Ireland - High Court, 15 October 2009, G.O.I v Minister for Justice, Equality and Law Reform & Refugee Applications Commissioner [2009] IEHC 463
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
This case concerned the interpretation of Article 4.3 of the Qualification Directive and the nature of the assessment of the facts and circumstances of a refugee application that should take place. The Court rejected the argument that a failure by a first instance decision-maker to consider each of the mandatory matters set out in Article 4.3 rendered that decision unlawful such that it must be quashed, rather than allowing for any such defect to be cured by an appeal body. The obligation imposed by the Directive is satisfied when any errors or misjudgements at the first instance stage, including deficiencies in complying with Article 4.3 are remedied by an appeal stage.
Facts:
The applicant was from Nigeria and claimed to have been trafficked into Ireland for the purpose of prostitution. She claimed to fear being returned to Nigeria due to the risk of a reprisal. The first instance decision maker rejected the claim partly on the basis of country of origin information which, according to the decision maker, indicated that state protection and internal relocation were available. In seeking to review the decision it was argued that the decision maker had applied the country of origin information selectively. It was argued that the first instance decision maker’s report was unlawful for failing to comply with the mandatory duty to take into account and, if necessary, actively seek out, the matters listed in Article 4.3 (a)-(e), and that this illegality was not capable of being cured at the statutory appeal stage, but rather required to be quashed.
Decision & reasoning:
The scheme whereby Ireland has chose to attain the objective set out in the Qualification Directive involves a three stage procedure which leads to a final decision: (i) an investigative stage of interview and a report and recommendation; (ii) a possible appeal to the Refugee Appeals Tribunal, and (iii) a final decision the grant or refusal of the declaration of refugee status made by the Minister.
Nothing in the Qualification Directive precludes a Member State giving effect to its common criteria and minimum standards by means of such a procedure. The objective of the Directive is fully respected and accomplished once the decision on refugee status is based on a process in which the requirements of Article 4.3 have been taken into account in arriving at the basis for the grant or refusal of a declaration. The Directive does not maintain that any report by the first instance decision-maker which is deficient in complying with the requirements of Article 4.3 is necessarily unlawful. It is not incompatible with the Directive that such deficiencies are capable of being remedied by an appeal to the second stage Refugee Appeals Tribunal.
The Directive requires Member States to apply at least the minimum standards laid down for the assessment of an application for international protection. What is crucial is that the when declaration which embodies that assessment is granted or refused, the procedures which lead to that stage cumulatively attain and apply the minimum standards. That obligation is satisfied when any errors or misjudgements at the first instance stage, including deficiencies in complying with Article 4.3 are remedied by the appeal before the Refugee Appeals Tribunal.
Outcome:
Leave to apply for judicial review refused.
Relevant International and European Legislation:
Follower Cases:
| Follower Cases |
| Ireland - High Court, 10 February 2010, X.L.C. v Minister for Justice Equality and Law Reform and Anor., [2010] IEHC 148 |