D.K. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Herbert
• Judgment Date: 05 May 2006
• Neutral Citation: [2006] IEHC 132
• Docket Number: [2005 No. 410 JR]
• Court: High Court
• Date: 05 May 2006

KVARATSKHELIA v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE

JUDICIAL REVIEW

BETWEEN:

DAVID KVARATSKHELIA

APPLICANT

AND

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

RESPONDENTS

[2006] IEHC 132

Record Number:2005/410/J.R.

THE HIGH COURT

IMMIGRATION

Asylum

Refugee status - State protection -Presumption that state of origin willing and able to provide protection - Failure to request assistance from state authorities in home country - Whether failure to seek protection sufficient to defeat claim - Canada (Attorney General) v Ward (1993) 2 RCS 689 and Skenderaj v Secretary of State for the Home Department [2002] EWCA Civ 567considered - Certiorari granted (2005/410 JR- Herbert J - 5/5/2006) [2006] IEHC 132, [2006] 3 IR 368 K(D) v Refugee Appeals Tribunal

Facts: The applicant sought an order of certiorari quashing the decision of the first named respondent refusing the to grant the applicant refugee status. The applicant contended that the respondent erred in law in finding that there was a presumption in favour of state of origin protection in refugee applications and further erred in determining that the applicant's failure to seek state protection was sufficient to render irrelevant any country of origin evidence of a failure on the part of the applicant's country of origin to provide protection.

Held by Herbert J. in granting certiorari: That the respondent did not err in law in applying a presumption of state of origin protection. However, the respondent misdirected herself in law in concluding that the failure of the applicant to seek protection from the state authorities in his country of origin was sufficient in itself to defeat his claim for refugee status.

Reporter: L.O'S

CANADA (AG) v WARD 1993 2 SCR 689

HATHAWAY LAW OF REFUGEE STATUS 1998 130

KADENKO v CANADA (SOLICITOR GENERAL) (RE KADENKO & ORS & MINISTER OF CITIZENSHIP & IMMIGRATION)143 DLR (4TH) 532

REFUGEE ACT 1996 S2

SKENDERAJ v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2002 EWCA CIV 567 2002 4 AER 555

CONSTITUTION OF GEORGIA 1995

1 JUDGMENT of Mr. Justice Herbert delivered the 5th day of May, 2006.

2 In her "Conclusion and Decision", the learned member of the Refugee Appeals Tribunal states as follows:-

"In summary, even though I have grave doubts about much of the Appellant's evidence, I accept that the Appellant may be at genuine risk of serious harm. I do not accept however that he has shown a failure of state protection by clear and convincing evidence. In the circumstances I must uphold the recommendation of the Refugee Appeals Commissioner."

3 For this reason and, because I do not consider it relevant to the decision of the Court on this application for judicial review, I see no purpose in setting out the lengthy background to this application.

4 At p. 17 of her Decision the learned member of the Refugee Appeals Tribunal had found that:-

"Given the societal attitude in Georgia it is likely that the Appellant would indeed be subject to ridicule, harassment and indeed violence, and in that respect I believe there is a genuine risk of serious harm."

5 At pages 18 and 19 of her very detailed and careful Decision the learned member of the Refugee Appeals Tribunal finds as follows:-

"In Ward at 724–726 the Supreme Court of Canada addressd the issue how, in a practical sense, a refugee claimant proves a state's inability to protect its nationals. The view taken was that "clear and convincing" confirmation of the state's inability to protect must be provided as absent some evidence, nations should be presumed capable of protecting their citizens.

At p. 130 of the Law of Refugee Status, Hathaway states:

"Obviously there cannot be said to be a failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming."

6 I conclude that the Appellant in this case has not shown "clear and convincing" evidence that he suffers or would suffer from a failure of state protection as it relates to his claim. He never approached the authorities for assistance and, while I accept that he may have felt apprehensive about doing so, if he was the subject of a criminal offence û assault upon his person û he should have reported these acts at least. I note that President Mikhail Saakashvili was cited as saying that his government would not permit "any kind of discrimination" against homosexuals and while actions speak louder than words I consider that the fact that homosexuality was decriminalized over 4 years ago, taken with the attitude of the leader of the country raises a presumption that state protection is available to someone in the Appellant's position. The Appellant's evidence does not displace this presumption in circumstances where assistance was not sought.

7 Where in Professor Hathaway's words, the refugee claimant ought reasonably to vindicate his or her basic human rights against the home state, refugee status is inappropriate. The application of this principle is illustrated by Kadenko v. Canada (Solicitor General) (1996) 143 D.L.R. (4th) 532, 533–534 (F.C.:C.A.), (HUGESSON AND DÈCARY J.J.A. AND CHEVALIER D.J.).

"Once it is assumed that the state (Israel in this case) has political and judicial institutions capable of protecting its citizens, it is clear that the refusal of certain police officers to take action cannot in itself make the state incapable of doing so. The answer might have been different if the question had related, for example, to the refusal by the police as an institution or to a more or less general refusal by the police force to provide the protection conferred by the country's political and judicial institutions."

8 It was contended on behalf of the Applicant at the hearing of this application for judicial review, that the first named Respondent, the member of the Refugee Appeals Tribunal, erred in law in finding:-

9 (a) That there was a presumption in favour of state of origin protection in refugee applications or alternatively that the matters referred to by the first named Respondent were sufficient to give rise to such a presumption in the instant case.

10 (b) That the fact that the applicant did not seek state protection in Georgia from homophobic abuse and assaults was sufficient to render irrelevant any country of origin evidence of a failure on the part of the Georgian state authorities to provide protection to homosexual men.

11 It was further contended, that the learned member of the Refugee Appeals Tribunal failed to have any proper regard to the country of origin information, to the evidence of complaints made by the Applicant and, to the instances of persecution suffered by the Applicant as establishing the non availability of a system for the protection of the citizen or a reasonable willingness by the state authorities to operate such a system.

12 Counsel for the Respondents submitted that the first named Respondent had properly relied upon the dicta of La Forest J., at pp. 725 and 726 of the decision in Canada (Attorney General) v. Ward (1993) 2 R.C.S. 689 where that learned Judge in giving the decision of the Canadian Supreme Court stated as follows:-

"Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognised in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant."

13 The Federal Court of Appeal's decision in Satiacum may best be explained as exemplifying such a case of presumption of a state's ability to protect and of objective unreasonability in the claimant's failure to avail himself of this protection. In that case an American Indian chief who was convicted of federal criminal charges fled to Canada before sentencing. Arrested in Canada a year later, he claimed refugee status. The persecution he alleged to have feared was a risk to his life if incarcerated in a federal prison. The Federal Court of Appeal found that Satiacum's fear did not meet the objective component of the test for fear of persecution as it must be presumed that the United States judicial system is effective in affording a citizen just treatment. The court stated, at p. 176:-

"in the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee hearing as in an extradition hearing, Canadian Tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a nondemocratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself."

14 Although this presumption...