N.G. v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 05 September 2014
• Neutral Citation: [2014] IEHC 428
• Court: High Court
• Date: 05 September 2014

[2014] IEHC 428

THE HIGH COURT

[No. 717 J.R./2009]

G (N) (a minor) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

N.G. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND L.G.)

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S5

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

H (N) & D (T) v MIN FOR JUSTICE 2008 4 IR 452 2007/27/5589 2007 IEHC 277

GAVRYLYUK & BENSAADA v MIN FOR JUSTICE 2011 2 IR 44 2008/26/5682 2008 IEHC 321

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S2

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

Refugee Appeal Tribunal – Fear of Persecution – Child Applicant – Application for leave to apply for Judicial Review – Indirect Persecution – Convention Guidelines – Asylum

The facts of this case centered around an child applicant of Ukrainian nationality born in Ireland in 2007 and her parents, also Ukrainian Nationals, who had been rejected asylum in Ireland by the Refugee Appeals Tribunal. The Refugee Appeals Tribunal decided that the parents had not proven sufficient grounds to remain in Ireland citing a fear of persecution upon return to the Ukraine by an allegedly corrupt tax enforcement agency. Claiming that the child would be a victim of indirect state persecution the mother acting on the child”s behalf submitted an asylum claim. The Tribunal subsequently rejected of the parents” asylum applications on the same grounds and concluded that the child applicant had failed to establish a nexus to the Convention. Most recently the child applicant”s representation applied for leave to apply for Judicial Review by an order of Certiorari against this decision of the Refugee Court of appeals. The issue was heard before McDermott J. in the High Court.

On Behalf of the child applicant it was submitted that Tribunal erred in law in finding that the issue of indirect persecution was a matter for the Minister to consider and failed to adjudicate on this aspect of the case, that the tribunal erred in law in determining that the applicant”s claim did not have a Convention nexus and changes in legislative regulations which now indicate that the parents could qualify for refugee status. McDermott J. responded to the submissions, determining that the Minister had already rejected the claim for asylum of the parents so an vicarious claim would fall under the same ministerial decision, any connection with the Convention was too general and imprecise to give rise to a ground for relief and the regulation changes had little relevance to this case. In conclusion McDermott J. was not satisfied that the applicant has established substantial grounds upon which to grant leave to apply for judicial review.

1 1. This is an application seeking an order of certiorari in respect of the decision of the first named respondent ("the Tribunal") dated 30 ^th April, 2009, and notified by letter of 16 ^th June to the applicant.

Background

2 2. The applicant is a Ukrainian national born in Cork on 11 ^th June, 2007. She has one brother born on 21 ^st June, 1984, who also resides in Ireland. Both of the applicant's parents are Ukrainian nationals, the father having arrived in Ireland in 2000, and her mother in 2001.

3 3. Following his arrival in Ireland on 18 ^th December, 2000, the applicant's father claimed asylum. His application was based on his experiences of alleged corruption in Ukraine. He claimed that he had his own business but that corruption was rampant. In particular, he claimed that he was incorrectly fined and threatened with imprisonment by taxation officials if he did not pay the fine, and that the maximum penalty for the offence with which he could be charged is five years imprisonment. This application was rejected by ORAC which formed the view that he was seeking to avoid prosecution and not persecution. No issues were raised in respect of the credibility of the father's claim or his account of what had occurred in Ukraine. A recommendation that asylum be refused was based on the fact that there was no Convention nexus to his fear of being imprisoned. This decision was appealed to the Refugee Appeals Tribunal. His claim was summarised by the Tribunal as follows:-

"In January, 1999 the local tax authorities decided to audit his books. Some documents were taken for investigation including expense sheets. As a result of the investigation, the tax police instituted proceedings against him for nonpayment of tax. A criminal case was initiated in January, 1999 and there was a charge that (he) had submitted tax returns that showed a significant under statement of gross income earned. It was also alleged that he increased the amount of his expenses by including fictitious documents relating to the purchase of certain equipment and that this resulted in a further reduction of income tax due for payment. There was an appeal to the courts. A court auditor was ordered to check the returns and the finding was favourable to the applicant. An amount was outstanding but was significantly lower than the figures produced by the tax police. Under Ukrainian legislation, the tax police were entitled to investigate the matter further and as a result of their second investigation they found that the amount owing was significantly greater than the original figure they had arrived at. This was due to the fact that they had compiled interest and had not allowed for any stay on interest during the course of the appeal. (He) felt that this decision was done out of spite as he had failed to make a contribution towards the building of a new police station in the town. He now faces the possibility of paying a very substantial sum of money and also there is a possibility of a five year prison sentence for failing to make the payments. A letter of complaint was written to the Leninsky District outlining a grievance against the tax police. The complaint was referred to Regional Public Prosecutor's Office and that office declined to accept the complaint and referred it back to the original local court in Leninsky. (He) decided that there was connivance between the police, prosecutors and court officials."

4 4. The Tribunal concluded in respect of this aspect of the father's claim that the Regional Public Prosecutors Office interpreted Ukrainian legislation as requiring the hearing of a complaint against the tax police to be heard in a local as opposed to a regional court. The applicant had the opportunity of pursuing the complaint and the possibility that he would get some further opportunity to contest what he regarded as a totally unfair and biased assessment by the local tax police. The Tribunal stated:-

"If that is the case, and it would appear to be the case as made at the appeal, there is nothing to suggest that the appeal has any nexus with the Geneva Convention on the Status of Refugees."

5 5. The father also submitted, as part of his appeal, that as a person of Romanian origin, he had changed his surname to a Ukrainian name. He was of the opinion that the police were aware of his Romanian origins which may have given rise to a bias against him. The Tribunal concluded that there was nothing whatever in the evidence to support this claim.

6 6. The applicant's mother, L.G., remained in Ukraine for a period following her husband's departure. She complained that the tax police continued to pursue her and threaten her with imprisonment by reason of her husband's tax defaults. She arrived in the state in November, 2001 and applied for asylum. ORAC rejected the application which was substantially based on the same facts as those advanced by her husband. It concluded that L.G.'s reason for leaving the Ukraine was more closely related to a fear of prosecution than of persecution, though her recollection of events in Ukraine was found to be generally credible. This refusal was not appealed to the Tribunal.

7 7. The s. 13(1) report concerning L.G's case concludes that her claim is based on problems which she and her husband had in Ukraine concerning tax arrears which the tax police claimed were owed to the state. The report addresses the question whether the applicant suffered persecution on any of the 1951 Convention grounds. It was noted that though L.G. claimed to have been involved with the local communist party prior to 1990 and that her husband was of Romanian origin, it did not appear that these reasons motivated the tax police to pursue L.G. and her husband. She was not targeted because of her race, religion, nationality,...