C (L R) & L (S J) v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] IEHC 87 |
| Court | High Court |
| Date | 22 January 2015 |
[2015] IEHC 87
THE HIGH COURT
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Asylum & Immigration & Nationality – S. 5 (3) (a) of the Illegal Immigrants (Trafficking) Act 2000 – Leave to grant certificate – Issues of public importance – Art. 10 (1) (d) of the Qualification Directive
Facts: Following the grant of orders of the certiorari quashing the decision of the first named respondent in relation to the applicants who fear persecution in China for having more than one child, the respondents now sought applied for grant of certificate to appeal the said decisions as involving questions of law of extreme public importance.
Mr. Justice Barr granted the certificate to appeal the decision of the Court as it involved issues that needed to be resolved at the earliest. The Court applied the test laid down in I.R. v Minister for Justice [2009] IEHC 510, wherein it was held that an appeal would lie only if there was an issue of extreme public importance, involving uncertain point of law, which if not resolved would likely affect the outcome of the future cases. The Court certified the questions regarding whether people having more than one child contrary to the Chinese one-child policy would be members of a ‘particular social group’ under s. 2 of the Refugee Act, 1996, whether that fact would constitute a ‘shared characteristic’ under art. 10 (1) (d) of the Qualification Directive and the one-child policy would constitute a ‘common background that cannot be changed’ under art. 10 of the Qualification Directive.
JUDGMENT of Mr. Justice Barr delivered the 22nd day of January, 2015
1. On 1 st October, 2014, and 10 th December, 2014, this court delivered judgments granting orders of certioari quashing the decisions of the Refugee Appeals Tribunal in respect of the applicants L.R.C. [2014] IEHC 500, and S.J.L. [2014] 608, who are husband and wife. The circumstances and background to this case are fully set out in the judgments of the court; I therefore provide but a brief overview here.
2. The applicants claimed to fear persecution in China on account of their having had more than one child in contravention of China's one child policy. In my judgment, I accepted that the fact that the applicants were parents of more than one child bom in China without official permission constitutes a "shared characteristic". I held that this characteristic cannot be changed by the applicants and that, in that capacity, it was arguable that they faced persecution in the form of forced sterilisation (already carried out on the wife and threatened against the husband); large fines; loss of employment; and discriminatory treatment, such as discrimination in relation to medical and educational benefits.
3. I therefore concluded that it was necessary to quash the decisions of the RAT and to refer the matter back to the RAT for further consideration of the applicants' claims in light of the all the documentation submitted. I held that the RAT would have to reconsider whether the applicants are refugees owing to the fact that they fear persecution by reason of their membership of a particular social group.
4. The respondents are now asking this court, pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, to allow an appeal against its decisions and to certify a number of questions as ones involving points of law of exceptional public importance. Section 5(3)(a) of the 2000 Act, provides:-
"The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court."
5. Section 5 of the Act of 2000 was substituted by s. 34(1) of the Employment Permits (Amendment) Act, 2014, with effect from the 3 rd October, 2014. However, in accordance with the terms of s. 34 (2) of the Act of 2014, it is the s. 5 as originally enacted which applies to the within proceedings as the application for judicial review was heard and determined prior to the commencement of the new section.
6. The respondents have requested that this court certify the following questions as ones involving points of law of exceptional public importance, such that it is desirable in the public interest that an appeal should lie:-
(i) Whether people who, contrary to the one child policy in China, have had more than one child without permission are members of a "particular social group" for the purposes of s. 2 of the Refugee Act, 1996, and/or Article 10 of the European Communities (Eligibility for Protection) Regulations, 2006 and/or Article 10 of the Qualification Directive;
(ii) Whether the fact that a person is a parent of more than one child born in China without official permission is a "shared characteristic" for the purposes of Article 10(1)(d) of the Qualification Directive or Article 10(1)(d)(i) of the European Communities (Eligibility for Protection) Regulations, 2006;
(iii) Whether the breach of a law of general application, and in particular the law providing for the "one child policy" in China constitutes a "common background that cannot be changed" or a "characteristic that is so fundamental to identity or conscience that a person should not be forced to renounce it" within the meaning of Article 10 of the Qualification Directive and/or Regulation 10 of the European Communities (Eligibility for Protection) Regulations, 2006.
7. The s. 5 test for when an appeal will lie is a replica of provisions which previously applied to judicial reviews in the planning and environmental area. As a result, a degree of consensus has emerged from the case law in both the planning and environmental area and the asylum and immigration area. These were summarised by Cooke J. in I.R. v. Minister for Justice [2009] IEHC 510, where he considered the principles established in Rain v. RAT (Unreported, High Court, Finlay-Geoghegan J., February 26, 2003), Glancré Teoranta v. An Bord Pleanala [2006] IEHC 250, and Arklow Holidays Ltd. v. An Bord Pleanála (Unreported, High Court, Clarke J., February 11, 2008).
8. On the basis of those authorities, Cooke J. stated, at para. 6 of his judgment in I. R., that the relevant principles were:-
(i) "It is not enough that the case raises a point of law: it must be one of exceptional importance;
(ii) The jurisdiction to grant a certificate must be exercised sparingly;
(iii) The area of law involved must be uncertain such that it is in the common good that the uncertainty be resolved for the benefit of future cases;
(iv) The uncertainty as to the point of law must be genuine and not merely a difficulty in predicting the outcome of the proposed appeal or in appraising the strength of the appellant's arguments;
(v) The point of law must arise out of the court's decision and not merely out of some discussion at the hearing;
(vi) The requirements of exceptional public importance and the desirability of an appeal in the public interest are cumulative requirements."
9. In this case, the definition of "particular social group" for the purposes of s. 2 of the Refugee Act, 1996, as amended, which gives effect to the definition of "refugee" as originally established by Article 1A of the Refugee Convention, 1951, was in issue. Since the date of enactment of the Act of 1996, the minimum standards for the qualification of third county nationals as refugee have been harmonised as part of the Common European Asylum System, and specifically by the provisions of Council Directive 2004/83/EC of 29 April, 2004 ("the Qualification Directive").
10. The respondents submitted that in H.I.D. v. Refugee Applications Commissioner [2011] IEHC 33, this court (Cooke J.) accepted the argument of the State that the Refugee Act, 1996, as amended, constitutes the implementation by this State of the provisions of the Qualification Directive (see para. 7). The respondents argued that, as a result, it follows that the definition of "refugee" in s. 2 of the Refugee Act, 1996, as amended, has now to be interpreted in a manner consistent with the provisions of the Qualification Directive. The respondents stated that as s. 2 merely establishes the general definition of "refugee," without any reference to the definition of "particular social group," it is therefore the Qualification Directive, and specifically Article 10 thereof, which is of importance in this case, and it should be noted that there appears to be no judgment of the Court of Justice on the interpretation of Article 10 of the Qualification Directive.
11. Article 10 of the Qualification Directive is headed "Reasons for persecution" and Article 10.1(d) provides:-
"A group shall be considered to form a particular social group where in particular: members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief...
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S.J.L. v Refugee Appeals Tribunal
...cases involved points of law of exceptional public importance and that it was desirable in the public interest that appeals be taken (see [2015] IEHC 87). The respondents appealed to the Court of Appeal, contending that the standard of arguability had been applied by the High Court in error......