Ireland - High Court, 1 July 2011, G.V. & I.V. v Refugee Appeals Tribunal & Minister for Justice, Equality and Law Reform, [2011] IEHC 262

Country of Decision:
Country of Applicant:
Date of Decision:
01-07-2011
Citation:
[2011] IEHC 262
Additional Citation:
2008 Nos. 1101 and 1100 J.R.
Court Name:
High Court (Ryan J)
National / Other Legislative Provisions:
Ireland - European Communities (Eligibility for Protection) Regulations 2006 (SI No.518 of 2006) - Reg 5
Ireland - European Communities (Eligibility for Protection) Regulations 2006 (SI No.518 of 2006) - Reg 9(1)
Ireland - European Communities (Eligibility for Protection) Regulations 2006 (SI No.518 of 2006) - Reg 9(2)
Ireland - Refugee Act 1996 - Section 2
Ireland - Refugee Act 1996 - Section 11(a)
Ireland - Refugee Act 1996 - Section 12(4)
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Headnote: 

The Court held that the question of whether discrimination, taken cumulatively, amounts to persecution in a given case is a matter for the Refugee Appeals Tribunal.

Facts: 

The applicants were a husband and wife. They claimed asylum based on the husband’s fear of persecution in Croatia as an ethnic Serb and the wife’s fear of persecution arising from her mixed marriage. As Croatia had been designated a ‘safe country’ by the Irish government the applicants were only given a written (as opposed to oral) appeal against the refusal of refugee status. The Tribunal rejected their appeal on grounds that any discrimination they might face on return to Croatia did not amount to persecution, within the meaning of the 1951 Convention.

The applicants applied for judicial review, on the grounds that (1) the Tribunal had erred in its assessment of whether the cumulative discrimination in this case could amount to persecution; and (2) that the Tribunal had wrongly failed to take account of a previous Tribunal decision, in breach of s. 5 of the European Communities (Eligibility for Protection) Regulations 2006 [which transposes Art 3 of the Qualification Directive].

Decision & Reasoning: 

In respect of the first ground, the Court noted that under s. 9 of the 2006 Regulations [which transposes Art 9 of the Qualification Directive], there must be an accumulation of measures that is sufficiently severe so as to affect an individual in a manner that is at least comparable to a severe violation of basic human rights. The Court held that it is a question of degree, and considered that the Tribunal’s description of the legal test was correct when it stated that “discrimination may amount to persecution if it has effects of a substantially prejudicial nature”.

The Court pointed out that the Tribunal is best placed to determine whether certain discriminatory measures, taken cumulatively, can amount to persecution in a given case. It is not in general possible to identify when a precise threshold has been reached so that the discrimination is of such a degree that it constitutes persecution. In this case, the Tribunal’s view that the cumulative discrimination did not reach the threshold was a decision reasonably open to the Tribunal to make.

In respect of the second ground, the Court held that the previous decision was distinguishable on the facts, and thus it was not so clearly relevant that the failure of the Tribunal to refer to it explicitly in its decision was an error of law.  The Tribunal is only required to refer to a previous decision expressly if the applicant can show that a case is extremely important or decisive.

Outcome: 

Judicial review was refused.

Case Law Cited: 

Ireland - I.T.N. v. Refugee Appeals Tribunal [2009] IEHC 434

Ireland - P.P.A. v. Refugee Appeals Tribunal [2007] 4 IR 94

Ireland - Rostas v. Refugee Appeals Tribunal (Unreported, High Court, 31st July, 2003)