T (Z) v Min for Justice & Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 31 July 2009
• Neutral Citation: [2009] IEHC 509
• Docket Number: [No. 1041 J.R./2008]
• Court: High Court
• Date: 31 July 2009

[2009] IEHC 509

THE HIGH COURT

[No. 1041 J.R./2008]

T (Z) v Min for Justice & Refugee Appeals Tribunal

[2009] IEHC 509

BETWEEN

Z.T.

APPLICANT

AND

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

RESPONDENTS

HATHAWAY THE LAW OF REFUGEE STATUS 1991 102

HATHAWAY THE LAW OF REFUGEE STATUS 1991 103

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 REG 9

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 15.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 4.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 7

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 4

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 REG 9(1)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 REG 5(2)

T (G) v MIN FOR JUSTICE UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287

IMAFU v MIN FOR JUSTICE & ORS UNREP PEART 9.12.2005 2005/31/6380 2005 IEHC 416

IMMIGRATION LAW

Asylum

Persecution - Allegation of failure to adopt correct definition of âÇÿact of persecution' -Factors to be considered -Whether cumulative incidents amounted to persecution - Whether one incident amounted to persecution where several cumulatively did not - Whether respondent erred in applying incorrect principles in assessing persecution - Tabi v Refugee Appeals Tribunal [2007] IEHC (Unrep, Peart J, 27/7/2007) and Imafu v Minister for Justice [2005] IEHC 416 (Unrep, Peart J, 9/12/2005) applied - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/ 2006), regs 3,4,5,7, 9 & 15 - Leave refused (2008/1041JR - McCarthy J - 31/7/2009) [2009] IEHC 509

T(Z) v Minister for Justice Equality and Law Reform

Facts: The applicant sought leave to obtain an order of certiorari to quash a decision of the respondent which had refused the applicant's appeal against the decision of the Refugee Applications Commissioner. The issue arose as to whether the treatment afforded to the applicant amounted to persecution. The applicant alleged that he had been subjected to threats and assaults as a member of a Union in Georgia. The applicant alleged that the Tribunal had fallen into error in adopting the definition of "acts of persecution" in Regulation 9 of European Communities (Eligibility for Protection) Regulations 2006. The applicant relied upon a series of incidents and the application of Article 5(2) of the Regulations as to past events arose and whether substantial grounds for leave had been made out by the applicant.

Held by McCarthy J. that substantial grounds had been made out. It was perfectly rational for the tribunal member to take the view as to what was the most serious aspect of the alleged persecution. It was clear that the applicant was relying on a series of incidents rather than one incident only. The tribunal member had taken into account the entirety of the complaints. The provisions of Article 5(2) were of no relevance if there was no evidence of past persecution.

Reporter: E.F.

Judgment of

Mr. Justice McCarthy

1 delivered on the 31st day of July, 2009.

2 1. This is an application for leave to seek inter alia an order of certiorari sending forward to this Court for the purpose of being quashed a decision of the Refugee Appeals Tribunal of the 26^th August, 2008, refusing Mr. T.'s appeal against a decision of the Refugee Applications Commissioner of the 31^st August, 2006, recommending that the applicant's application for a declaration that he is a refugee, be refused.

3 2. In his decision Mr. Lenihan, the member of the Tribunal said that:-

"To my mind, the central question to be determined here is whether or not the treatment afforded to this applicant whilst he was in Georgia would amount to 'persecution'. In his oral evidence, this man said that he was arrested at a meeting in February 2003 and detained for a period of two weeks. However in cross-examination by Mr. Fagan, he said that he was, initially, threatened in 2005 and thereafter assaulted in 2006. At most, there appears (sic) to have been three alleged instances of persecution against this gentleman between 1998 and 2006 when he left Georgia."

4 3. I do not propose to summarise the evidence before the Tribunal but the decision, so far as facts are concerned, was based upon the following (abstracted from the applicant's notice of appeal to the Tribunal and accepted by it) namely:

5 (1) The applicant joined the Helsinki Union in March 1998. He claims that he was subjected to threats, beatings and harassment by the authorities in Georgia.

6 (2) As already stated, the applicant claims that he was arrested for the period of two weeks in February 2003.

7 (3) He received further threats in September 2005 and in December 2005. He went into hiding in December 2005 but was detected by the authorities in March 2006 and claims that he was seriously assaulted. Thereafter, he left Georgia and travelled to this country.

8 4. It appears, also that a demonstration being filmed by the applicant in August, 2004 was broken up by the police-this is not referred to in the summary of evidence or the summary of the applicant's case as set out in the grounds of appeal. There is no suggestion that evidence beyond that which was summarized as having been given by the applicant was so given, however.

9 5. In deciding what did or did not constitute persecution the Tribunal member made the point, based on a quotation from Professor Hathaway's work The Law of Refugee Status (at p. 102) (Ed., not referred to), that the term "persecution" was an ill-defined one. He relied upon a decision referred to as "the Gladys Maribel Hernandez decision" (referred to by Professor Hathaway) to the effect that:

"The criterion to establish persecution is harassment, harassment that is so constant and unrelenting that the victims feel deprived of all hope of recourse, short of flight, from government by oppression."

10 6. He also further quoted from the same work (at p. 103) where the learned author said that:

"second, the intention of the drafters was not to protect persons against any and all forms of even serious harm, but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by a State to its own population."

"It is generally acknowledged that the drafters of the...