Ireland - SWA v Refugee Appeals Tribunal & Ors, 30 January 2017
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Relevant Facts
Description
An assessment of an application for international protection must take into account all relevant facts, including those relating to: the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied; relevant statements and documentation presented by the applicant; the individual position and personal circumstances of the applicant; and other matters set out in Article 4 of the Qualification Directive |
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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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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
Headnote:
This case concerned a judicial review challenge of a Refugee Appeals Tribunal decision where the Court held that there must be a thorough analysis as to the forward looking fear of a person being returned to Pakistan on account of their religion.
Facts:
This case concerned a judicial review challenge of the Refugee Appeals Tribunal (RAT decision) in that the applicant claimed that the Tribunal erred in law in failing to consider whether the applicant may be exposed to persecution on his return to Pakistan by reason of his religion. The applicant is from Pakistan and claimed asylum in Ireland in October 2013. He was refused by the Office of the Refugee Applications Commissioner which was affirmed by the Refugee Appeals Tribunal. The Tribunal decision acknowledged that the applicant was a Shia Muslim, and the core of the applicant’s claim was on the basis of being fearful of persecution in Pakistan because of his religion. However, the Tribunal did not examine any further the applicant’s religion and instead found that the applicant was deliberately unhelpful and uncooperative and accordingly ‘the appellant has not established to the satisfaction of the Tribunal that he has any forward looking well-founded fear of persecution in Pakistan’.
Decision & reasoning:
The applicant submitted to the Court that the analysis as to the well-founded fear by the Tribunal was not an analysis at all or if considered one was so wholly insufficient and/or inadequate and/or unreasonable. The respondent submitted that if the applicant’s credibility was not accepted then in some cases, the fact of past events not being believed will relieve the administrative decision maker of the obligation to consider a risk of future persecution. This was accepted by O Regan J.
O Regan J stated that though there was a clear finding as to the applicant’s nationality in the Tribunal decision, the status as to the applicant’s religion was somewhat more difficult. This is relevant in the context of a forward looking fear of persecution. O Regan J went on to state that “In all of the circumstances it appears to me that given the acceptance that the applicant is a Pakistan national and given the ambiguity as to the applicant’s religion within the decision impugned then in the words of Cooke J. it appears to me that there is some element of the applicant’s story which can be accepted as possibly being true (his religion) and therefore his claimed Shia Muslim status deserved further consideration in respect of the forward looking test of a well-founded fear of persecution if returned to Pakistan.”
Outcome:
The applicant was granted an order of certiorari quashing the decision of the Tribunal.
Observations/comments:
This case illustrates that Tribunal members must conduct a thorough analysis of any facts presented when examining the forward looking aspect of refugee status and subsidiary protection.
Cited Cases:
| Cited Cases |
| Ireland - High Court, A(MAM) v Refugee Appeals Tribunal & Ors, [2011] IEHC 147 |