V.P. and S.P. v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 07 December 2007
• Neutral Citation: [2007] IEHC 415
• Court: High Court
• Docket Number: RECORD NO. No. 261 JR/2006
• Date: 07 December 2007

P (V) & P (S) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

V. P. AND S. P.

APPLICANTS

AND

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

RESPONDENTS

[2007] IEHC 415

RECORD NO. No. 261 JR/2006

THE HIGH COURT

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S2

PENAL CODE 2003 ART 174/6 (REPUBLIC OF MOLDOVA)

DORAN & ORS v MIN FOR FINANCE & ORS 2001 2 IR 452 2001 ELR 330 2001/6/1448

BRIDES v MIN FOR AGRICULTURE 1998 4 IR 250

RYANAIR v FLYNN 2000 3 IR 240

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

BAILEY v FLOOD (PLANNING TRIBUNAL) UNREP MORRIS 6.3.2000 2000/2/457

O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39

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

Judgment of

Mr. Justice Feeney

delivered on the 7th day of December 2007

1 The applicants seek to bring these proceedings for the purpose of quashing a decision of the Refugee Appeals Tribunal which was made on 15^th December, 2005. That decision followed an oral hearing on the 17^th October, 2005 at which the applicants were represented by their solicitor. The appeal before the Refugee Appeals Tribunal was brought by the applicants against the recommendation of the Refugee Applications Commissioner refusing an application for a declaration that the applicants should be given refugee status. As it is required by s. 5 of the Illegal Immigrants (Trafficking) Act, 2000, the applicants have sought leave to bring judicial review proceedings on notice to the respondents and are required to establish substantial grounds.

2 The two applicants are both Moldovan nationals who applied for asylum in early June 2005. The application of each of the applicants was based on a stated fear of persecution in Moldova for reasons of political opinion. The Refugee Applications Commissioner determined that the applicants were not refugees on the 15^th August, 2005. The applicants appealed to the Refugee Appeals Tribunal and on 17^th October, 2005 an oral hearing took place before the Tribunal. The applicants had set out their grounds of appeal in a detailed notice of appeal together with the accompanying documentation. The Tribunal conducted a complete re-hearing and heard the oral evidence of both applicants and submissions on behalf of the applicants and the presenting officer. Having considered the evidence, documentation and submissions a Member of the Refugee Appeals Tribunal determined that he was not satisfied that the applicants had demonstrated a well founded fear of persecution for any of the reason contemplated by s. 2 of the Refugees Act, 1996 (as amended) and found that the applicants were not refugees within the meaning of s. 2 of the Refugee Act, 1996 (as amended) and accordingly affirmed the recommendation of the Refugee Applications Commissioner and dismissed the applicants appeal. That decision was contained in a written decision dated the 15^th December, 2005.

3 The applicants seek to challenge the decision of the Refugee Appeals Tribunal on two grounds firstly that the Tribunal made a material error of fact going to jurisdiction and secondly that the Tribunal erred in relation to the assessment of credibility in that it was contended that there was no evidence before the Tribunal which would have allowed the Tribunal Member to reach the conclusion he did in respect of the applicants credibility.

4 The Refugee Appeals Tribunal Member in his decision of 15^th December, 2005 concluded that there was no reasonable degree of likelihood that either of the applicants would be subjected to persecution in the future. The applicants claim in relation to the risk of persecution in the future, was based on the fact that the first named applicant had become a member of the Popular Christian Democratic Party in Moldova in or about 2002. That party was opposed to the then communist government. It was claimed that it was the first named applicant's involvement with this political party which gave rise to the persecution of himself and his wife. There were elections in Moldova in March 2005, in which Moldova's governing communist party obtained approximately 46% of the vote but lost ground to the opposition democratic Moldova block and the Popular Christian Democratic Party. As a result of that election the Popular Christian Democratic Party had a number of representatives elected and became part of the government and one of the party's members became Vice-President. In arriving at his decision the Member of the Refugee Appeals Tribunal stated:

"The convention requires that a forward looking test should be applied in respect of each of the applicants and I do not see any reasonable degree of likelihood that the applicants or either of them would be persecuted by reasons of the difficulties claimed. There apparently was elections in March 2005, and considered by the international community to be free and fair and taking into account that members of the Party the applicants say they were associated with are, in fact, part of the Government, I do not see any reasonable degree of likelihood that they would be subjected to the persecution claimed for this reason."

5 The decision of the Refugee Appeals Tribunal stated:

"The convention requires that a forward looking test should be applied in respect of each of the applicants."

6 There is no doubt that given the definition of a refugee contained in the Refugee Act,1996 which defines a refugee as meaning, a person, who owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion …is unable, or owing to such fear is unwilling to return to it, i.e. (the country of his or her nationality). A forward looking test must be applied. It was in applying such forward looking test that the Refugee Appeals Tribunal Member determined that in the light of the prevailing political circumstances in Moldova and the involvement of the political party, who the first named applicant supported, as part of the government there was no reasonable degree of likelihood that the applicants or either of them would be persecuted. Membership or involvement in a political party which had been part of the government since the election in March 2005 could not be viewed as a risk. That was the central finding, based upon the forward looking test, which resulted in the determination of the Refugee Appeals Tribunal.

7 6. The applicants have raised the two issues identified above as being the grounds upon which relief should be granted. The first relates to an alleged material error or fact going to jurisdiction. The suggested error of fact is the finding by the Tribunal that the criminal summons which the first named applicant faced in Moldova related to the offence of an insult to a co-worker. This issue was dealt with in the decision of the Refugee Appeals Tribunal in the following terms, namely:

"The applicant was then asked as to whether or not he was told what charges were against him and he said … he was charged with distributing propaganda. The presenting officer then referring to the document produced by the applicant dated 15^th March, 2005, in which Article 174/6 of the Criminal Code for the Republic of Moldova was referred to, it was pointed out to the applicant that...