On v Refugee Appeals Tribunal

JurisdictionIreland
JudgeMs. Justice O'Regan
Judgment Date17 January 2017
Neutral Citation[2017] IEHC 13
Date17 January 2017
CourtHigh Court
Docket Number[2016 No. 320 J.R.] [2016 No. 422 J.R.]

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

AND IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

BETWEEN
O.N.
APPLICANT
AND
REFUGEE APPEALS TRIBUNAL
MINISTER FOR JUSTICE AND EQUALITY
ATTORNEY GENERAL
IRELAND
RESPONDENTS
BETWEEN
I.N.
APPLICANT
AND
REFUGEE APPEALS TRIBUNAL
MINISTER FOR JUSTICE AND EQUALITY
ATTORNEY GENERAL
IRELAND
RESPONDENTS

[2017] IEHC 13

O'Regan J.

[2016 No. 320 J.R.]

[2016 No. 422 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – The Refugee Act 1996 – The Illegal Immigrants (Trafficking) Act 2000 – Council Directive 2004/83/EC – The European Union (Subsidiary Protection) Regulations, 2013 – Standard of proof

Facts: The key issue in both the sets of independent proceedings related to the application of standard of proof by the first respondent to the past events and the assessment of real risk. The applicants in both the cases argued that the standard of proof as to the acceptance of past events was the same as the standard of proof required for the assessment of real risk, which was on or about 30% of a ‘reasonable degree of likelihood.’ The respondents argued that different standards applied in different jurisdictions and thus, a uniform standard could not be applied to assess the relevant applications.

Ms. Justice O'Regan held that the appropriate standard to apply was the balance of probabilities standard coupled with the benefit of doubt standard in appropriate cases as contemplated by art. 3 of the Council Directive 2004/83/EC. The Court found that both the principle of equivalence and the principle of effectiveness were safeguarded by the balance of probabilities standard. The Court took into consideration the tests formulated by the United Kingdom, the United States, Canada, the EU decisions, and UNHCR.

JUDGMENT of Ms. Justice O'Regan delivered on the 17th day of January, 2017
Issues
1

Although in the case of O.N. additional issues arise, nevertheless, the within matter has proceeded before the Court on the basis of a single issue as to whether or not the standard of proof applied by the first named respondent in each of the cases above, being an application for refugee status in the case of O.N. and being an application for subsidiary protection in the case of I.N. was correct.

2

The applicants contend that the standard of proof as to fact finding and/or the acceptance of the history of events as disclosed by an individual applicant is one and the same as the standard of proof required in the assessment of real risk, namely, a standard of in or about 30 %, on the basis of a ‘reasonable degree of likelihood’.

3

The respondents contend that in fact two different standards apply and accept that insofar as the standard of proof in respect of future real risk is concerned, that the standard contended for by the applicants, namely in or about 30 %, is acceptable. However, insofar as the standard of proof in respect of fact finding and/or the acceptance of the history of events as disclosed by an individual applicant is concerned, the respondents contend that the correct standard is that of the balance of probabilities, coupled with the affording to the applicant the benefit of the doubt, in appropriate circumstances. In addition, the respondents refer to the fact that some facts which may have been discounted in a fact finding exercise may nevertheless, depending upon the precise impact of the finding of lack of credibility, be taken into account in the evaluation of the risk of future persecution.

4

All parties accept that the burden that might apply in respect of an application for refugee status will be the same as the burden which will apply in respect of an application for subsidiary protection.

Brief Background on the Applicants
5

O.N. was born in September, 1984 and is a Zimbabwean national. O.N. arrived in Ireland on 6th December, 2013 under a false South African passport. Both of his parents were political and died in January, 2007 and April, 2007 respectively. He claimed that he was tortured and raped and subsequently kept a low profile and avoided coming to the attention of Zanu-PF. However, he believed that immediately in advance of his flight to Ireland his presence in Plumtree was detected by Zanu-PF and therefore he fled. O.N. made an application for refugee status on 9th December, 2013 which was refused by the Commissioner on or about 17th January, 2014 and communicated to him on or about 23rd January, 2014. This decision was appealed on 4th February, 2014, an oral hearing was had on 5th January, 2016 and the application was ultimately rejected on 5th April, 2016 which was communicated to him on 7th April, 2016.

6

O.N. swore an affidavit bearing date 6th May, 2016 and a statement of grounds is dated 9th May, 2016. Ultimately leave to apply by way of judicial review to quash the order of the first named respondent of 5th April, 2016 was afforded on 20th June, 2016 including on the ground that the Tribunal applied an incorrect standard of proof.

7

I.N. is from Western Sahara and was born in May, 1984 and arrived in Ireland on 2nd October, 2011. She claims that in 2005 she suffered severe burns while at a protest. She was subsequently imprisoned on 15th December, 2010 for a period of a week and she was released on 21st December, 2010, following her attendance at another protest.

8

Following her arrival in Ireland, I.N. made an application for refugee status which was refused on 15th May, 2012. She subsequently made an application for subsidiary protection on 15th May, 2012. An interview was undertaken on 10th September, 2014 and on 26th February, 2015 her application was refused. I.N. appealed this refusal on 16th March, 2015 and as a consequence there was an oral hearing on 25th February, 2016. Her claim was rejected on 29th March, 2016 which was advised to her on either the 5th or 8th April, 2016.

9

I.N. swore an affidavit on 14th June, 2016 and her statement of grounds is dated 12th August, 2016. She claims that an incorrect standard of proof was applied. She secured leave on 27th June, 2016 which order was perfected on 13th July, 2016 and subsequently a notice of motion issued on 12th August, 2016.

10

Although I.N. in her appeal to the respondent did not raise the issue of the incorrect standard of proof, nevertheless, the respondents do not wish to rely on this fact in resisting her claim. Furthermore in her statement of grounds it is suggested that the Commissioner applied the correct standard of proof. Such portion of her statement of grounds was included in error.

11

By way of preliminary order therefore I afford I.N. leave to amend her statement of grounds to merely state that the first named respondent applied the incorrect standard of proof.

12

Insofar as there is a delay in maintaining the within judicial review application I have indicated to the parties that if I find that an incorrect standard of proof was applied then I will extend time.

Brief Synopsis of the Parties' Respective Submissions
13

The applicant argues that effectively a ‘reasonable degree of likelihood’ test would be appropriate and in this regard refers to the cases of -

a. R (Sivakumuran) v. Secretary of State for the Home Department [1988] AC 958

b. I.N.S. v. Cardozo-Fonseca [1987] 407 US 407

c. The Minister for Immigration and Multicultural Affairs v. Rajalingam [1999] F.C.A. 719 (although the applicant suggests an effective shy-away from the second principle identified by Sackville J.)

d. the judgment of Brook L.J. in Karanakaran v. Secretary of State for the Home Department [2000] 3 All ER 449

e. F.A. v. Minister for Justice [2002] 5 I.C.L.M.D. 108

f. B.P. v. Minister for Justice & Ors. [2003] 4 I.R. 200

g. Da Silveira v. Refugee Appeals Tribunal [2004] IEHC 436.

The applicant suggests that the judgment of Herbert J. in D.H. v. Refugee Applications Commissioner [2004] IEHC 95 should be considered as an outlier.

14

The respondents argue that different standards are applied in different jurisdictions and therefore a uniform standard as contended for by the applicant is not possible. The respondents contend that the UK authorities are not as persuasive as they might initially seem by reason of the fact that the House of Lords in the case of Karanakaran accepted the decision of the majority in the matter of Kaja [1994] UKIAT 11038 as valid in circumstances where the Secretary of State did not argue against the majority decision. Furthermore, the respondents argue that because of the EU decision of M.M. v. Minister for Justice ( Case C-277/11) and the case of Danqua v. Minister for Justice and Equality ( Case C-429/15) all prior decisions must be reviewed and treated with caution, as the Court of Justice has found that the relevant assessment takes place in a two separate stage process. This is a fundamentally different approach to the approach taken by the Tribunal in Kaja which held that it was a unitary process, and in addition, no consideration was afforded as to the impact and/or scope of the ‘benefit of the doubt’ application.

Relevant Legislation
15

The United Nations Convention on Human Rights, 1951, as amended by the 1967 Protocol, provides at Article 1A(2) that a refugee is any person who:-

‘owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’

16

The Refugee Act 1996 came into law on 26th June, 1996 and was an act to give effect to the status of refugees...

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