G.B. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 517
• Docket Number: [2015 No. 270 J.R.],[2015 No. 270 JR]
• Court: High Court
• Date: 29 July 2016

BETWEEN

G.B.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

[2016] IEHC 517

[2015 No. 270 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Reg. 9 of the European Communities (Eligibility for Protection) Regulations 2006 – Art. 9 of the Qualification Directive 2004/83/EC – Appeal against the decision of Refugee Appeals Tribunal – Whether discriminatory prosecution amounts to persecution – Conviction in absentia

Facts: The applicant, by way of the second judicial review proceeding, sought an order of certiorari for quashing the decision of the first named respondent refusing to grant refugee status to the applicant on the ground that the prosecution of the applicant in the country of origin did not amount to persecution.

Mr. Justice Humphreys granted an order of certiorari to the applicant and remitted the matter to the first named respondent for fresh consideration. The Court held that there existed a three-limb test in order to determine whether prosecution would amount to persecution under art. 9 (2) of the Qualification Directive. The Court observed that the first limb was to determine whether the alleged offence existed under the said art. 9 (2) of the Qualification Directive; the second was pertaining to the violation of human rights and the third was concerning the accumulation of measures for a similarly situate individual. The Court found that the decision-maker failed to apply the correct test as it was clear that the prosecution of the applicant was discriminatory. The Court also found that the conviction of the applicant in absentia in the country of origin and lengthy imprisonment for imputed political opinion was a form of persecution and a severe violation of human rights.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 The applicant is a member of the social liberal party in Moldova, which at the time with which the application is concerned had been an opposition party to the ruling communist party.

2 The applicant was elected mayor of his area. In that capacity he was accused of corruption in 2004 as part of a series of measures which were taken against opposition politicians in Moldova. He was provisionally suspended from his position as mayor and replaced by a member of the communist party.

3 He was then prosecuted for recording false data in official documents. He challenged the prosecution on the basis that he had not engaged in any criminal activity. However, his suspension was affirmed by court order in 2004, at a hearing at which he and his lawyer were not present. An appeal against that decision was made and refused on the grounds that only the prosecutor could appeal a decision of an examining magistrate.

4 Shortly thereafter, he made a complaint to the General Prosecutor regarding the individual prosecuting the applicant, on the grounds that he had a personal interest in the prosecution as he was linked to the former mayor. He submitted an application to replace the prosecutor, and a complaint regarding his suspension which was combined with a cessation of pay and an inability to work for a number of months.

5 He engaged in contact with the Council of Europe in relation to his case and that of similar opposition party mayors who were also suspended and replaced by government mayors in the context of similar allegations. The Congress of Local and Regional Authorities of the Council of Europe prepared a document entitled ‘4th Monitoring Report on Local Democracy in Moldova’ in January 2005, in which the rapporteur expressed at para. 81 and 82 ‘ strong criticism of the Moldovan central authorities regarding the use of the mechanism of initiating criminal proceedings against the opposition local politicians…we were struck by the fact that such measures seem to be applied primarily if not exclusively against local politicians from opposition parties rather than against local politicians loyal to the governing party’.

6 The applicant left Moldova for Ireland in 2006.

7 In February, 2007, the local court ordered the applicant's arrest in absentia.

8 In June, 2008, the Ministry of Internal Affairs wrote a letter to the applicant's wife stating that the Centre for Combating Economic Crimes and Corruption had declared the applicant a wanted person.

9 In January, 2008, the applicant was declared wanted internationally across the Commonwealth of Independent States.

10 In January, 2009, the Ministry of Internal Affairs wrote stating that the applicant was summoned to attend at the penal investigation unit.

11 In March, 2009, the applicant was charged with an offence in relation to the land transfer. He was convicted in absentia.

12 In January, 2012, the Supreme Court upheld the conviction of the applicant but reduced his sentence from the eight years, which had been imposed at first instance, to a six-year term of imprisonment.

The Asylum Claim

13 The applicant applied for asylum on 6th September, 2006. A s.13 report rejecting the claim on behalf of the Refugee Applications Commissioner was prepared on 18th December, 2006. The applicant appealed this decision to the Refugee Appeals Tribunal.

14 The tribunal refused the applicant's appeal on 17th June, 2010. The applicant then commenced a first set of judicial review proceedings [2010 No. 160 J.R.] challenging that decision.

15 On 25th November, 2013, the proceedings were settled and an order of certiorari was made on consent by McDermott J. quashing the decision and remitting the matter back to the tribunal.

16 The second tribunal decision was made by Ms. Majella Twomey on 15th April, 2015. The present judicial review arises in respect of that decision. The applicant's statement of grounds was filed on 20th May, 2015, slightly out of time.

17 Leave for the present proceedings were granted by Mac Eochaidh J. ex parte on 6th July, 2015. Time was extended for that purpose.

Extension of Time

18 Where time is extended on an ex parte basis, it is open to a respondent to take issue with the extension when the matter comes for an inter partes hearing. In the present case, Ms. Catherine Duggan B.L., for the respondent has sensibly not taken issue with the order of Mac Eochaidh J. extending time and I am grateful to her for the practical approach adopted in that regard.

Is the Minister a necessary respondent to proceedings under section 5 of the Illegal Immigrants (Trafficking) Act 2000?

19 In this case the applicant originally named the tribunal as a respondent and did not name the Minister. Section 5(2)(b) of the Illegal Immigrants (Trafficking) Act 2000, as enacted, required that an application for judicial review in relation to a decision to which the section applies, which includes a decision of the Refugee Appeals Tribunal refusing an asylum appeal, must be made on notice to the Minister. That section, as amended by the Employment Permits (Amendment) Act 2014, no longer contains the requirement for notice to the Minister. Thus, while it was the practice to name the Minister for Justice and Equality as a respondent prior to the 2014 Act, this no longer appears necessary as a matter of law. The Minister submitted that she was a necessary party under O. 84, r. 22(6). However I do not think that she is in the same category as for example the notice parties in O'Keefe v. An Bord Pleanala [1993] 1 I.R. 39 or Spin Communications v. I.R.T.C. [2000] IESC 56 (Unreported, Supreme Court, 14th April, 2000), where licence applicants were viewed as potentially affected by the quashing of a decision. The Minister has no direct stake in judicial review of refusal of asylum in the sense that she is required to follow the recommendation of the tribunal whatever it may be. As against that, one can see the logic from the Minister's point of view in seeking to uphold any negative decisions as this minimises the extent to which the State may have to take further measures as a downstream consequence of ultimate recognition. While that makes it appropriate that the Minister should be joined if she applies, it would not be in my view a strong enough interest to say that she is a necessary party without...