G.E. v Refugee Appeals Tribunal
|Mr Justice David Keane
|03 October 2018
| IEHC 564
|[2017 No. 11 JR]
|03 October 2018
 IEHC 564
[2017 No. 11 JR]
THE HIGH COURT
Immigration and asylum – Refugee status – Judicial review – Applicant seeking judicial review of a decision by the respondent – Whether the respondent adopted an unduly narrow definition of acts of persecution
Facts: The applicant, a national of Israel, applied to the High Court seeking judicial review of a decision by the first respondent, the Refugee Appeals Tribunal, dated 7 November 2016, under s. 16(2)(a) of the Refugee Act 1996, to affirm the recommendation of the Refugee Applications Commissioner, dated 10 November 2014, under s. 13(1) of the 1996 Act, that the applicant should not be declared to be a refugee. The applicant submitted that: (i) the tribunal adopted an unduly narrow definition of acts of persecution; (ii) the tribunal adopted the wrong standard of proof under Art 9(2)(e) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive); (iii) the tribunal wrongly applied the 'highly likely' standard under Art. 9(2)(e) of the Qualification Directive to matters covered by the 'reasonable likelihood' standard under s. 2 of the 1996 Act; (iv) the tribunal's conclusion was an irrational and unreasonable one on the material before it; and (v) the tribunal breached the applicant's entitlement to natural and constitutional justice and fair procedures.
Held by Keane J that there was no question in this case of the tribunal rejecting the applicant's claim on the basis that there was no right of conscientious objection, the denial of which might amount to persecution. Keane J held that there was no suggestion in paragraph 46 of Case C-472/13 Shepherd v Germany ECLI:EU:C:2015:117 (26 February 2015) that Art. 9(2)(e) of the Qualification Directive must be interpreted as meaning that it is only necessary to establish a situation in which it is highly likely that war crimes will be committed, as described at the third indent, in cases involving one or more of the circumstances referred to at the fifth indent. Having rejected the two arguments on which it was based, Keane J also rejected the third argument. Keane J was satisfied that the tribunal's conclusion that the applicant had failed to establish with sufficient plausibility that the existing procedure for obtaining conscientious objector status cannot avail her was entirely consistent with the material before it and, hence, was in no way at variance with reason or common sense. Keane J held that the tribunal provided a reasoned explanation for coming to a different decision than the earlier tribunal and that the tribunal's decision in Recommendation No. 69/2393/06A&B suffered from a fundamental infirmity.
Keane J held that the application for judicial review would be dismissed.
This is the judicial review of a decision by the Refugee Appeals Tribunal ("the tribunal"), dated 7 November 2016 ("the decision"), under s. 16(2)(a) of the Refugee Act 1996, as amended ("the Refugee Act"), to affirm the recommendation of the Refugee Applications Commissioner ("the commissioner"), dated 10 November 2014, under s. 13(1) of that Act, that the applicant should not be declared to be a refugee.
The applicant is a national of Israel, born in 1997, who claims that, if returned there, she faces a well-founded fear of persecution on the ground of her political opinion due to her conscientious objection to compulsory military service. The applicant contends more specifically that, should she return to Israel, she faces prosecution or punishment for refusal to perform military service in a conflict in which that service would include crimes or acts that would amount to crimes against peace, war crimes, or crimes against humanity, or acts contrary to the purposes and principles of the United Nations as set out in the Preamble and Articles 1 and 2 of the Charter of the United Nations.
The application is based on an amended statement of grounds dated 30 January 2017, supported by an affidavit of the applicant, sworn on 6 January 2017, and an affidavit of the applicant's solicitor, sworn on the same date.
By order made on 6 February 2017, O'Regan J granted the applicant leave to seek various reliefs, principal among which is an order of certiorari quashing the decision on the grounds: first, that that tribunal applied the wrong legal test in assessing the applicant's claim; second; that the tribunal erred in law; acted ultra vires; rendered a decision that was unreasonable or irrational; breached the applicant's entitlement to natural and constitutional justice and fair procedures; breached the provisions of Directive 2004/83/EC; breached the Refugee Act; and breached European Union law; and third, that the tribunal's decision, was unreasonable or irrational in concluding that the applicant had failed to establish with sufficient plausibility that her military service would involve the commission of war crimes or acts condemned by the international community as contrary to the basic rules of human conduct, or that there was no system in place in Israel to enable the applicant to lawfully avoid military service.
O'Regan J also granted the applicant leave to seek an extension of time to bring these proceedings. That is necessary because under s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000, as amended, a person cannot question the validity of a decision of the tribunal under s. 16 of the Refugee Act otherwise than by way application for judicial review made within 28 days of being notified of it, unless the High Court considers that there is good and sufficient reason for extending that period and is satisfied that there are substantial grounds for contending that the decision is invalid and ought to be quashed.
The respondents delivered a statement of opposition dated 17 July 2017. It is supported by an affidavit of verification, sworn on 17 July 2017 by John Moore, a higher executive officer in the Department of Justice and Equality. In that document, the respondents join issue with each of the applicant's contentions.
The applicant swore a short supplemental affidavit on 14 November 2017 to exhibit for completeness certain documentation that she had submitted to the tribunal but had not exhibited to her first affidavit.
The applicant presented for an initial interview at the office of the commissioner on 24 July 2014. In the course of that interview, she identified herself as an Israeli national who had travelled from Israel to Ireland by air, departing on 23 July 2014 and arriving on 24 July 2014, specifically to seek asylum. The authorised officer who conducted that interview recorded the applicant's claim that she had been told to report for military service in Israel on 12 July 2015, which created for her the dilemma that, if she did military service, she may be required to kill or harm people either directly or indirectly and, if she did not, she would be prosecuted and jailed for two years and afterwards precluded from pursuing the profession of her choice in Israel.
On 2 August 2014, the applicant completed a questionnaire, which she submitted together with supporting documentation on her proposed military service and the penalties applicable to persons who fail to report for military service or who fail to fulfil an order or instruction given to them in the course of that service.
The applicant was formally interviewed, under s. 11 of the Refugee Act, on 13 October 2014. To briefly summarise the material part of the authorised officer's record of that interview, the applicant stated as follows. The results of the assessment of her suitability for military service in Israel made it very likely that she would be assigned to a combat unit. She requested a revised assessment that would preclude a combat unit assignment but did not get one. In a combat unit, she would "have to shoot and interrogate people and be involved in military actions." She stated: "I know I just can't do [that] stuff and if you don't obey an order you go to jail." When asked if she was a pacifist, the applicant sought clarification on the meaning of the term. When the question was rephrased as whether she was a conscientious objector or whether she objected to combat, the applicant responded that she was not a pacifist but would not be able to obey orders with the result that she could expect to be put in jail and barred from studying for, or entering, her chosen profession.
The applicant is recorded as stating that she was not opposed to military service in general but only to military service in a combat unit. The applicant was asked if she had sought an exemption from military service or an opportunity to perform some form of alternative service and responded, in substance, that she had not done so because she did not think she could obtain an exemption and had been told that no alternative form of service was available to her. The applicant acknowledged that she had not sought legal advice in that regard.
The report of the commissioner, under s. 13(1) of the Refugee Act, is dated 31 October 2014. It concludes that the applicant had failed to establish a well-founded fear of persecution on any of the grounds specified in the 1951 U.N. Convention relating to the Status of Refugees and the 1967 Protocol to that Convention (together, "the Refugee Convention"). A...
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