L (SJ) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 10 December 2014
• Neutral Citation: [2014] IEHC 608
• Court: High Court
• Date: 10 December 2014

[2014] IEHC 608

THE HIGH COURT

[No. 141 J.R./2009]

L (SJ) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED),

IN THE MATTER OF THE IMMIGRATION ACT 1999 AND

IN THE MATTER OF THE ILLEGAL IMMIRGRANTS (TRAFFICKING) ACT 2000 AND

IN THE MATTER OF THE EUROPAN CONVENTION ON HUMAN RIGHTS ACT 2003 SECTION 3(1)

BETWEEN

S.J.L.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELLAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(6)(C)

REFUGEE ACT 1996 S13(6)(D)

C (LR) v REFUGEE APPEALS TRIBUNAL & ORS UNREP BARR 1.10.2014 2014 IEHC 500

REFUGEE ACT 1996 S2

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 10(1)(D)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 10

EEC DIR 83/2004 ART 10

EEC DIR 83/2004 ART 10(D)(I)

EEC DIR 83/2004 ART 10(D)(II)

CHEUNG v CANADA (MIN OF EMPLOYMENT & IMMIGRATION) 1993 2 FC 314 1993 FCJ NO 309

CHAN v CANADA (MIN OF EMPLOYMENT & IMMIGRATION) 1995 128 DLR (4TH) 213 1995 CLB 360 1995 3 SCR 593

Z W D, IN RE UNREP 20.10.1992 REFUGEE APPEAL NO 3/91 (NEW ZEALAND REFUGEE REVIEW BOARD)

A v MIN FOR IMMIGRATION & ETHNIC AFFAIRS 1997 HCA 4 1998 INLR 1 1997 190 CLR 225 1997 142 ALR 331

LIU v SECRETARY OF STATE FOR THE HOME DEPT 2005 EWCA CIV 249 2005 1 WLR 2858 2005 INLR 525 2005 102 22 LSG 26

UNITED NATIONS PROTOCOL RELATING TO THE STATUS OF REFUGEES 1967 (NEW YORK PROTOCOL) ART 1A(2)

UNITED NATIONS PROTOCOL RELATING TO THE STATUS OF REFUGEES 1967 (NEW YORK PROTOCOL) ART 1(2)

GOODWIN-GILL THE REFUGEE IN INTERNATIONAL LAW 1983

CANADA (AG) v WARD 1993 ACS NO 74 1993 2 SCR 689 1993 2 RCS 689 1993 103 DLR (4TH) 1

APPLICANT S v MIN FOR IMMIGRATION & MULTICULTURAL AFFAIRS 2003 217 CLR 387 2004 77 ALD 541 2004 206 ALR 242 2004 78 ALJR 854 2004 HCA 25

K v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2007 1 AC 412

ISLAM v SECRETARY OF STATE FOR THE HOME DEPT 1999 2 AC 629 1999 2 WLR 1015 1999 2 AER 545

MSENGI v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP MACMENAMIN 26.5.2006 2006/41/8759 2006 IEHC 241

Asylum - Husband and wife - Chinese nationals - One child policy - Refugee Act 1996 - Alleged fear of persecution on return - Whether part of a particular social group - COI - Credibility findings

Facts The applicants are husband and wife. They are both Chinese nationals. The wife gave birth to a son in secret as the husband at that time was not of the legal minimum age to marry. They subsequently married when he reached the age of 22 and upon registering their marriage it was discovered the wife was pregnant again. The Family Planning Commissioner declared the child must be aborted owing to the strict family planning rules in place in China. The couple subsequently fled and their second son was born in hiding. The wife was forcibly taken to hospital and permanently sterilised. The applicant and his wife were fined a large sum of money in relation to the birth of their children. The enforcers later arrived to sterilise the husband. The couple fled and arrived in Ireland in April 2000. They went undetected until 2005 when they were revealed to have no legal documentation. They applied for asylum and reports were issued pursuant to s. 13 of the Refugee Act 1996. The Commissioner recommended that neither applicant be considered a refugee within the meaning of the Refugee Act 1996. The couple appealed and Country of Origin Information (COI) was submitted in support of their appeal. The Refugee Appeals Tribunal (RAT) upheld the decision of the Commissioner. The couple therefore sought judicial review of the decision. The applicants argued they were part of a particular social group having breached the one child policy in China and said they feared persecution on return relying on Regulation 10(1) (d) of the European Communities (Eligibility for Protection) Regulations 2006.

Held The judge considered the relevant case law ( Cheung v. Canada (Minister of Employment and Immigration) [1993] 2 F.C. 314; Chan v. Canada (Minister of Employment and Immigration) (128) DLR (4 Ed.) 213; Re Z.W.D. (Refugee Appeal No. 3/91, 20/10/1992); A v. Minister for Immigration and Ethnic Affairs [1997] HCA 4; Liu v. Secretary of State for the Home Department [2005] 1 WLR 2852) and concluded the applicant and his wife could be said to be part of a social group defined as people who, contrary to the one child policy in China, have had more than one child without permission. The shared characteristic was that they were parents of more than one child born in China without official permission and this characteristic could not be changed. It was arguable that they would face persecution in the form of forced sterilisation (already carried out on the wife and threatened against the husband), large fines, loss of employment and discriminatory treatment such as discrimination in relation to medical and educational benefits. The judge said the RAT only considered one piece of COI. He said all COI must be considered and reasons must be clearly stated for its rejection. Adverse credibility findings were made against the husband on account of the fact that he did not know how much of the fines remained to paid to the Chinese Government. The RAT was also critical of the fact that the applicants could not provide more information of their journey to Ireland. The judge said he was satisfied there was evidence on which the RAT was entitled to reach adverse credibility findings yet said these related not to the applicant”s core story but to peripheral aspects of their account. The judge quashed the decision of the RAT and directed the matter be referred back to the Tribunal for fresh consideration in light of the COI submitted.

1 1. The applicant and his wife both entered Ireland in April 2000. They both sought asylum in Ireland in 2005. They will be referred to individually as "the husband" and "the wife" in this judgment.

Background

2 2. The applicant and his wife are Chinese nationals. The husband was bom on 13 ^th January, 1977 and the wife was bom on 5 ^th March, 1975. The wife gave birth to a son on 6 ^th August, 1998, in secret, as the child's father, the present applicant, was not then of the minimum age to marry. The wife and her husband were married on 20 ^th January, 1999, by which time, the husband had reached 22 years of age and was lawfully entitled to marry. On registering their marriage, it was discovered that the wife was again pregnant. The family planning commissioner charged with the task of enforcing the stringent family planning rules, informed them that the child must be adopted. The applicant and his wife "did not have the heart to get rid of the child" and went into hiding. Their second son was bom on 1 ^st August, 1999, following which the wife returned home.

3 3. On 24 ^th August, 1999, the wife was forcibly taken to hospital and permanently sterilised by cutting her fallopian tubes. The applicant and his wife were also charged in relation to the birth of their children. They were fined 8,500 Yuan in respect of the unplanned birth before the legal permitted age and 16,600 Yuan in respect of the second birth in the absence of legal permission. Of the total fines, 11,000 Yuan was paid.

4 4. Some short time later, the family planning enforcers returned seeking to take the husband for a sterilisation, whereupon the couple fled to Fuzhou City. They were unable to register with the authorities in Fuzhou or anywhere else without the required documentation and were unable to return to the husband's area to procure the documentation. Their children were left in the care of the husband's parents.

5 5. The applicant and his wife fled China on 15 ^th February, 2000, through the aegis of a smuggling gang. They travelled through different destinations over the course of two months, sometimes by plane and sometimes by car. When not travelling, they were kept out of sight. They became separated in the course of the journey.

6 6. The wife arrived in Ireland on 23 ^rd April, 2000, while the applicant arrived on 28 ^th April, 2000. They lived among the Chinese community and worked in various Chinese restaurants.

7 7. In 2003, their family put them in touch with an agent, a Chinese national, whom they met in Dublin with a view to procuring legal status for the wife in the UK, with the hope that she would in due course be joined by her husband and children. The wife accompanied the agent to the UK on 28 ^th March, 2003, but was detained at the airport. She recalled being fingerprinted and completing a form with the assistance of an interpreter. The agent then immediately brought the wife back to Ireland by boat, his plan having been unsuccessful. In the event of the agent successfully procuring legal status for the wife in the UK he was to be paid €10,000.

8 8. The wife continued working in various Chinese restaurants until detected without identity documents by the gardaí in November 2005. The wife gave evidence at her interview that it was a solicitor who applied for bail and who, having heard their history, advised them to apply for protection in Ireland. The husband stated in his interview that it was friends who suggested that they apply for asylum.

9 9. The applicants submitted their completed questionnaires on 7 ^th December, 2005, wherein they claimed that if returned to China they would be made an example of by reason of their early marriage and early childbirth; that they would be exposed to wide publicity and regarded as monsters; that the husband would be forcibly sterilised; and that their children would be adversely affected. In response to the query about disability or medical conditions the wife stated that conjugal relations caused her pain as a result of...