C (LR) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 01 October 2014
• Neutral Citation: [2014] IEHC 500
• Court: High Court
• Date: 01 October 2014

[2014] IEHC 500

THE HIGH COURT

[No. 142 J.R./2009]

C (LR) v Refugee Appeals Tribunal & Ors

No Redaction Needed

JUDICIAL REVIEW

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

IN THE MATTER OF THE IMMIGRATION ACT 1999 AND

IN THE MATTER OF THE ILLEGAL IMMIRGRANTS (TRAFFICKING) ACT 2000 AND

IN THE MATTER OF THE EUROPAN CONVENTION ON HUMAN RIGHTS ACT 2003 SECTION 3(1)

BETWEEN

L.R.C.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELLAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

Immigration and asylum – Membership of a particular social group – Credibility – Applicant seeking refugee status due to fear of persecution from Chinese authorities – Whether applicant is a member of a particular social group

Facts: The applicant, LRC, and her husband are Chinese nationals. The wife gave birth in 1998 in secret as the child"s father, her husband, was not then of the minimum age to marry. On registering their marriage in 1999, it was discovered that the wife was again pregnant. The family planning commissioner informed them that the child had to be aborted. The applicant and her husband went into hiding and returned home after she gave birth. The wife was then forcibly sterilised. The applicant and her husband were also charged in relation to the birth of their children. Of the total fines of 25,100 Yuan, 11,000 Yuan was paid. The family planning enforcers returned seeking to take the husband for a sterilisation, whereupon the couple fled China and arrived in Ireland in 2000. The applicant worked in various Chinese restaurants until detected without identity documents by the gardaí in 2005. The applicant and her husband both sought asylum. They claimed that if returned to China they would be made an example of by reason of their early marriage and early childbirth; that they would be exposed to wide publicity and regarded as monsters; that the husband would be forcibly sterilised; and that their children would be adversely affected. Reports were issued in respect of each applicant pursuant to s. 13 of the Refugee Act 1996. In each case the Commissioner recommended that neither applicant be considered a refugee within the meaning of the 1996 Act. The husband and wife each lodged appeals against the finding of the RAC. In 2009, the same member of the RAT issued a decision that the applicants should not be declared refugees within the meaning of the legislation. The applicants brought judicial review proceedings before the High Court against the decisions of the RAT. The applicants argued that because they have had a second child in breach of China"s one-child policy, they are people who could be seen as being part of a particular social group, namely people who have had two or more children in contravention of Chinese law, citing Regulation 10(1)(d) of the European Communities (Eligibility for Protection) Regulations 2006. The applicant, considering Cheung v Canada (Minister of Employment and Immigration) [1993] 2 FC 314, argued that the case law establishes that for a group to exist, it does not have to be cohesive; the relevant issue is whether there is a common element that the group shares amongst its members. Adverse credibility findings were made against the husband on account of the fact that he did not know how much of the fines remained to paid to the Chinese Government. The RAT was also critical of the fact that the applicants could not provide more information of their journey to Ireland and that the wife had said that she had not applied for asylum in any other country, stating that she did not know that she had filled in an asylum application form in the UK in 2003.

Held by Barr J that, having applied the various dicta in the case law cited by the applicant, the applicant could be seen as being part of a particular social group; in that capacity, they face 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. Barr J held that where country of origin documentation is submitted, it must be looked at and incorporated into the decision of the Tribunal, and that a large amount of the COI documentation was ignored by the RAT. Barr J held that it is necessary to refer the matter back to the RAT for further consideration of the applicant"s claim in light of the all the documentation submitted. Barr J was satisfied that there was evidence on which the RAT was entitled to reach adverse credibility findings against the applicants, however, those findings were in relation to peripheral aspects of the applicant"s claim.

Barr J held that the 2009 decision of the RAT be quashed and directed that the matter be referred back to the Tribunal for a fresh determination.

Application granted.

1 1. The applicant and her husband both entered Ireland in April 2000. They both sought asylum in Ireland in 2005. They will be referred to individually as "the wife" and "the husband" in this judgment.

Background

2 2. The applicant and her husband are Chinese nationals. The wife was born on 5 ^th March, 1975, and the husband was born on 13 ^th January, 1977. The wife gave birth to a son on 6 ^th August, 1998, in secret, as the child's father, her husband, was not then of the minimum age to marry. The wife and her husband were married on 20 ^th January, 1999, by which time, the husband had reached 22 years of age and was lawfully entitled to marry. On registering their marriage, it was discovered that the wife was again pregnant. The family planning commissioner charged with the task of enforcing the stringent family planning rules, informed them that the child had to be adopted. The applicant and her husband "did not have the heart to get rid of the child" and went into hiding. Their second son was born on 1 ^st August, 1999, following which the wife returned home.

3 3. On 24 ^th August, 1999, the wife was forcibly taken to hospital and permanently sterilised by cutting her fallopian tubes. The applicant and her husband were also charged in relation to the birth of their children. They were fined 8,500 Yuan in respect of the unplanned birth before the legal permitted age and 16,600 Yuan in respect of the second birth in the absence of legal permission. Of the total fines, 11,000 Yuan was paid.

4 4. Some short time later, the family planning enforcers returned seeking to take the husband for a sterilisation, whereupon the couple fled to Fuzhou City. They were unable to register with the authorities in Fuzhou or anywhere else without the required documentation and were unable to return to the husband's area to procure the documentation. Their children were left in the care of the husband's parents.

5 5. The applicant and her husband fled China on 15 ^th February, 2000, through the aegis of a smuggling gang. They travelled through different destinations over the course of two months, sometimes by plane and sometimes by car. When not travelling, they were kept out of sight. They became separated in the course of the journey.

6 6. The applicant arrived in Ireland on 23 ^rd April, 2000, while the husband arrived on 28 ^th April, 2000. They lived among the Chinese community and worked in various Chinese restaurants.

7 7. In 2003, their family put them in touch with an agent, a Chinese national, whom they met in Dublin with a view to procuring legal status for the wife in the UK, with the hope that she would in due course be joined by her husband and children. The wife accompanied the agent to the UK on 28 ^th March, 2003, but was detained at the airport. She recalled being fingerprinted and completing a form with the assistance of an interpreter. The agent then immediately brought the wife back to Ireland by boat, his plan having been unsuccessful. In the event of the agent successfully procuring legal status for the wife in the UK he was to be paid €10,000.

8 8. The applicant continued working in various Chinese restaurants until detected without identity documents by the gardaí in November 2005. The wife gave evidence at her interview that it was a solicitor who applied for bail and who, having heard their history, advised them to apply for protection in Ireland. The husband stated in his interview that it was friends who suggested that they apply for asylum.

9 9. The applicants submitted their completed questionnaires on 7 ^th December, 2005, wherein they claimed that if returned to China they would be made an example of by reason of their early marriage and early childbirth; that they would be exposed to wide publicity and regarded as monsters; that the husband would be forcibly sterilised; and that their children would be adversely affected. In response to the query about disability or medical conditions the wife stated that conjugal relations caused her pain as a result of scarring from her sterilisation operation.

10 10. The applicants were interviewed on 28 ^th August, 2006. Thereafter reports were issued in respect of each applicant pursuant to s. 13 of the Refugee Act 1996 (as amended). In each case the Commissioner recommended that neither applicant be considered a refugee within the meaning of the Refugee Act 1996 (as amended).

11 11. The husband and wife each lodged appeals against the finding of the RAC. Further country of origin information was submitted with the notice of appeal. As the applicants had not applied for asylum immediately upon arrival in the State, s. 13(6)(c) of the Refugee Act 1996, as amended, applied to the appeal in respect of both applicants. In addition, in respect of the wife, the RAC also recommended that the matter came within s. 13(6)(d). As a result, the appeal was determined on the basis of a...