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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> G. & Anor -v- MJELR & Anor [2008] IEHC 400 (27 November 2008) URL: http://www.bailii.org/ie/cases/IEHC/2008/H400.html Cite as: [2008] IEHC 400 |
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Judgment Title: G. & Anor -v- MJELR & Anor Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation Number: [2008] IEHC 400 THE HIGH COURT 2006 991 JR
E. G. AND D. G. APPLICANTS AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL RESPONDENTS JUDGMENT OF MR JUSTICE HEDIGAN, delivered on the 27th day of November, 2008. 1. The applicants are seeking leave to apply for judicial review of the decisions of the Refugee Appeals Tribunal (“RAT”), dated 29th and 30th June, 2006, to affirm the earlier recommendations of the Office of the Refugee Applications Commissioner (“ORAC”) that they should not be declared refugees. Factual Background 3. The applicants and their son have each made a number of applications for asylum. In 1998, they applied unsuccessfully through the UNHCR for refugee status in a third country; UNHCR was then only accepting applications from persons from Kosovo and Macedonia. They applied to the Canadian and Australian Embassies in 2000. They obtained Croatian passports in December, 2001, and thereafter made unsuccessful applications for asylum in Sweden and The Netherlands. They were returned to Belgrade for short periods following each unsuccessful application and it is claimed that they were, again, harassed and persecuted. Medical evidence appears to support the claim that the first named applicant became mentally ill at that time. The applicants and their son made a third unsuccessful application in Switzerland and, after staying in that country for one year, they travelled to Ireland. Procedural Background 5. The first and second named applicants’ appeals were re-assigned to a new Tribunal Member. In support of the first named applicant’s appeal, the applicants’ solicitors forwarded, on 24th and 27th April, 2006, respectively, a psychiatric report by a SPIRASI doctor and a medical report by a Consultant Psychiatrist. On 4th May, 2006, the Tribunal Member disclosed to the applicants the COI upon which she proposed to rely; submissions were made on behalf of the applicants in respect thereof by letter dated 15th May, 2006. Individual decisions were issued on 29th and 30th June, 2006 and in each case, the appeal was rejected. On 19th July, 2006, the Minister informed the applicants that he was refusing their asylum applications and that he was proposing to deport them. Decision in respect of the First Named Applicant Decision in respect of the Second Named Applicant
8. As noted above, the son’s appeal was decided roughly six months before his parents’ appeals were re-considered, and by a different Tribunal Member. In her decision, that Tribunal Member found that COI confirms that although the situation is not yet perfect, there has been significant change in the situation in Croatia since the son left in 1991. She also found that the ORAC officer was “correct” in recommending that the son should not be declared a refugee. She noted, however, that medical reports had been furnished to the RAT that had not been before ORAC, and she set out the contents thereof. The Tribunal Member found that the fears of the son and his parents were surprising, as they had not lived in Croatia for 13 years, but she recognised that “some people are more vulnerable than others and less equipped to deal with the situation in which the Applicant found himself.” She observed that the applicant had not demonstrated that his expected suffering upon return would be “exceptionally severe” but she accepted his evidence and credibility and concluded:- “In view of the Applicant’s medical vulnerability and exaggerated subjective fears, the Tribunal is apprehensive that returning him to Croatia might possibly cause him harm and therefore in the premises is inclined to give him the benefit of the doubt.” Extension of Time 9. The RAT decisions were notified to the applicants by letters dated 14th July, 2006. The within proceedings were commenced one week outside of the 14-day time-limit imposed by section 5(2) of the Illegal Immigrants (Trafficking) Act 2000. A plausible explanation has been offered for the delay, and the respondents have taken no issue on time. In the circumstances, I am satisfied that there is good and sufficient reason to extend time and I propose to do so. THE APPLICANTS’ SUBMISSIONS a. Flawed assessment of State Protection; b. Failure to consider the position in Serbia; c. Factual error; d. Failure to provide a reason for inconsistency in decisions. (a) Assessment of COI / State Protection 11. The applicants contend that the Tribunal Member erred by failing to assess the ability as opposed to the willingness of the Croatian State to provide State protection to persons such as the applicants. It is accepted that there is no objective basis for the contention that the Croatian State is unwilling to provide State protection but it is contended that there are substantial grounds for the contention that the Croatian State is unable to provide such protection. Reliance is placed on G.S. (a minor) v The Refugee Applications Commissioner (unreported, Irvine J., High Court, 21st November, 2008), where it was claimed that the applicant would be subjected to persecution if deported to Croatia, owing to his Serb ethnicity. Leave was granted on the basis of the Tribunal Member’s apparent failure to consider up-to-date and authoritative COI adequately or at all. (b) Consideration of the Position in Serbia (c) Error of Fact “The bulk of the complaints that the [first named Applicant] makes refer to the experiences in Serbia in the period prior to 1991.” 14. Reliance is placed on A B-M v The Minister for Justice, Equality and Law Reform [2001] IEHC 110, where it was repeatedly stated in a decision made under the Hope Hanlon procedures that the applicant came from what was Zaire and is now the DR Congo, whereas the applicant actually came from the Republic of Congo. O’Donovan J. held that the implications of that error was that the recommendation and the later decision to withhold the same proceeded “on an entirely wrong basis”, in which event the decision-makers could not have been acting within jurisdiction when arriving at their respective conclusions. (d) Inconsistent Decisions 16. Although it is accepted that each case is to be decided on its merits, it is submitted that where two applications derive from identical circumstances and where the differences between them are negligible, different considerations arise; in particular, it is contended that there is an obligation to treat like cases alike and that some reason must be given or some discrete difference identified to justify the treatment of like claims differently. It is said that no such difference was shown in this case. 17. Reliance is placed on the judgment of the Supreme Court in McMahon v Leahy [1984] IR 525, where O’Higgins CJ found that it is the duty of the Courts to see that the obligation to provide equal treatment for citizens of the State is discharged. O’Higgins CJ also found (at p. 537) that if the Courts issue contradictory declarations in relation to similar proceedings, and on similar facts, “respect for the administration of justice in Courts would surely suffer, and the Courts’ process would certainly have been abused.” It is accepted that the persons concerned in that case were Irish citizens, but it is submitted that the same principle of equality applies as between non-nationals who are identically situated. Reliance is also placed on Dikilu v The Minister for Justice, Equality and Law Reform [2003] IEHC 140 and C.O.I. v The Minister for Justice, Equality and Law Reform [2007] IEHC 180. THE RESPONDENTS’ SUBMISSIONS (a) Assessment of COI / State Protection 19. The respondents submit that the Tribunal Member engaged in a well-rounded consideration of the COI as a whole. It is submitted that it is unclear whether such a reasonable consideration of COI was carried out in the RAT decision that was at issue in G.S. (a minor) (cited above). (b) Consideration of the Position in Serbia (c) Error of Fact (d) Inconsistent Decisions “Evidence from family members other than the applicant could be relevant in the event that a particular family was the subject of persecution. Similarly evidence of ethnic persecution can be persuasive though not yet personal to the applicant. However, the decision of a body in a particular case is neither evidence in an other case nor does it create a binding authority for future cases. Each case must be considered on its own merits. Imagine the outrage there would be if an application was refused because the applicant's daughter had previously been refused.” (emphasis in original). 23. It is also contended that the position of the applicants’ son may be distinguished from that of his parents on the basis that the conclusions reached in the decision in respect of the son with respect to the situation in Croatia are analogous to the conclusions reached in his parents’ cases: both Tribunal Members accepted that State protection was available in Croatia. It is argued that where the RAT decisions differ is in the conclusions reached in respect of the subjective fears of the applicants when compared to those of their son. Thus, while the same conclusion was reached with respect to the objective element of their fears of persecution, the Tribunal Members differed in their assessment of the subjective element of those fears. 24. It is asserted that the cases relied on by the applicants, in which the Court has criticised differing RAT decisions relating to similarly-situated persons (i.e. Dikilu and C.O.I., cited above), the differences that were criticised related to analysis carried out by different Tribunal Members in respect of the same country of origin information, i.e. the objective element of the fear of persecution. It is contended that none of these cases related to the analysis carried out by Tribunal Members with respect to the subjective element of that fear. It is contended that Tribunal Members are entitled, and indeed obliged, to give individual analysis to the subjective fears of each applicant, albeit that a level of coherence is required with respect to the analysis of the objective evidence that is submitted in corroboration of those fears. THE COURT’S ASSESSMENT (a) Assessment of COI / State Protection 27. In each decision, the Tribunal Member quoted extensively from the COI that was before her, acknowledging inter alia that many problems remain for ethnic Serbs in Croatia but that the Croatian Government is committed to promoting sustainable return and reintegration, that a Constitutional Law on Minority Rights was enacted in 2002, that recent COI indicates an overall improvement in the general situation, and that Croatia has ratified various regional and international instruments including the European Convention on Human Rights. In both decisions, she concluded that although there was societal discrimination and continuing violence against ethnic Serbs, it may be said in general that the Government has put in place a system for the protection of ethnic Serbs, and there is “a reasonable willingness” to operate that system. She noted that certain members of the police force would undoubtedly drag their heels in investigating cases of violence against ethnic Serbs, but that such incidents are not “of such a nature or degree” as to suggest that police inaction is condoned by the State. 28. For the same reasons as were set out in the recent decision of this Court in D.L. v The Refugee Appeals Tribunal [2008] IEHC 351, I am of the view that it was open to the Tribunal Member to reach the conclusions that she did. It cannot be said that her conclusion is perverse or unreasonable in the light of the evidence; on the contrary, her conclusion was grounded on a clear, rational and logical understanding of the COI that was before her, when considered as a whole. (b) Consideration of the Position of Serbia (c) Error of Fact (d) Inconsistent Decisions 32. Whilst it is undoubtedly the case that deciding officers may make different decisions in relation to individual applications arising from all but identical facts, it would appear at least arguable that in circumstances where the deciding offer was or ought to have been aware of another decision in respect of a family member, as was here the case, she ought to have considered that decision and given reasons for a decision which on its face appears inconsistent. 33. In the circumstances, I am satisfied that the applicants have shown substantial grounds for their contention that the impugned decision should be quashed on the basis of the Tribunal Member’s failure to address her mind to and / or give reasons for her decision to decide the first named applicant’s appeal in a manner inconsistent with that in which her son’s appeal had been decided, in circumstances where it was grounded on an identical or analogous fear of persecution supported by identical or analogous medical evidence and in the absence of any apparent distinctions. Conclusion
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