S.Q v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Paul McDermott
• Judgment Date: 28 February 2013
• Neutral Citation: [2013] IEHC 94
• Court: High Court
• Docket Number: [No. 1445 J.R./2008]
• Date: 28 February 2013

[2013] IEHC 94

THE HIGH COURT

[No. 1445 J.R./2008]

Q (S) v Min for Justice & Refugee Appeals Tribunal (Linehan)

JUDICIAL REVIEW

IN THE MATTER OF THE IMMIGRATION ACT 1999, THE REFUGEE ACT 1996, AND SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 BETWEEN

S. Q.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER DENIS LINEHAN)

RESPONDENTS

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

EEC DIR 2004/83

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S16

REFUGEE ACT (APPEALS) REGS 2006 SI 424/2003

SYRIAN PENAL CODE 1949 ART 520

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S16(C)

REFUGEE ACT 1996 S16(D)

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

H J (IRAN) v SSHD 2011 2 AER 591 2011 1 AC 596 2010 UKSC 31

I (S) v RAT UNREP FINLAY-GEOGHEGAN 11.5.2007 2007/29/5959 2007 IEHC 165

NORRIS v AG 1988 ECHR 22

IMMIGRATION

Asylum

Application for leave to seek judicial review - Certiorari - Refusal of application for refugee status - Syria - Allegation that decision made ultra vires and in breach of fair procedures - Alleged fear of persecution for status as homosexual man and failed asylum seeker - Credibility - Evidence - Submission of presenting officer to Tribunal that he could not stand over s.13 report and that applicant was telling truth - Determination of Tribunal stated that report had been resubmitted - Whether error of fact on part of Tribunal - Whether failure by Tribunal to have regard to submissions - Whether substantial grounds established - J(H) (Iran) v Home Secretary [2010] UKSC 31, [2011] 1 AC 596 followed - I(S) v RAT (Unrep, Finlay Geoghegan J, 11/5/2007); Norris v Attorney General [1988] ECHR 22 and Dudgeon v United Kingdom (1982) 4 EHRR 149 considered - Refugee Act 1996 (Appeals) Regulations (SI 424/2003) - Refugee Act 1996 (No 17), ss 2 and 16 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(2)(b) - Leave granted (2008/1445JR - McDermott J - 28/2/2013) [2013] IEHC 94

Q(S) v Minister for Justice, Equality and Law Reform

Facts: The applicant was a Syrian national who applied for refugee status upon entering the country on the 7^th November 2006. It was his claim that as a homosexual, he was a member of a particular social group. He stated that because of his sexual orientation, he would be at risk of persecution if returned to his native country due to discriminative legislation and social practices that existed there. In his application, he averred that he left Syria after he was discovered engaging in homosexual activities in the family apartment by his father and then spending approximately three months in hiding in a nearby village as his father enlisted the local police to find locate him. The applicant also claimed that he could potentially face persecution if returned due to his status as a failed asylum seeker with there being significant country of origin information purporting this fact.

The application was refused by the Refugee Applications Commissioner and on appeal on the basis of his credibility. It was held that it was unlikely that the applicant would have engaged in homosexual practices in the family apartment given the high risk of being discovered. It was also held that relocation was a possibility as he had lived in a different area of Syria for three months without difficulty. The applicant made an application seeking leave to apply for judicial review to challenge the decision on the basis that the applicant”s fear of persecution as a homosexual was not given proper consideration. It was also claimed that the tribunal member who dealt with the appeal did not give proper regard to the position of the presenting officer for the Refugee Applications Commissioner therefore leading to inaccuracies in the ultimate decision. It was finally contended that the tribunal member had failed to consider whether the applicant would face persecution as a failed asylum seeker if returned to Syria in any meaningful way.

Held by McDermott J that the test laid out in H.J. (Iran) v. SSHD [2012] UKSC 31 was appropriate in the circumstances where it was stated that a court should have regard to whether an applicant is actually homosexual, whether they would likely face persecution in their country of origin if they lived an openly homosexual lifestyle, and what the applicant would do if returned to his country of origin. If the applicant intended to live an openly homosexual lifestyle and was likely to face persecution for doing so, then a well founded fear of persecution would exist even if the applicant could avoid this by keeping his sexual orientation discreet. The applicant had made his intention clear throughout the application process that he wished to live an openly homosexual lifestyle. It was also clear that the applicant could face imprisonment if returned to Syria under the legislation there. On that basis, it was held that the applicant could potentially have a well founded fear of persecution. Leave to apply for judicial review was therefore granted.

Leave to apply for judicial review was also granted on the basis that the tribunal member had failed to give proper regard to the position of the presenting officer and whether the applicant would face persecution if returned to Syria as a result of his status as a failed asylum seeker.

Leave to apply for judicial review granted

Mr. Justice Paul McDermott

1 This is an application for leave to apply for judicial review in which the applicant seeks an order ofcertiorari quashing the decision of the first named respondent as notified by letter of 1.8^th November, 2008, refusing the applicant's application for refugee status and the recommendation of the tribunal member of the 10^th November, 2008. The applicant also seeks a declaration that the first named respondent's decision of 18^th November, 2008, and the recommendation of the tribunal member of 10^th November, 2008, are ultra vires and made in breach of the applicant's rights to fair procedures and natural and constitutional justice and in breach of S.I. No. 518 of 2006 and/or EU Directive 2004/83.

2 A number of grounds were set out in the statement of grounds seeking leave to apply for judicial review at paras. 5A to H inclusive. The argument was confined at the hearing to grounds which the court summarises as follows:-

3 (1) The tribunal member failed to consider the applicant's fear of persecution as a homosexual in Syria with particular reference to societal and non-state agent discrimination against him and denial to him because of his homosexuality of basic and fundamental rights and that he would as a homosexual be obliged to conceal his true sexual orientation.

4 (2) The tribunal member in the assessment and in the adjudication process erred in law and actedultra vires s. 2 and s. 16 of the Refugee Act 1996, and in breach of the Refugee Act (Appeals) Regulations ( S.I. 424 of 2003) and in breach of the applicant's right to fair procedures and natural and constitutional justice in that (inter alia):-

5 (i) the decision contained errors of fact and inaccuracies with respect to what occurred at the hearing with particular reference to the position adopted by the Commissioner (presenting officer at the hearing) and with respect to the observations, submissions and representations made by the Commissioner at the appeal hearing;

6 (ii) The tribunal member failed to have regard for and/or consider the position adopted by the Commissioner and the representations and observations made by the Commissioner at the hearing;

7 (iii) the conclusions of the tribunal member concerning the applicant's credibility were unreasonable, irrational and contrary to the material and information that was before the tribunal member.

8 (3) The tribunal member failed to consider in any proper and meaningful way a number of previous decisions of the tribunal which had been submitted in support of the applicant's case. It thereby disregarded the principle of equality of treatment and the requirement for consistency in the decision making process.

9 (4) The tribunal member erred in law and actedultra vires s. 2 and s. 16 of the Refugee Act 1996, in that he failed to address or determine the issue of the applicant's fear of persecution as a homosexual refouled following a failed asylum application to Syria.

10 3. These grounds were formulated in the following circumstances.

11 4. The applicant is a Syrian national born on 27^th March, 1976, who arrived in the State on 7^th November, 2006. He had previously resided in Damascus and had been educated to third level, graduating in 1999 with a degree in economics from the University of Damascus. He was employed between 2000 and 2006 as an administrative worker in a Syrian company. He is single and resided for most of his life in the family home with his father and mother. He had two younger siblings. Following his arrival in Ireland he made an application for refugee status on 8^th November, 2006. He completed and filed an ASY1 form and questionnaire on 13^th November, 2006. His claim for refugee status was based on his claim of a fear of persecution as a member of a particular social group comprising homosexuals and further, he claimed that if refused asylum, he would be subject to persecution on his return to Syria if refouled, particularly, having regard to his status as a homosexual and potentially as a member of an identifiable social group of failed asylum seekers. He claimed that homosexuals are subject to significant levels of discrimination, stigma and denial of human rights as a result of the State's laws, rules and practice concerning homosexuals and that they are also subject to significant levels of social discrimination from non-state agents by reason of religious and social attitudes within Syrian society. He...