D (AAAA) v Refugee Appeals Tribunal & Min for Justice
| Jurisdiction | Ireland |
| Judge | Mr. Justice McMahon |
| Judgment Date | 17 July 2009 |
| Neutral Citation | [2009] IEHC 326 |
| Date | 17 July 2009 |
| Court | High Court |
| Docket Number | [2007 No. |
[2009] IEHC 326
THE HIGH COURT
BETWEEN
AND
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
Z (V) v MIN FOR JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215 2003/49/12190
UNHCR CONVENTION & PROTOCOL RELATING TO THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 1A(2)
REVENKO v SECRETARY OF STATE FOR THE HOME DEPT 2001 QB 601 2000 3 WLR 1519
M (SH) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP CLARK 12.3.2009 2009 IEHC 128
M (S) v MENTAL HEALTH CMSR & ORS UNREP MCMAHON 31.10.2008 2008/38/8350 2008 IEHC 441
MIN FOR IMMIGRATION v SAVVIN & ORS 2000 171 ALR 483 2000 FCA 478
IMMIGRATION
Asylum
Time limit - Extension of time - Leave to apply - "Substantial grounds" - Stateless person claiming refugee status - Unable to return to country of former residence - Whether applicant required to show well founded fear of persecution - Whether first respondent had erred in failing to consider whether applicant refugee due to membership of particular group - VZ v Minister for Justice [2002] 2 IR 135 applied; SHM v Minister for Justice [2009] IEHC 128, (Unrep, Clark J, 12/3/2009) & Revenko v Home Secretary [2001] QB 601 followed - Refugee Act 1996 (No 17), s 2 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Time extended, leave granted (2007/1728JR - McMahon J - 17/7/2009) [2009] IHC 326
D(AAAA) v Refugee Appeals Tribunal
Facts The applicant had arrived in the State and had applied for refugee status. The applicant was a member of the Bidoon ethnic group from Kuwait. The applicant's claim for asylum was rejected by the Refugee Applications Commissioner and by the Refugee Appeals Tribunal. The applicant sought judicial review of the decision basing his case on a) whether a stateless person who was not permitted re-entry to their country of former habitual residence could qualify as a refugee and b) whether the Tribunal fell into error by failing to consider whether the applicant could qualify as a refugee by virtue of being a member of the Bidoon ethnic group, a group that was allegedly discriminated against in Kuwait and were denied citizenship there.
Held by Mr. Justice McMahon in granting leave to seek judicial review. The Court rejected the argument that to avail of refugee status, applicants who could demonstrate that they were stateless need not prove a well-founded fear of prosecution. To hold otherwise would be to read section 2 of the Refugee Act, 1996 in a narrow, literal manner. However the Tribunal failed to consider the issue raised by the applicant that he was not being accepted back into Kuwait because he was a Bidoon and this amounted to persecution under the United Nations Convention regarding refugees (the 1951 Convention) and leave to seek judicial review would be granted on this basis.
Reporter: R.F.
Mr. Justice McMahonon the 17th day of July, 2009
The applicant was born in 1978. He is a member of the Bidoon ethic group from Kuwait and has resided in Kuwait all his life. He came to Ireland on the 29 th October, 2006, and applied for refugee status on the 27 th November, 2006. A recommendation was issued by the Office of the Refugee Applications Commissioner (O.R.A.C.) that he be refused refugee status and he appealed to the Refugee Appeals Tribunal (hereinafter R.A.T.). By a decision issued on the 29 th November, 2007, the R.A.T. refused his appeal.
The ethnic group of Bidoon has been severely discriminated against in Kuwait, and are denied basic rights. The applicant was unable to obtain Kuwaiti citizenship, and has no status there. He was arrested and imprisoned on two occasions.
The applicant now seeks leave to issue judicial review proceedings to challenge the decision of the R.A.T.
The applicant appears to be five days out of time in commencing these proceedings, but the reasons for such a delay are set out in an affidavit filed on his behalf. Counsel for the respondent, while not consenting to such an extension of time, did not strongly oppose such an extension in the circumstances of the case, saying that it was a matter for the court. In the circumstances and for the reasons set out in the supporting affidavit of the applicant's solicitor, I grant the extension of time to bring these proceedings.
The two primary legal issues agreed by the parties in this case are:-
(a) Whether a stateless person, who is outside his country of habitual residence and is not permitted re-entry to that country, qualifies as a "refugee" under s. 2 of the Refugee Act 1996 (as amended by the Immigration Act 2003); and
(b) Whether the R.A.T. erred in failing to consider whether the applicant, as a Bidoon from Kuwait who is without resident status in Kuwait, and so cannot return to Kuwait, is a refugee by reason of his membership of a particular group.
Section 5 of the Illegal Immigrants (Trafficking) Act 2000, indicates that in such a case the applicant must show "substantial grounds" to succeed in obtaining an order for leave. In Z. v. Minister for Justice, Equality and Law Reform [2002] 2 I.L.R.M. 215 at 222, it was held that leave should only be refused where the court is satisfied that theapplicant's case could not succeed or where the grounds relied on are not reasonable or are "trivial or tenuous".
The R.A.T. made four core findings (see p. 23 of the decision of the 29 th November, 2007):-
i "(i) That the applicant had not shown that he was refused Kuwaiti citizenship unfairly;
(ii) That whilst he was arrested for working illegally this was not improper given that he was not a Kuwaiti citizen;
(iii) That he cannot return to Kuwait - 'the appellant is not returnable to Kuwait, given that he has never obtained an Article 17 passport. There is no reasonable likelihood, or indeed even a remote possibility given the evidence outlined above, that the appellant would be accepted for return by the Kuwait authorities in the circumstances'. (At p. 25 of the R.A.T. decision);
(iv) That, whilst it was accepted that the applicant will be imprisoned if returned to Kuwait, he nevertheless cannot fear future imprisonment there because he cannot return to Kuwait."
In respect of the latter two findings, the R.A.T. identified the following legal issue:-
"A live issue... is whether it can be concluded that someone is at risk of persecution in their country of origin or former habitual residence in circumstances where they will be refused entry to that country. The argument that needs to be resolved is how someone who will not beaccepted back by the Kuwaiti authorities would face a real risk of serious harm in that country." (At p. 23 of the R.A.T.'s decision)
Accordingly, the R.A.T. held that the applicant could not be a refugee simply because there was not a well founded fear of persecution where the admission to the country of former habitual residence was not a possibility.
The applicant's case may be summarised under three headings:-
(i) The Refugee Appeals Tribunal should have applied a literal interpretation to s. 2 of the Refugee Act 1996 (as amended). Had it done so, the applicant could be classified as a refugee.
(ii) A person who is outside his country of former habitual residence and who is categorised as stateless is a refugee only if the reason he cannot return to his country of formal habitual residence is a Convention reason.
(iii) The Refugee Appeals Tribunal failed to determine whether the applicant could not return because of a Convention ( i.e. the...
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