National case summaries
When assessing an application for refugee status, what is important is whether the acts of persecution were carried out for the reasons identified in the Geneva Convention, and not whether or to what extent the victim of persecution can be identified with those reasons.
Fear of persecution within the meaning of Article 1A(2) of the Geneva Convention need not mean that persecution is certain or even probable. Recognition of refugee status is already justified where there are reasonable grounds for asserting the possibility of persecution. “Possibility” means that persecution may take place although it is neither certain nor probable, and the “reasonable grounds” requirement indicates the need to establish real and objective evidence of the risk of persecution. The plausibility of the threat is shown by the situation in the country of origin of the person applying for refugee status as well as that person’s experience to date.
One cannot demand recognition of refugee status pursuant to Article 1A(2) of the Geneva Convention where protection can be provided pursuant to Article 1D of the Convention. The phrase used in the first sentence of Article 1D of the Convention – “persons who are at present receiving… protection or assistance” – relates to those Palestinians who could avail themselves of protection on the date of the Convention, i.e., on 28 July 1951., and to their direct descendants born after that date, provided they remain under the mandate of UNRWA (United Nations Relief and Works Agency). “Protection or assistance” for Palestinians is provided solely in areas under the UNRWA mandate. Therefore, exclusions from protection under the Geneva Convention relate only to those Palestinians who reside permanently in those areas.
Where the actors of persecution feared are themselves state agents consideration must still be given to whether the applicant can avail himself of protection, but this assessment must be made in context. There will be a spectrum of cases between, on the one extreme, those where the only ill-treatment is by non-state actors and, on the other extreme, those where the state itself is wholly complicit in the ill-treatment.
In assessing claims based on political opinion, a broad approach needed to be adopted to ensure that the object and purpose of the 1951 Refugee Convention was met. Political opinion could be actual or imputed and had to be assessed in the context of the society that the applicant had fled. Political opinion should not be restricted to issues relating to party politics nor, in the context of persecution non-state actors of persecution, was it helpful to identify those who were on the side of the forces of “law and order”.
Application to give suspensive effect to a decision by the Minister for Public Order
This case concerned deportation of a recognized refugee (Articles 32 and 33 of the 1951 Convention relating to the Status of Refugees) after a conviction for a criminal offence under common law.
Immediate deportation would expose the applicant to the risk of suffering irreparable harm in the event that his application for annulment is successful. Because of the severity of that harm, moves to deport him must be given suspensive effect until there has been a final decision on his application for annulment, even though the decision to deport him was motivated by the protection of public order.
The case also considered ending the applicant's detention andreturning the refugee residence permit, which had been withdrawn, to the applicant.
In cases where the applicant fears persecution from non-state actors, the home state can be judged to provide protection if it has in place a system of domestic protection machinery for the detection, prosecution and punishment of such acts, and has an ability and readiness to operate the machinery. Where the line is drawn will depend on the facts of the case.