Ireland - High Court, 1 July 2011, G.V. & I.V. v Refugee Appeals Tribunal & Minister for Justice, Equality and Law Reform, [2011] IEHC 262
Keywords:
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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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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Safe country of origin
Description
"A country where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2004/83/EC, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. In making this assessment, account is taken, inter alia, of the extent to which protection is provided against persecution or mistreatment by: (a) the relevant laws and regulations of the country and the manner in which they are applied; (b) observance of the rights and freedoms laid down in the European Convention on Human Rights (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
The Court held that the question of whether discrimination, taken cumulatively, amounts to persecution in a given case is a matter for the Refugee Appeals Tribunal.
Facts:
The applicants were a husband and wife. They claimed asylum based on the husband’s fear of persecution in Croatia as an ethnic Serb and the wife’s fear of persecution arising from her mixed marriage. As Croatia had been designated a ‘safe country’ by the Irish government the applicants were only given a written (as opposed to oral) appeal against the refusal of refugee status. The Tribunal rejected their appeal on grounds that any discrimination they might face on return to Croatia did not amount to persecution, within the meaning of the 1951 Convention.
The applicants applied for judicial review, on the grounds that (1) the Tribunal had erred in its assessment of whether the cumulative discrimination in this case could amount to persecution; and (2) that the Tribunal had wrongly failed to take account of a previous Tribunal decision, in breach of s. 5 of the European Communities (Eligibility for Protection) Regulations 2006 [which transposes Art 3 of the Qualification Directive].
Decision & reasoning:
In respect of the first ground, the Court noted that under s. 9 of the 2006 Regulations [which transposes Art 9 of the Qualification Directive], there must be an accumulation of measures that is sufficiently severe so as to affect an individual in a manner that is at least comparable to a severe violation of basic human rights. The Court held that it is a question of degree, and considered that the Tribunal’s description of the legal test was correct when it stated that “discrimination may amount to persecution if it has effects of a substantially prejudicial nature”.
The Court pointed out that the Tribunal is best placed to determine whether certain discriminatory measures, taken cumulatively, can amount to persecution in a given case. It is not in general possible to identify when a precise threshold has been reached so that the discrimination is of such a degree that it constitutes persecution. In this case, the Tribunal’s view that the cumulative discrimination did not reach the threshold was a decision reasonably open to the Tribunal to make.
In respect of the second ground, the Court held that the previous decision was distinguishable on the facts, and thus it was not so clearly relevant that the failure of the Tribunal to refer to it explicitly in its decision was an error of law. The Tribunal is only required to refer to a previous decision expressly if the applicant can show that a case is extremely important or decisive.
Outcome:
Judicial review was refused.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Ireland - I.T.N. v. Refugee Appeals Tribunal [2009] IEHC 434 |
| Ireland - P.P.A. v. Refugee Appeals Tribunal [2007] 4 IR 94 |
| Ireland - Rostas v. Refugee Appeals Tribunal (Unreported, High Court, 31st July, 2003) |
Follower Cases:
| Follower Cases |
| Ireland - High Court, 10 November 2011, E.D. v Refugee Appeals Tribunal, [2011] IEHC 431 |
| Ireland - E.D. (Education) - v – Refugee Appeals Tribunal & Anon, 21 December 2016 |