Z.K. v Refugee Appeals Tribunal and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 19 November 2014 |
| Neutral Citation | [2014] IEHC 543 |
| Judgment citation (vLex) | [2014] 11 JIC 1901 |
| Court | High Court |
| Date | 19 November 2014 |
[2014] IEHC 543
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S17(1)(B)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
REFUGEE ACT 1996 S11
REFUGEE ACT 1996 S2
REFUGEE ACT 1996 S13
REFUGEE ACT 1996 S11(B)
A (EP) v REFUGEE APPEALS TRIBUNAL UNREP MACEOCHAIDH 27.2.2013 2013/1/78 2013 IEHC 85
S (DVT) v MIN FOR JUSTICE & ORS 2008 3 IR 476 2007/54/11621 2007 IEHC 305
KVARATSKHELIA v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2006 3 IR 368 2006/33/6983 2006 IEHC 132
CANADA (AG) v WARD 1993 2 SCR 689 1997 INLR 42 1993 103 DLR (4TH) 1
H J (IRAN) v SECRETARY OF STATE OF HOME DEPT 2011 1 AC 596 2010 3 WLR 386 2011 2 AER 591 2010 IMM AR 729 2010 INLR 425 2010 107 29 LSG 18 2010 160 NLJ 1012 2010 UKSC 31
A (M) (NIGERIA) v MIN FOR JUSTICE & ORS 2011 3 IR 41 2011/1/143 2010 IEHC 519
Q (S) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LINEHAN) UNREP MCDERMOTT 28.2.2013 2013/43/12458 2013 IEHC 94
ADAMS v MIN FOR JUSTICE UNREP COOKE 17.12.2009 (EX TEMPORE)
Immigration and asylum - Refugee status - Fear of persecution on return - Sexual orientation - Credibility findings - Country of origin information - Decision of the Tribunal - Application for leave to apply for judicial review - Substantial grounds - Order of certiorari quashing the decision
Facts The applicant, a Georgian national, arrived in Ireland on 1st February, 2007. He immediately applied for asylum. His application was grounded on a fear of persecution due to his sexual orientation as a homosexual in his home-country of Georgia. He and his family were attacked and mocked by members of the local community owing to his homosexuality. He subsequently fled to T”blisi. He lived there with his partner for a number of years. He claimed they were subjected to verbal insults, beaten, robbed, had stones thrown at them and were spat at in the street because of their sexual orientation. On 1 st January 2007 he and his partner went out to celebrate the New Year. They were accosted by a group of inebriated men. The applicant was hit in the face and knocked to the ground. His partner resisted strongly and was stabbed; he later died owing to his injuries. The applicant said the police did little to help / investigate the situation. He claimed he would have had to pay the police to carry out a proper investigation owing widespread corruption within the force. In a s.13 report, the Office of the Refugee Applications Commissioner (ORAC) found the applicant had failed to establish a well-founded fear of persecution pursuant to s.2 Refugee Act 1996. The applicant appealed to the Tribunal. The format and content of the Tribunal decision was confusing. The court had considerable difficulty in discerning what exactly had been decided by the Tribunal. Concern arose to the structure and confusing manner in which the decision was laid out. It was thought the applicant”s appeal was not properly considered and fairly weighed.
Held The judge deemed the decision of the Tribunal fundamentally flawed. The Tribunal believed the applicant”s explanations for contradictions that arose in his evidence were neither plausible nor credible. It decided he had not suffered any persecution and was unlikely to face persecution upon return. This conclusion was reached without addressing the central issue of whether the applicant was in fact a homosexual. Moreover, the Tribunal failed to state whether the applicant”s evidence regarding his daily difficulties encountered as a homosexual resident in Georgia was accepted as credible or not. The judge said it was important that a determination be made as to whether the applicant was a homosexual. He said it was crucial that clear findings of fact were made in relation to claims of his alleged experiences as a homosexual in Georgia and that a reasoned consideration be given to the country of origin information. The judge was satisfied that time should be extended for the application for leave to apply for judicial review. The Court was satisfied the applicant had established substantial grounds upon which to grant leave. The judge concluded the applicant had succeeded in establishing that the decision of the Tribunal was fundamentally flawed.
-Decision quashed
JUDGMENT of Mr. Justice McDermott delivered on the 19th day of November, 2014
1. This is an application for leave to apply for judicial review seeking an order of certiorari quashing the decision of the first named respondent (the Tribunal) dated 22 nd April, 2009, notified to the applicant on 10 th June, and an injunction restraining the second named respondent (the Minister) from taking any steps to deny the applicant refugee status under s. 17(1)(b) of the Refugee Act 1996 (as amended). The application was initiated on 10 th July, 2009, some two weeks outside the fourteen day period within which this application must be brought pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000. The hearing was conducted by consent of the parties by means of a telescoped hearing and, if leave to apply for judicial review is granted and an extension of time within which to bring the application, the parties are satisfied that the court should determine the substantive claim in respect of grounds upon which leave may be granted on the same submissions and evidence as relate to the leave application.
2. The decision of the Tribunal is challenged on the following grounds:-
(i) The Tribunal erred in law by applying an incorrect standard of proof.
(ii) Without prejudice to the foregoing, insofar as the Tribunal rejected the applicant's credibility, he foiled to do so upon reasons which bear a legitimate nexus to the adverse finding and/or failed to ground the rejection of credibility on a rational analysis explaining why credibility is rejected.
(iii) The Tribunal made a finding that there is no evidence to suggest that discrimination by Georgian society against gay persons is condoned by the State. The said finding contains a fundamental error of fact in that the Tribunal failed to take into account the country of origin information which was before it.
(iv) The Tribunal arbitrarily preferred certain country of origin information over conflicting country of origin information.
3. The applicant is a Georgian national who arrived in Ireland on 1 st February, 2007. He applied for asylum on 2 nd. His application was grounded on a fear of persecution due to his sexual orientation as a homosexual in Georgia, and discrimination against him by the Georgian Orthodox Church of which he is a member and which condemns homosexuality.
4. The applicant claims that he was discriminated against in his daily life in Georgia because of his homosexuality. This led to tensions and arguments within his family because he would not live a traditional life and start a family. In addition, locals caused great difficulty for him, his parents and for his family who were insulted, attacked and mocked by others.
5. As a result of his experiences in his home town he left in his mid twenties and travelled to T'blisi. He worked as a hairdresser, but was unable to do so openly and was confined to working from his own apartment. The apartment was purchased for him by his parents when he was a child. He lived with his partner for a number of years and claimed that they were subjected to verbal insults, beaten, robbed, had stones thrown at them and were spat at in the street because of their sexual orientation. There was widespread intolerance in society of gay people. He and his partner found the situation there intolerable and decided to leave the country in the autumn of 2006. They had seen a television programme about the treatment of minorities in other countries, including Ireland, and he and his partner decided to come here "in order to live freely and happily". They sold his apartment and several of their items and arranged for an agent to bring them to London for $5,000.00. An individual was to take them to Ireland and help them to seek asylum here.
6. On 1 st January, 2007, the applicant claimed that he and his partner went out to celebrate the New Year. On their way home they were accosted by five young men who were drunk. They were insulted verbally and then attacked because of their homosexuality. When asked why they did not conform, they refused to discuss the matter at which the young men became violent. They had knives. The applicant was hit in the face and knocked to the ground. His partner resisted strongly but he was stabbed. The young men ran away and his partner later died in hospital. The applicant was not seriously injured, suffering swelling to his face and a number of bruises and bleeding from the nose.
7. The applicant complained that when the matter was reported to the police they did nothing about it, though they maintained that they were still investigating the matter. He said that his partner's parents did not accord him a proper funeral because of his sexual orientation. Though the police attended at the hospital, he did not attend the police station. He claimed that attacks on homosexuals were not prosecuted or investigated by the police. He also claimed that he would have to pay the police to carry out a proper investigation because of corruption. He speculated that the police may have found the killers but were bribed by them not to pursue the matter.
8. The applicant obtained a UK visa which was endorsed on his passport which he left with the agent. He later claimed in the s. 11 interview that he did not apply for asylum in the United Kingdom or Latvia because the...
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