Ireland - High Court, 23 November 2010, S & Anor v Refugee Applications Commissioner & Anor 2010 IEHC 421
| Country of Decision: | Ireland |
| Country of applicant: | Azerbaijan |
| Court name: | High Court (Hogan J.) |
| Date of decision: | 23-11-2010 |
| Citation: | 2010 IEHC 421 |
| Additional citation: | 2007 No. 1135 J.R. |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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First country of asylum
Description
"A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement; provided that he/she will be re-admitted to that country." Member States may consider an application for asylum as inadmissible if a country which is not a Member State is considered as a first country of asylum for the applicant. |
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Subsequent application
Description
Where a person who has applied for refugee status in a Member State makes further representations or a subsequent application in the same Member State. Member States may apply a specific procedure involving a preliminary examination where a decision has been taken on the previous application or where a previous application has been withdrawn or abandoned. As with all aspects of the procedures directive, the same provisions will apply to applicants for subsidiary protection where a single procedure applies to both applications for asylum and subsidiary protection. |
Headnote:
This case concerned a decision of the Office of the Refugee Applications Commissioner to refuse to process the asylum applications of two nationals of Azerbaijan, with refugee status in Poland. The applicants claimed they were being watched by Azeri agents in Poland and felt unsafe there. The Court held that the applicants would have had to show that the Polish authorities were unwilling or unable to provide protection. In circumstances where they had not even reported their fears to the Polish authorities, the applications were bound to fail. The Minister had no jurisdiction to grant them refugee status pursuant to the provisions of section 17 (4) of the Refugee Act, 1996.
Facts:
The applicants were Azeri nationals (a husband and wife). They applied for and obtained Refugee status in Poland in April of 2006. While in Poland, the couple maintained that they were being watched on behalf of the Azeri Government. In June of 2007, they left Poland and came to Ireland, where they claimed asylum again. The Office of Refugee Applications Commissioner refused to process their applications at first instance on the basis that the Minister was precluded from granting them Refugee status. The applicants sought to have this decision quashed by the High Court through Judicial Review.
Decision & reasoning:
Leave for Judicial Review refused. The High Court (Hogan J.) found:
A) That the couple, by their own admission, had made no attempt to inform the Polish authorities about being watched or to invoke State protection in any way. In the circumstances, there was no evidence of a refusal or failure of State protection in Poland and the Minister for Justice had no jurisdiction to grant refugee status. Section 17 (4) of the Refugee Act, 1996: “The Minister shall not give a declaration to a refugee who has been recognised as a refugee under the Geneva Convention by a state other than the State and who has been granted asylum in that state and whose reason for leaving or not returning to that state and for seeking a declaration in the State and does not relate to a fear of persecution in that state” .
B) There was no purpose in the Refugee Applications Commissioner investigating the applications and proceeding to personal interview stage as the applications were bound to fail.
C) It is not enough for an applicant to simply allege a fear of persecution in a third country where he or she has already been recognised as a refugee under the 1951 Refugee Convention: he/she must go further and must generally show that the third country in question, despite its obligations under European Union law and/or the ECHR and/or the 1951 Refugee Convention, is either not disposed to grant reasonable protection, or, perhaps, is not in a position to do so.
Outcome:
Leave for Judicial Review refused. Judicial Review application dismissed. Decision of the Refugee Applications Commissioner left in place.
Observations/comments:
The applications were not inadmissible as such. An applicant could claim that there was a failure or refusal of adequate State protection in the first country of asylum and be granted refugee status in Ireland even if the first country of asylum was another EU Member State. However, the Court in reviewing a refusal to process such an application must have regard to first country of asylum’s obligations under European Union law and/or the ECHR and/or the 1951 Refugee Convention.
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Ireland - Refugee Act 1996 - Section 17(4) |
Follower Cases:
| Follower Cases |
| Ireland - High Court, 17 April 2013, J.G. and W.M. (Czech Republic) v Refugee Applications Commissioner & Ors. [2013] IEHC 248 |