants have a well-founded fear of harm at the hands of the persons concerned if returned to Albania, which potential harm would amount to persecution.

(e) There is a nexus with one of the reasons for persecution recognised under the United Nations Convention relating to the Status of Refugees 1951 (“the Geneva Convention”) and, in domestic law, under s. 2 of the Refugee Act 1996 (“the 1996 Act”), as amended. That “Convention nexus” is the applicants' membership of a particular social group. The particular social group in this instance is the applicants' family.

(f) While the picture painted by the available “country of origin information” (“COI”) is not uniform, the more recent and authoritative information is that adequate state protection would be available to the applicants were they to return to Albania.

(g) Having found that the applicants have already been subjected to persecution, but also that there is good reason to consider that such persecution will not be repeated if they are returned to Albania because of the existence of adequate state protection there, there are no compelling reasons arising out of that previous persecution that nevertheless warrant a determination that the applicants are eligible for protection as refugees.

Regulation 5(2)

5 In considering whether a person claiming protection has a well-founded fear of persecution, a decision maker is required to have regard to reg. 5(2) of the European Communities (Eligibility for Protection) Regulations 2006 (“the Protection Regulations”), as substituted by reg. 32(1) of the European Union (Subsidiary Protection) Regulations 2013 (“the Subsidiary Protection Regulations”). It provides:

“The fact that a protection applicant has already been subject to persecution, or to direct threats of such persecution, shall be regarded as a serious indication of the applicants well-founded fear of persecution, unless there are good reasons to consider that such persecution will not be repeated but compelling reasons arising out of previous persecution alone may nevertheless warrant a determination that the applicant is eligible for protection as a refugee.”

6 The final sub-clause of reg. 5(2) – the “compelling reasons” sub-clause – differs from the remainder of that clause in that it does not form part of the transposition of Council Directive 2004/83/EC of 29 April 2004 (“the Qualification Directive”). Article 4(4) of the Qualification Directive states:

“The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution of real risk of suffering serious harm, unless there are good reasons to consider that such persecution or harm will not be repeated.”

7 The “compelling reasons” sub-clause of reg. 5(2) of the Protection Regulations is often referred to as “the counter-exception”, having been described as such by Cooke J. in M.S.T. & J.T. v MJELR [2009] IEHC 529 (at §29). The basic proposition is that past persecution is regarded as a serious indication of a well-founded fear of future persecution. The exception to that proposition is where there are good reasons to consider that such persecution will not be repeated. And the counter-exception (or exception to the exception to the basic proposition) is that, even where there are good reasons to consider that past persecution will not be repeated, compelling reasons arising out of that past persecution may warrant a determination that the applicant should be declared a refugee.

8 In S.I. v. MJELR & Ors [2016] IEHC 112 (at §24), Humphreys J. questioned the applicability of the terminology I have just described to the component parts of reg. 5(2), taking the view that the provision contains neither an exception nor a counter-exception but rather comprises a rule regarding inferring a need for protection, and an additional rider describing an extended ground on which a need for protection may arise. Humphreys J. went on (at §25) to question the applicability of the term “proviso” to the “compelling reasons” sub-clause in reg. 5(2), despite its use in that context by Hogan J. in S.N. v MJELR [2011] IEHC 451. Instead, Humphreys J. endorsed the use of the description of the “compelling reasons” sub-clause by Cross J. in J.T.M. v MJELR [2012] IEHC 99 as “an added tail”, adding that it could also be referred to as a “rider” or “final clause.”

9 In order to avoid wading into that controversy, I propose to refer to the reg. 5(2) sub-clause at issue as the “final clause.”

10 In S.N. v MJELR, already cited, Hogan J. summarised the position in the following way (at §33):

“As Cooke J. further found in MST that the counter-exception proviso in Regulation 5(2) was an ‘incidental and supplemental provision to the transposition’ within the meaning of s. 3(2) of the European Communities Act 1972, it would seem that this super-added provision must be treated essentially as a species of national law which hovers over the terms of Article 4(4) of the Directive, but is one which must nonetheless be interpreted in a manner compatible with the Directive itself. Moreover, as Cooke J. himself noted, the counter-exception – with its focus on past events – does not fit easily with the underlying purpose of subsidiary protection, namely, to mitigate the risk of exposing the applicant to the future risk of serious harm in the event of his return to his country of origin.”

The part of the decision challenged

11 Counsel for the applicants acknowledges that they did not make any case to the Tribunal that there are any compelling reasons, arising out of their past persecution, that warrant a determination that they should be declared to be...