Pantsulaya v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 21 October 2003
• Neutral Citation: 2003 WJSC-HC 10658
• Court: High Court
• Docket Number: [2002 No. 760 JR]
• Date: 21 October 2003

2003 WJSC-HC 10658

THE HIGH COURT

[Record No. 760JR/2002]

PANTSULAYA v. MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL

JUDICIAL REVIEW

IN THE MATTER OF THE ILLEGAL IMMIGRANTS TRAFFICKING ACT, 2000, SECTION 5

AND

IN THE MATTER OF THE REFUGEE ACT, 1996 AS AMENDED

BETWEEN

BEZHAM PANTSULAYA

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

FIRST NAMED RESPONDENT

AND

TRIBUNAL MEMBER OF THE REFUGEE APPEALS TRIBUNAL

SECOND NAMED RESPONDENT

Citations:

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

RSC O.84 r21(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

REFUGEE ACT 1996 S2

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX-PARTE SIVAKUMARAN 1988 2 AER 193

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 1

PROTOCOL ON THE STATUS OF REFUGEES 1967

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE ROBINSON 1998 QB 929

KARANAKARAN V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 3 AER 449

A (E) V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2003 EWCA CIV 1032

CANAJ V SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 EWCA CIV 782 2001 INLR 342

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992

ZGNATEV V MIN FOR JUSTICE UNREP FINNEGAN 29.3.2001 2002/29/7601

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 1(A)(2)

ADAN V SECRETARY OF STATE FOR THE HOME DEPARTMENT 1998 2 AER 453 1999 1 AC 293

HATHAWAY THE LAW OF REFUGEE STATUS 1991 134

THIRUNAVUKKARASU V CANADA (MIN OF EMPLOYMENT & IMMIGRATION) 109 DLR (4TH) 682

A (F) V MIN JUSTICE UNREP O'CAOIMH 21.12.2001 2001/15/4133

Synopsis:

IMMIGRATION

Asylum

Judicial review - Leave - Internal relocation - Standard of proof - Persecution emanating from state - Illegal Immigrants Trafficking Act, 2002 section 5 (2002/760 - Gilligan J - 21/10/2003)

Pantsulaya v Minister for Justice, Equality and Law Reform - [2003] 4 IR 200

The applicant applied for leave to apply for judicial review seeking inter alia an order quashing the decision of the Refugee Appeals Tribunal not to grant the applicant refugee status. The applicant contended inter alia that the Tribunal erred in law in and acted unreasonably in criticising the applicant for not finding an alternative place to live in his home state. The applicant contended that the persecution emanated from the State and therefore that internal relocation was not an option. The applicant further contended that the Tribunal failed to apply the correct standard of proof, namely reasonable possibility of persecution

Held by Gilligan J. in granting leave to apply that the applicant had established substantial grounds. The Tribunal did not apply the objective limb of the test for refugee status and paid insufficient regard to the reality that internal relocation is generally not an alternative to refugee status where the persecution complained of emanates from the State. There were not substantial grounds, however, for contending that the Tribunal failed to apply the correct standard of proof.

1 JUDGMENT of Mr. Justice Gilligan delivered on the 21 day of October 2003.

2 The plaintiff in these proceedings is a national of Georgia. He sought asylum in Ireland on or about the 17 ^th day of December, 2001.

3 The applicant applies for leave to apply for judicial review in respect of the following reliefs:

4 1. An order of certiorari sending forward to this Honourable Court for the purpose of being quashed.

5 (a) The decision of the second named respondent not to grant the applicant refugee status dated the 31 ^st October, 2002 and notified to the applicant by letter dated the 31 ^st October, 2002.

6 (b) A declaration that the decision of the Desmond A. Zaidan, dated the 2 ^nd day of October, 2002 is ultra vires the second named respondent.

7 (c) A declaration that the decision of Desmond A. Zaidan, dated the 2 ^nd day of October, 2002, is void due to unreasonableness and or irrationality.

8 (d) A declaration that the decision of Desmond A. Zaidan, dated the 2 ^nd day of October, 2002 was arrived at in breach of fair procedures and the principles of natural and constitutional justice.

9 (e) A declaration that the application for asylum of the applicant herein be submitted for full consideration under the substantive procedures pursuant to ss. 11 and 13 of the Refugee Act, 1996(as amended).

10 (f) An order of mandamus compelling the first named respondent to refer the applicant's application for asylum for full consideration under the substantive procedures of the Refugee Act, 1996(as amended).

11 (g) An injunction restraining the first named defendant herein from taking any further steps in relation to the applicant herein pending the determination of these proceedings.

12 (h) Where necessary, an Order pursuant to Order 84, Rule 21(1) of the Rules of the Superior Courts, 1986 and s. 5(2)a of the Illegal Immigrants (Trafficking) Act, 2000, extending the time within which this application be made.

13 (i) Such further and other relief as to this Honourable Court shall deem meet.

14 (j) An Order providing for an award of the costs of these proceedings to the applicant

15 The grounds upon which the said reliefs are sought are as follows:

16 1. The applicant herein is a national of Georgia and sought asylum in Ireland in or around the 17 ^th of December, 2001. The applicant's application for refugee status is based on his fear of persecution from the Georgian Authorities. The applicant went to meetings of the opposition and at one of these meetings he met Mikhail Todua, a man who worked gathering evidence for the controversial "60 Minutes" a TV programme which systematically gathered evidence of corruption among senior government and law enforcement officials. The applicant started working with Mikhail Todua, gathering this evidence. The applicant was harassed and beaten by the Georgian police because of these activities and they offered him an ultimatum: become a police informer or be framed for heroin possession. The applicant was forced to agree to inform an order to secure his exit from the police station. However after he got on to his uncle who was a colonel in the police he managed to negotiate on his behalf that the charges would be dropped in exchange for the applicant ceasing his activities with Mikhail Todua. However the applicant subsequently resumed working for Mr. Todua in that he went on a job after Mr. Todua contacted him and said it was important. The applicant was filming when a car pulled up and shots were fired at him. The applicant believes that the police are the persecutors. The applicant did not return home but hid at friends" houses. When the applicant learned that someone had entered and searched his apartment taking his driving licence and that his sister had been threatened on the phone he left the country.

17 2. The second named respondent wrote his decision on the applicant's claim on the 2 ^nd day of October, 2002, a copy of which is exhibited in the grounding affidavit.

18 3. In the papers and documents which are exhibited in the grounding affidavit, the second named respondent herein states as follows at page 4 of his decision dated the 2nd of October, 2002 in relation to the applicant:

"...The applicant did not make any attempt to find an alternative place to live within Georgia.

Whilst he may have had some problems with the police in Tibilisi where he claimed to have been arrested twice, his reason for not finding an alternative place to live in Georgia because he felt he would continue to experience problems if he had found an alternative place, is implausible."

19 4. The second named respondent erred in law and or misdirected himself in law in respect of the applicant's claim for asylum having regard to the provisions of the Refugee Act, 1996(as amended). In particular, the decision did not take into account the fact that the persecution emanated from the State and in these circumstances internal relocation is not an option.

20 5. In so far as the second named respondent considered the possibility of internal relocation for the applicant, he acted ultra vires in arriving at his decision.

21 6. The second named respondent failed to have regard to a material consideration, namely whether it would be unduly harsh for the applicant to internally relocate in light of the fact that the persecution of the applicant was by a state agency.

22 7. The second named respondent made a fundamental error of law in interpreting the Refugee Act, 1996(as amended) by excluding from the definition of refugee in s. 2 of the Refugee Act, 1996(as amended), the possibility of the applicant being persecuted by a state agency and therefore being unable to avail of the option of internal relocation. In so deciding the respondents made a fundamental error of law going to the heart of his jurisdiction to arrive at a valid decision.

23 8. The applicant submits that he had a legitimate expectation that s. 2 of the Refugee Act, 1996(as amended) would be interpreted in such a manner as to preclude the operation of internal relocation where persecution is by a state agency.

24 9. The decision of the second named respondent is so unreasonable and in breach of the principles of natural and constitutional justice that it cannot have been within the intention of the Oireachtas that s. 2 would have been interpreted in such a manner and the decision of second named respondent herein is unreasonable and perverse having regard to s. 2 of the Refugee Act, 1996(as amended).

25 10. In the papers and documents which are exhibited in the grounding affidavit, the second named respondent herein states as follows at page 4 of his decision dated the 2 ^nd day of October, 2002 in relation to the applicant.

"... I have considered all the facts in this case and I am not satisfied that the applicant met the standard of proof as set out in the Sivakumaran case.

I cannot accept that...