S.J.L. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ryan P.
• Judgment Date: 26 February 2016
• Neutral Citation: [2016] IECA 47
• Court: Court of Appeal (Ireland)
• Docket Number: [C.A. Nos. 79 & 80 of 2015],[2015 No. 79] [2015 No. 80]
• Date: 26 February 2016

[2016] IECA 47

THE COURT OF APPEAL

Ryan P.

[2015 No. 79]

[2015 No. 80]

The President

Peart J.

Hogan J.

BETWEEN

SJL

AND

LRC

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELAND

APPELLANTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

Immigration and Asylum - s. 2 of the Refugee Act 1996, s. 5(3) of the Illegal Immigrants (Trafficking) Act 2000 - Refugee Appeals Tribunal - Credibility - Social Group - Article 10(1)(d) of the Qualification Directive ? Regulation 10 of the Irish Regulations

Facts: The applicants in this case, a husband and wife, were Chinese nationals who applied for asylum. The couple had been charged and fined by Chinese authorities in respect of the unplanned birth of their first child before the husband had reached the permitted age and in respect of the birth of their second child which was contrary to legal permission. The wife had been permanently sterilised and the Family Planning Authorities also sought to take the husband for sterilisation. This is when the couple fled to Ireland. They claimed that if they were returned to China the authorities would make an example of them because of their early marriage and early birth of children, they would be exposed to wide publicity, regarded as outcasts, the husband would be forcibly sterilised and the children would be adversely affected.

The Refugee Tribunal determined that the couple should not be considered refugees because their applications lacked credibility. Also, they could not be considered as members of a particular social group within the meaning of s. 2 of the Refugee Act 1996 as amended, and therefore failed to establish a Convention reason on which they could claim asylum. The case was appealed to the High Court which quashed the decision of the Refugee Appeals Tribunal. The High Court granted leave for judicial review pursuant to s. 5(3) of the Illegal Immigrants (Trafficking) Act 2000, certifying that the judgments in the two cases involved points of law of exceptional public importance and that it was in the public interest that the appeals be taken.

The State defendants brought appeals against the entirety of the High Court decisions. They contended that the trial judge applied the test of arguability in error and that the applicants did not form part of a particular social group within the meaning of s. 2 of the Refugee Act 1996, Article 10(1)(d) of the Qualification Directive or Regulation 10 of the Irish Regulations.

Held by Ryan P: The court determined that the trial judge was in error in applying the test of arguablity. However, the court could not simply allow the appeal on that ground. It examined whether the applicants could be considered members of a particular social group that faced persecution. After considering various authorities on the matter, the court concluded that the definition of a particular social group should be interpreted broadly. The court stated that a particular social group may be defined as comprising of persons who breach an unjust law and are exposed to such punishment or to social pariah status by the surrounding society. The court therefore dismissed the appeal by the State appellants and remitted the matter to the Tribunal for fresh consideration. Finally, the court determined that the High Court had been correct to grant judicial review and reconsideration of these applications by the Tribunal on grounds of the adverse credibility findings. The appeal was dismissed.

JUDGMENT of the President delivered on 26th February 2016

1 The personal litigants named above as applicants for asylum are husband and wife who are Chinese nationals who come from Fujian province. Their account as detailed in the information they supplied in the application process is that the wife was born in 1975 and the husband in 1977. She gave birth to a son in August 1998, in secret, because the father was not then at the minimum age to marry which was 22 years. They married in January 1999, when he had reached the minimum age. On registering the marriage, it was discovered that the wife was again pregnant and the Family Planning Commissioner informed them that the child must be aborted. They went into hiding and their second son was born on 1st August 1999, following which the wife returned home. On 24th August 1999, the wife was forcibly taken to hospital and was permanently sterilised by cutting her fallopian tubes. The couple were also charged in relation to the births and 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 which was contrary to legal permission. Some 11,000 Yuan was paid. The Family Planning authorities returned, seeking to take the husband for sterilisation, whereupon the couple fled to Fuzhou city. They could not register with the authorities there without the required documentation and were unable even to return to the husband's area to procure the documents. They left their children in the care of the husband's parents.

2 The wife and husband fled China on 15th February 2000 through the agency of a smuggling gang. They travelled through different destinations over the course of two months, sometimes by plane and sometimes by car. They became separated in the course of the journey. The wife arrived in Ireland on 23rd April 2000, while the husband arrived on 28th April 2000. They lived among the Chinese community and worked in various Chinese restaurants. 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 United Kingdom, hoping that she would in due course be joined by her husband and children. She accompanied the agent to the United Kingdom on 28th March 2003, but she 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 since his plan was unsuccessful. If he had succeeded in procuring legal status, he would receive €10,000. The couple continued working in various Chinese restaurants until detected by the Gardaí in November 2005. They then applied for asylum. They submitted completed questionnaires in December 2005 in which they claimed that if they were returned to China, the authorities would make an example of them because of their early marriage and early birth of children, they would be exposed to wide publicity and regarded as outcasts, the husband would be forcibly sterilised and their children would be adversely affected. The wife responded to a query about her medical condition, saying that conjugal relations caused her pain because of scarring from the sterilisation operation.

3 The applicants were duly interviewed in accordance with asylum process and there followed s. 13 decisions. In their submissions, the couple complain that the s. 13 decisions contained adverse findings about credibility, despite the fact that the officers who reported had not been the persons who conducted the interviews. The s. 13 decision in each case was that the applicants should not be considered to be refugees. Their applications lacked credibility and the country of origin information did not support the claims. There were inconsistencies and discrepancies. There was a finding in each case pursuant to s. 13(6)(c) of the Refugee Act 1996, that the husband and wife had not applied for asylum on arrival in Ireland, and in the wife's case, there was an additional point that she had actually applied for asylum in the United Kingdom. The consequence of these findings was that any appeal in respect of the s. 13 decisions was on the papers only and did not involve an oral hearing.

4 Section 13 (6) sets out the findings the Commissioner can make in respect of declaring the applicant not to be a refugee and s. 13(6)(c) and (d) of the Act are as follows:-

'(c) That the applicant, without reasonable cause, failed to make an application as soon as reasonably practicable after arrival in the State;

(d) the applicant had lodged a prior application for asylum in another state party to the Geneva Convention (whether or not that application had been determined, granted or rejected)'

5 The husband and wife each appealed against these decisions. The couple's solicitors submitted legal argument and furnished country of origin reports. They offered explanations for inconsistencies in the evidence and discrepancies and country of origin information then and later, made legal submissions and offered argument and explanations in respect of adverse credibility findings contained in the s. 13 reports.

6 The Tribunal's decision in both cases is dated 27th January 2009. The Tribunal repeated and upheld the credibility findings of the Commissioner. The Tribunal did not accept that the husband's stated fear that he would be forcibly sterilised, if returned, was well-founded by reference to country of origin information relating particularly to his home province and also generally in regard to the position in China. The Tribunal held that the husband and wife could not be considered members of a particular social group within the meaning of s. 2 of the Refugee Act 1996 as amended, and they had therefore failed to establish a Convention reason on which they could rely on claiming asylum. In reaching this conclusion, the Tribunal referred to a number of legal authorities and concluded as follows:

'Coherent formulation of this particular group is difficult and there is nothing to link couples who oppose the Government's policy so as to create a perception that they constitute a particular social group. If such a group existed it would appear that it would be defined solely by the fact that its members face a particular form of persecutory treatment and it is well...