Case summaries
In this case, the Supreme Court allowed the State’s appeal against a High Court Judgment in which the Refugee Appeals Tribunal was found to have erred in law in its approach to determining persecution. The Supreme Court allowed the State’s appeal on the basis that the tribunal member’s finding of no risk of persecution was not unreasonable (within the applicable standards of judicial review) and that the High Court was incorrect in finding that the extent of educational discrimination at issue in this case met the threshold of persecution required.
When addressing asylum claims, refugee status must be recognised when there is a well-founded fear of persecution for any of the reasons foreseen in the 1951 Refugee Convention. Assessment of an asylum request fundamentally needs careful consideration of the facts and personal circumstances of the asylum seeker, as well as an analysis of the nature of the risk. The criteria of this test does not have to be restrictive, it is sufficient that the competent authority has a rational belief that the requirements are met for the purpose of receiving refugee status.
A member state cannot rely on the fact that there are no specialized detention facilities in a part of its territory to justify keeping non-citizens in prison pending their removal.
In assessing a claim for asylum, the Tribunal erred in concluding that the discrimination likely to be faced by the minor applicant (as an Ashkali) in receiving an education in Serbia did not rise to the level of persecution, particularly given the importance of the right to education in availing of other human rights.