Ireland - High Court, 10 November 2011, A.B. v Refugee Appeals Tribunal & The Minister for Justice, Equality and Law Reform, 2011 IEHC 412

Facts:

The applicant, a lawyer from Afghanistan, based his claim for asylum on his fear of returning to Afghanistan due to his membership of and activities on behalf of the Hezb-I-Islami organisation and the Taliban, and his taking part in military activities in opposition to the Karzai regime and NATO forces.

He worked primarily as an investigator and prosecutor in Helmand province, until the NATO forces arrived in 2001. He then engaged in combat for four years, having taken over the command of his dead fathers group of Mujahadeen fighters.

The first instance decision maker, the Office of the Refugee Applications Commissioner (ORAC), had found that he was fleeing prosecution not persecution.

The Tribunal member in his decision, concurring with ORAC, stated that he found that as he did not accept that the applicant was a refugee, he did not have to consider whether the applicant would be excluded from the Convention. The Tribunal member went on to say “if he were a refugee, I would have no difficulty in concluding that he is excluded from the protection afforded by the Convention, in the light of his relatively senior position in both Hezb-I-Islami and the Taliban”.

The applicant sought to have this decision set aside on the basis that the Tribunal member had failed to carry out the individual assessment of the applicants actions required by the Court of Justice in B. & D. (Case 57/09 and Case 101/09) as to whether exclusion applied to him or not.

Decision & reasoning:

The Court refused to set aside the decision of the Tribunal. The Court found that the Tribunal had agreed with ORAC that the applicant was not a refugee, on the basis that he was fleeing prosecution and not persecution.

The Court found that the Tribunal’s further statement that if the applicant had been a refugee it would have found him to be excluded from the protection of the Convention because of his actions, was in the view of the Court “an expressly obiter observation on a secondary issue which had been the subject of some debate at the oral hearing, and that there had been an initial clear finding that the applicant was not a refugee.

Therefore the Court found that there was no requirement that the Tribunal make an assessment of the applicants’ individual responsibility, as was laid down by the Court of Justice of the European Union in Bundesrepublik Deutschland v. B.& D. (2010)E.C.R. 1-000.

Outcome:

The Court refused to set aside the decision of the Tribunal to refuse the applicant refugee status.

Observations/comments:

This case features judicial consideration of to what extent the Court, when hearing a substantive application following the granting of leave, cannot consider grounds in respect of which leave was not granted.