Ireland - High Court, 17 April 2013, J.G. and W.M. (Czech Republic) v Refugee Applications Commissioner & Ors. [2013] IEHC 248
| Country of Decision: | Ireland |
| Country of applicant: | Angola Congo (DRC) Czech Republic , |
| Court name: | High Court (McDermott J) |
| Date of decision: | 17-04-2013 |
| Citation: | [2013] IEHC 248 |
| Additional citation: | 2009/148 JR & 2008/1029 JR |
Keywords:
| Keywords |
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Manifestly unfounded application
Description
Member States may consider an application for protection as manifestly unfounded, where it is defined as such in the national legislation, and: (a) the applicant clearly does not qualify as a refugee or for refugee status in a Member State under Directive 2004/83/EC; or (b) in cases of unfounded applications for asylum where any of these circumstances apply: - the applicant, in submitting his/her application and presenting the facts, has only raised issues that are not relevant or of minimal relevance to the examination of whether he/she qualifies as a refugee by virtue of Directive 2004/83/EC; or - the application is considered to be unfounded because the applicant is from a safe country of origin within the meaning of Articles 29, 30 and 31, or - the application is considered to be unfounded because the country which is not a Member State, is considered to be a safe third country for the applicant, without prejudice to Article 28(1);or - the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his/her identity and/or nationality that could have had a negative impact on the decision; or - the applicant has filed another application for asylum stating other personal data; or - the applicant has not produced information establishing with a reasonable degree of certainty his/her identity or nationality, or it is likely that, in bad faith, he/she has destroyed or disposed of an identity or travel document that would have helped establish his/her identity or nationality; or - the applicant has made inconsistent, contradictory, improbable or insufficient representations which make his/her claim clearly unconvincing in relation to his/her having been the object of persecution referred to in Directive 2004/83/EC; or - the applicant has submitted a subsequent application which does not raise any relevant new elements with respect to his/her particular circumstances or to the situation in his/her country of origin; or - the applicant has failed without reasonable cause to make his/her application earlier, having had opportunity to do so; or - the applicant is making an application merely in order to delay or frustrate the enforcement of an earlier or imminent decision which would result in his/her removal; or - the applicant has failed without good reason to comply with obligations referred to in Article 4(1) and (2) of Directive 2004/83/EC or in Articles 11(2)(a) and (b) and 20(1)of this Directive; or - the applicant entered the territory of the Member State unlawfully or prolonged his/her stay unlawfully and, without good reason, has either not presented himself/herself to the authorities and/or filed an application for asylum as soon as possible, given the circumstances of his/her entry; or - the applicant is a danger to the national security or public order of the Member State, or the applicant has been forcibly expelled for serious reasons of public security and public order under national law; or - the applicant refuses to comply with an obligation to have his/her fingerprints taken in accordance with relevant Community and/or national legislation; or - the application was made by an unmarried minor to whom Article 6(4)(c) applies, after the application of the parents or parent responsible for the minor has been rejected and no relevant new elements were raised with respect to his/her particular circumstances or to the situation in his/her country of origin. In line with UNHCR Executive Committee Conclusion No. 30 (XXXIV) of 1983, cases that are “clearly abusive” (i.e. clearly fraudulent), or “manifestly unfounded”, (i.e. not related to the grounds for granting international protection), may be considered for accelerated procedures. Similarly appeal or review procedures may also be more simplified than those generally available in the case of other rejected asylum applications. |
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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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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be 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 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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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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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. |
Headnote:
The Court refused to give two Applicants, who had both been granted asylum by the Czech Republic, permission to seek judicial review of the Refugee Applications Commissioner’s (ORAC) decisions not to admit their asylum claims for consideration on the basis of section 17(4) of the Refugee Act 1996, and also refused similar relief sought in respect of subsequent Deportation Orders, which it was claimed were unlawful owing to the unlawfulness of the former decisions regarding the Applicants’ asylum claims.
The relevant section precludes the Minister from granting a declaration of refugee status to persons who already have asylum pursuant to the Geneva Convention, and whose reason for seeking a declaration in Ireland does not relate to a fear of persecution in that state.
The Court held that they had not provided sufficient evidence that they had suffered or feared persecution for a Convention reason, and neither had they shown that they had taken any steps to avail of the protection of the laws or courts of the Czech Republic, nor provided a reasonable explanation as to why they did not do so.
Both Applicants were also formally refused an extension of time within which to bring their proceedings on the basis that (a) the criteria for the extension of time had not been met and (b) the substantive merits of their applications were insufficient to ground their applications seeking judicial review, even if they had been within time.
Facts:
The Applicant friends were refugees from Angola (J.G.) and the DR Congo (W.M.) who were granted asylum by the Czech Republic in 1991 and 1998 respectively, and travelled together to claim asylum in Ireland in 2007. Their claims related to the accommodation facilities in the Czech Republic together with various claims of harassment, discrimination, assault and corruption linked either directly or indirectly with officials.
The Office of the Refugee Applications Commissioner (ORAC) refused to admit the claims for consideration on the basis of section 17(4) of the Refugee Act 1996 as amended, which states that 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 Ireland 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 Ireland does not relate to a fear of persecution in that state. The Applicants sought to challenge the decision not to admit their claims for consideration, together with the Deportation Orders which issued as a consequence of the Minister first proposing to deport the Applicants after their claims were not admitted for consideration, and following receiving representations from the Applicants as to why they should not be deported.
Mr. J.G. had made an application to the Minister to revoke his Deportation Order prior to commencing these proceedings (thereby potentially acknowledging its validity). He was outside of the time allowable to challenge the decision not to admit his asylum claim for consideration by fourteen months, and five-and-a-half months out of time for the decision to deport him.
Mr. M.W. was out of time to challenge the decision not to admit his asylum claim for consideration by 9 months, and was 4 days out of time to challenge the decision to deport him.
Both Applicants sought to base the challenge to their Deportation Orders on the infirmities in the decisions not to admit their asylum claims for consideration.
The present applications sought the permission of the Court to seek judicial review of the decisions and thus the Applicants were each obliged to show (a) arguable grounds that the decision not to admit their asylum claims for consideration were unlawful; (b) that there were “substantial grounds” for challenging the Deportation Orders, and (c) that they were entitled to an extension of time within which to challenge each or any of the decisions.
Decision & reasoning:
Having considered two High Court authorities in relation to the operation of section 17(4) of the Refugee Act 1996, the Court concluded that an applicant who has been granted asylum in another country is not entitled to a declaration of asylum simply on the basis of a bare assertion of "fear of persecution." If there are no facts to support a claim of fear of persecution at all, section 17(4) precludes the granting of refugee status, but if an applicant has established a reasonable possibility of a risk of persecution based on the facts alleged and/or proven if returned to the asylum granting country, it is incumbent on the ORAC to investigate the credibility of the claim. The applicant must demonstrate a reasonable possibility that "generally" the state in question is either not disposed to granting reasonable protection to a person in "fear of persecution" or is not in a position to do so; and the applicant must also be able to demonstrate as part of their claim that they have made an attempt to invoke the protection of the host state in an effort to procure protection - especially so if the asylum granting state is a member of the European Union bound by the Charter of Fundamental Rights, a signatory to the European Convention on Human Rights and Fundamental Freedoms, and subject to the jurisdiction of the European Court of Justice and the European Court of Human Rights.
In relation to the cases before the Court, it was held that the facts relied upon were primarily based on grievances with the Czech authorities related to their dissatisfaction with the accommodation provided to them. The alleged assaults upon the Applicants, though reprehensible, appeared to be carried out by "skinheads" and appeared to be isolated incidents and not the result of persecution of the Applicants by the Czech Republic on the basis of race or colour. Similarly, there was no allegation of the application of discriminatory laws on that basis.
The evidence suggested that the Applicants were granted asylum by the Czech Government and were afforded assistance in terms of social welfare payments and accommodation. There were court proceedings and they were evicted from their accommodation, but the claim that the authorities evicted them without the completion of the court process and without a court order was not made out, and the Applicants failed to provide a full account of those proceedings.
The claim of racial discrimination against the Czech Government and authorities was not supported on the evidence and materials adduced, and they failed to establish a reasonable possibility that they had been discriminated against on the basis of race or colour.
They had not shown that they had taken any steps to avail of the protection of the laws or courts of the Czech Republic, or provided a reasonable explanation as to why they did not do so.
They had thus failed to demonstrate an arguable ground upon which to seek judicial review of the decision not to admit their asylum claims for consideration, and because the challenge to the Deportation Orders was contingent on the success of the former challenge, the Applicants consequently also could not show the required substantial grounds upon which they might be challenged.
The Court did not consider it in the interests of justice to extend the time for the making of the applications for permission to apply for judicial review, based both upon the absence of sufficient reasons for the delay, and on the basis that they had not established sufficient grounds for challenging the decisions.
Outcome:
Relief refused.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Ireland - High Court, 23 November 2010, S & Anor v Refugee Applications Commissioner & Anor 2010 IEHC 421 |
| UK - House of Lords, 6 July 2000, Horvath v. Secretary of State for the Home Department [2000] UKHL 37 |
| Ireland - CS v. Minister for Justice, Equality and Law Reform [2005] 1 I.R. 343 |