Ireland - SM -v- The Refugee Appeals Tribunal [2016] IEHC 638, 11 September 2016

Facts:

This judgment concerns a telescoped application for leave to seek judicial review of a decision of the Refugee Appeals Tribunal (RAT) refusing refugee status to the applicant.

The applicant is a female Albanian national, who worked as a childcare worker in Albania. On 31st August 2012, she was raped by her employer. Three days after the incident, she reported the rape to the police. On 5th September, the police approached the employer and his wife regarding the rape allegation and as a result, the employer’s wife left him, taking their child. The police did not pursue the investigation, which the applicant alleged was due to her employer bribing the police.  The employer subsequently initiated a daily campaign of harrassment and threats on the applicant’s life for reporting him to the police. The threats were reported to the police but no further action was taken by them. The couple decided to leave Albania to escape the harrassment. The applicant arrived in Ireland, applying for asylum on 29th November 2012.

Her application was refused at first instance by the Office of the Refugee Applications Commissioner (ORAC), whose report recommended that the applicant not be declared a refugee. An appeal was filed to the Refugee Appeals Tribunal (RAT), who (despite acknowledging the applicant’s well-founded fear of persecution) affirmed ORAC’s decision on the basis of, inter alia, the absence of a convention nexus and the absence of compelling reasons for a grant of refugee status on the grounds of past persecution.

Judicial review proceedings were initiated in April 2015, challenging the RAT’s findings on the grounds that:

1. The RAT’s finding that the applicant did not establish a Convention nexus was : (a) in breach of Section 2 of the Refugee Act and Regulations 9 and 10 of the EC (Eligibility for Protection) Regulations 2006; (b) was irrational; (c) was inconsistent with the finding that the rape was indeed a persecutory act; and (d) was in error that the RAT failed to consider relevant Country of Origin Information (COI);
2. The finding that the persecution suffered by the applicant did not reach the threshold of being “atrocious” is erroneous and/or irrational in law.

Decision & reasoning:

The High Court focused on 2 key questions in its considerations:

1. Whether the Tribunal’s finding that the applicant’s persecution and subsequent failure of State protection was not by reason of her membership of a particular social group is valid; and
2. Whether the finding that the rape and harrassment the applicant suffered could not be considered atrocious past persecution as to give rise to a grant of refugee status on the basis of compelling reasons is valid.

These questions were considered by the Court as follows:

1. The RAT accepted that the applicant did indeed face persecution in her country of origin, however, her appeal was ultimately rejected because she did not establish a nexus between that persecution and any of the Convention grounds. The Court states that the crux of the challenge in this question centres on whether or not the circumstances put forward by the applicant establish a nexus to the Convention under the particular social group reason, which was the ground relied upon by the applicant in her appeal. In seeking to establish whether or not the Tribunal Member had lawfully arrived at the conclusion that the persecution was not Convention related, in light of the evidence before her, the Court unpacked the relevant circumstances of the case.

The Court referred to the UNHCR Guidelines on International Protection (No. 2), submitted by the RAT, which set out a two-pronged test for establishing a Convention nexus in cases of non-state actors of persecution. The Court did not find an error in the Tribunal Member’s conclusion that the perpetrator’s motivation in raping and threatening the applicant was not Convention related on account of the highly personal nature of the incident and the lack of evidence to the contrary in the applicant’s subjective account of events. This left the second strand of the causal-link test: whether or not the Albanian authorities’ inability or unwillingness to provide protection from the persecution of a non-state actor was linked to a Convention reason. The Tribunal Member concluded that there was no link to the Convention on account of the fact that the failure of protection arose as a result of bribery (a finding supported by COI and the applicant’s own testimony). The applicant contended that, in focusing on the bribery, the Tribunal Member had neglected to consider whether the COI available to her contained the necessary elements to illustrate that female victims of sexual violence in Albania are routinely denied state protection on account of their being women.

In assessing whether the Tribunal Member had properly assessed the information put before her, the Court reviewed the available COI, namely a US State Department report on the human rights situation in Albania, which had been submitted by the applicant. The tribunal member had referenced the report in aid of her finding that the absence of protection arose because of the bribery, rather than because of a Convention ground. However, the report also extensively highlights the pervasive discrimination and gender-based violence perpetrated against women, as well as the ineffective laws to counter such abuse in Albania, which was not acknowledged by the Tribunal Member. The Court asserted that it was not sufficient for the Tribunal Member to rely on the report exclusively for the finding of bribery as a reason for the failure of state protection. A full assessment should also have been made to determine whether the rest of the information contained in the report could contribute to a finding that the absence of protection could be attributed to discriminatory practices in the enforcement of laws against rape or sexual harrassment. Judge Faherty stated that the COI submitted to the RAT was “damning” on the issue of women in Albania and, as such, the “ Tribunal Member was required to look at the issue of a nexus to the Convention in a lot more detail and with a lot more care than she did.” (Para. 26)

In its defense, the RAT referred to the factually similar case of T.O v, Refugee Appeals Tribunal, in which no Convention nexus was found in the case of a woman for whom “the only possible Convention nexus […] is as a woman in Nigeria”. However, the Court in the present case refuted the relevance of T.O. on the basis of the Tribunal Member in that case making “every effort to afford the applicant an opportunity of coming within the Convention grounds” before ultimately holding that the applicant “does not come within the category of membership of a social group as a woman in Nigeria who would be denied protection”.” (para. 75)

Given that the Tribunal Member in SM had not considered the references to discrimination against women in the submitted COI on Albania, or whether the absence of state protection might be linked to such discrimination, Judge Faherty found that the RAT did not give the applicant every opportunity to come within the Convention.

Thus, the Court found that a substantial ground for challenging the RAT’s decision had been made on the Tribunal’s approach to the Convention nexus finding in this case.

2. Notwithstanding the fact that the RAT found no Convention link to the persecution, the Tribunal Member proceeded with a consideration of whether the applicant’s circumstances merited the grant of refugee status based on compelling reasons due to past persecution. The Tribunal Member referred to the UNHCR Guidelines on International Protection (No. 3) and the M.S.T v. Minister for Justice, Equality and Law Reform case, which set out examples of past persecution that might give rise to circumstances meriting a declaration of refugee status for “compelling rasons”.  Relying on those guidelines, the RAT found  that “the persecution suffered by the appellant does not reach the threshold of being so atrocious as to give rise to a grant of refugee status based on compelling reasons.”

In her defense, the applicant argued that the RAT’s fidning was erroneous in that the UNHCR guidelines themselves cite sexual violence and trauma as examples of atrocious persecution and that the the threshold had been set too high in raising the concept of atrocious past persecution to the levels set out in M.S.T (which cites examples of mass murder, genocide or ethnic cleansing).

The Court rejected the applicant’s arguments that the RAT’s finding is erroneous, stating that no rule of law distinguishes between atrocious past persecution which gives rise to a grant of refugee status based on compelling reasons on the one hand and atrocious past persecution which does not on the other. Furthermore, Judge Faherty states that in his view the UNHCR Guidelines call for a qualitiative evaluation on the issue of what consituties atrocious past persecution. He agreed with the Tribunal Member’s finding, stating that she had evaluated the particular cirucumstances of the applicant’s claim in light of the relevant guidelines, case law and the evidence put forward by the applicant. As such, her finding that the past persecution of the applicant was not so atrocious as to amount to compelling reasons not to return her to Albania was found by the High Court to be reasonable.

Outcome:

On account of the challenge to the RAT’s decision on the nexus ground being upheld, the Tribunal decision was quashed and the case has been remitted for reconsideration before a different member of the Tribunal.

Observations/comments:

This case goes into considerable detail on the responsibilities of the decision maker with regards to assessing COI and documentation presented by the applicant, particularly in determining a Convention nexus. Article 8 of the Asylum Procedures Directive, which Ireland is bound by, requires that country of origin information is taken into account and weight attached to the documentation put forth. Failure of the RAT to do so would be in breach of EU law.

Other sources:

UNHCR Guidelines on International Protection (No. 1) on Gender Related Persecution;

UNHCR Guidelines on International Protection (No. 2) on Membership of  a Particular Social Group;

UNHCR Guidelines on International Protection (No. 3) on Compelling Reasons;

US State Department “2013 Country Reports on Human Rights Practices – Albania, 27th February, 2014”

Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence 2011 (Istanbul Convention)