K.A. v Refugee Appeals Tribunal and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 17 April 2015 |
| Neutral Citation | [2015] IEHC 244 |
| Court | High Court |
| Date | 17 April 2015 |
[2015] IEHC 244
THE HIGH COURT
BETWEEN
AND
Asylum – Judicial review – Order of certiorari – Refugee Act 1996 (as amended) – The Illegal Immigrants (Trafficking) Act 2000
Facts: The applicant sought an order by way of judicial review for an order of certiorari quashing the decision of the respondent Tribunal. The applicant claimed that the Tribunal erred in law. The applicant further claimed that the claim for refugee status under s. 17 of the Refugee Act 1996 (as amended) was not assessed in accordance with the procedure. The applicant finally claimed that The Tribunal erred in rejecting the existence of the blood feud as a Convention reason for fear of persecution in case of a complete breakdown of the state apparatus.
Mr. Justice McDermott held that the application for leave to apply for judicial review would be denied. The Court declined to grant an order of certiorari quashing the decision of the Tribunal affirming the recommendation of the Refugee Applications Commissioner, which denied refugee status to applicant. The Court held that the Tribunal was correct in coming to a conclusion that a complete breakdown of the state apparatus was not visible. The Court held that the Tribunal correctly rejected the existence of the blood feud situation stating that it did not sufficiently establish a fear of persecution on a Convention ground.
1. This is an application by way of judicial review for an order of certiorari quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant not be granted refugee status.
2. The applicant was born in Cork on 6 th February 2010 to Kosovan parents and is a Kosovan national. Her parents arrived in Ireland on the 18 th January 2008 and unsuccessfully claimed asylum. Shortly after her birth an application for asylum was made on behalf the child on the 23 rd March 2010, A section 3 questionnaire was completed on her behalf by her mother, B.A. on 29 th March. The interview was conducted with her mother on the 23 rd April and a negative recommendation issued form ORAC on the 14 th May 2010. This decision was appealed by notice of appeal dated 17 th June 2010. Written submissions were furnished on the 19 th July which included extracts from country of origin information. The appeal was non-oral by reason of the provisions of s. 13(5) and (6) of the Refugee Act 1996 (as amended). The decision of the 27 th August was notified to the applicant by letter dated 22 nd September 2010. The appeal was unsuccessful.
3. The questionnaire completed by the child's mother stated at Q.21 that and her husband left Kosovo due to a blood feud between their family and another family "B" because they were in danger. Her parents were concerned that the applicant child would be in danger if she returned to Kosovo because of the blood feud and feared she might be kidnapped or maltreated as part of that feud.
4. It was accepted by the applicant's mother in the section 11 interview that the claim advanced on behalf of the child was based entirely on the facts which gave rise to the parents' failed applications for asylum.
5. The blood feud alleged had continued for over 20 years between B.A's family and family B. There had been one attack on her husband by a named individual some 10 years previously in which he had been stabbed in the throat causing a life threatening injury. Her husband and the extended family feared family B and specifically her husband's assailant and his brother. It was concluded that the potentially violent conduct of one member of family B towards the applicant's father could not be considered as persecution arising out of a blood feud but was, rather, a criminal act more suitable to criminal proceedings in Kosovo. It did not give rise to grounds for international protection. It was also considered that there were viable options open to the applicant through her parents to access assistance and protection should she return to Kosovo from the authorities and/or through a mediation programme which offers a form of reconciliation to families in blood feuds, if that be required. It was concluded that relocation was a reasonable option on return to Kosovo. It was noted that the applicant's claim was based on the fact that she was a member of a family unit who might be pursued by non-state actors of persecution and it was accepted that the Convention nexus could be established on the basis of her family membership in that her family was a particular social group under the Convention.
6. After considering all elements of the applicant's case it was concluded that the applicant's mother's claim that the child would not be safe in Kosovo because of the applicant's grandfather's blood feud with another family was insufficient to establish a fear of persecution on a Convention ground. It was stated:-
"Given the applicant's mother's fear of being persecuted was deemed to be not well-founded only serves to discredit the applicant's own fear in this case. However if we are to accept the applicant's fear in this instance and if there was ever a chance of harm coming to the applicant, then there would seem to be sufficient protection from the authorities and there are specific mediation centres in place especially for family feuds that could offer assistance. Furthermore internal relocation would be a viable option for her in such circumstances."
7. Having made a determination "that the applicant showed either no basis or a minimal basis for the contention that the applicant is a refugee" under s. 13(6)(a) the appeal from this decision proceeded without an oral hearing under s. 13(5)(a).
8. Extensive submissions were furnished to the Tribunal on behalf of the child applicant. Extensive country of origin information in relation to feuds in Kosovo was submitted. Two statements from the applicant's brother and uncle were also submitted outlining the origins of the feud between the families which was said to have commenced in 1988 when B.A.'s father quarrelled with a member of family B and shot him dead. The statements indicated that the family felt threatened by family B and that the police were not undertaking any initiatives to prevent any further attacks. However, there is no evidence in either statement of any further attacks taking place since the attack on B.A in February 1999. The report from the counsellor and psychotherapist in respect of B.A.'s injuries and symptoms of post traumatic stress disorder consistent with the attack described was also included. The wounds inflicted were said to be clearly visible and the subject of continuing treatment from plastic surgeons.
9. It was submitted on behalf of the applicant that a child was entitled to have her claim considered on its own merits irrespective of the rejection of the parents' claim for asylum. The Tribunal noted that both parents had applied for refugee status in the State and had been refused at first instance. The same member heard both appeals and affirmed the decisions reached. However, notwithstanding that fact the Tribunal also acknowledged that this did not determine the applicant's case nor did it fetter the decision-maker's discretion in any way since, as a matter of law, each case must be decided on its own merits. The Tribunal considered all of the material submitted on behalf of the applicant and noted that:-
"As a matter of common sense regard must be had to the position of the applicant's parents, since it is a very relevant consideration bearing in mind paragraph 43 of the UNHCR Handbook."
10. The Tribunal also noted that the applicant's solicitor claimed that family affiliation is a relevant ground which in itself required an assessment of the parents' position. It is clear the Tribunal Member was careful to ensure that the application on behalf of the child was considered on its own merits. However, it was noted:-
"I found that neither of the applicant's parents has a well-founded fear of her Convention reason based on being in a blood feud or other reasons. Accordingly, applying the above legal analysis, (it) would require and (sic) independent ground to be put forward on her behalf or that her advisors outline a change in circumstances. No evidence worthy of credit was being put forward in this regard."
11. The Tribunal Member's approach to this issue has not been challenged in any of the grounds advanced. Some criticism was made in the course of argument of the approach adopted. However I am satisfied that the Tribunal's approach to the applicant's child's case was entirely in accordance with law and in particular the judgment of Cooke J. in J. O. (a minor) (suing by her mother and next friend A. O.) v. Minister for Justice Equality and Law Reform [2009] IEHC 478
12. It was accepted by the Tribunal that the Convention ground of membership of a particular social group may be applicable to cases where a person is targeted by reason of being in a particular family which is feuding with another. The attributes of a blood feud as set out in the country of origin information and materials submitted were considered. The evidence in the case indicated that the applicant's grandfather shot family B's grandfather in 1988. Some 11 years later under the opportunity afforded by the Balkan War,...
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