Ireland - High Court, 17 April 2013, J.G. and W.M. (Czech Republic) v Refugee Applications Commissioner & Ors. [2013] IEHC 248

Country of Decision:
Country of Applicant:
Date of Decision:
17-04-2013
Citation:
[2013] IEHC 248
Additional Citation:
2009/148 JR & 2008/1029 JR
Court Name:
High Court (McDermott J)
National / Other Legislative Provisions:
Ireland - Refugee Act 1996 - Section 2
Ireland - Refugee Act 1996 - Section 8
Ireland - Refugee Act 1996 - Section 11
Ireland - Refugee Act 1996 - Section 17(4)
Ireland - Immigration Act 1999 - Section 3(11)
Ireland - European Communities (Eligibility for Protection) Regulations 2006 (SI No.518 of 2006) - Reg 9
Ireland - European Communities (Eligibility for Protection) Regulations 2006 (SI No.518 of 2006) - Reg 10
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Headnote: 

The Court refused to give two Applicants, who had both been granted asylum by the Czech Republic, permission to seek judicial review of the Refugee Applications Commissioner’s (ORAC) decisions not to admit their asylum claims for consideration on the basis of section 17(4) of the Refugee Act 1996, and also refused similar relief sought in respect of subsequent Deportation Orders, which it was claimed were unlawful owing to the unlawfulness of the former decisions regarding the Applicants’ asylum claims.

The relevant section precludes the Minister from granting a declaration of refugee status to persons who already have asylum pursuant to the Geneva Convention, and whose reason for seeking a declaration in Ireland does not relate to a fear of persecution in that state.

The Court held that they had not provided sufficient evidence that they had suffered or feared persecution for a Convention reason, and neither had they shown that they had taken any steps to avail of the protection of the laws or courts of the Czech Republic, nor provided a reasonable explanation as to why they did not do so.

Both Applicants were also formally refused an extension of time within which to bring their proceedings on the basis that (a) the criteria for the extension of time had not been met and (b) the substantive merits of their applications were insufficient to ground their applications seeking judicial review, even if they had been within time.

Facts: 

The Applicant friends were refugees from Angola (J.G.) and the DR Congo (W.M.) who were granted asylum by the Czech Republic in 1991 and 1998 respectively, and travelled together to claim asylum in Ireland in 2007. Their claims related to the accommodation facilities in the Czech Republic together with various claims of harassment, discrimination, assault and corruption linked either directly or indirectly with officials.

The Office of the Refugee Applications Commissioner (ORAC) refused to admit the claims for consideration on the basis of section 17(4) of the Refugee Act 1996 as amended, which states that the Minister shall not give a declaration to a refugee who has been recognised as a refugee under the Geneva Convention by a state other than Ireland and who has been granted asylum in that state and whose reason for leaving or not returning to that state and for seeking a declaration in Ireland does not relate to a fear of persecution in that state. The Applicants sought to challenge the decision not to admit their claims for consideration, together with the Deportation Orders which issued as a consequence of the Minister first proposing to deport the Applicants after their claims were not admitted for consideration, and following receiving representations from the Applicants as to why they should not be deported. 

Mr. J.G. had made an application to the Minister to revoke his Deportation Order prior to commencing these proceedings (thereby potentially acknowledging its validity). He was outside of the time allowable to challenge the decision not to admit his asylum claim for consideration by fourteen months, and five-and-a-half months out of time for the decision to deport him.

Mr. M.W. was out of time to challenge the decision not to admit his asylum claim for consideration by 9 months, and was 4 days out of time to challenge the decision to deport him.

Both Applicants sought to base the challenge to their Deportation Orders on the infirmities in the decisions not to admit their asylum claims for consideration.

The present applications sought the permission of the Court to seek judicial review of the decisions and thus the Applicants were each obliged to show (a) arguable grounds that the decision not to admit their asylum claims for consideration were unlawful; (b) that there were “substantial grounds” for challenging the Deportation Orders, and (c) that they were entitled to an extension of time within which to challenge each or any of the decisions.

Decision & Reasoning: 

Having considered two High Court authorities in relation to the operation of section 17(4) of the Refugee Act 1996, the Court concluded that an applicant who has been granted asylum in another country is not entitled to a declaration of asylum simply on the basis of a bare assertion of "fear of persecution." If there are no facts to support a claim of fear of persecution at all, section 17(4) precludes the granting of refugee status, but if an applicant has established a reasonable possibility of a risk of persecution based on the facts alleged and/or proven if returned to the asylum granting country, it is incumbent on the ORAC to investigate the credibility of the claim. The applicant must demonstrate a reasonable possibility that "generally" the state in question is either not disposed to granting reasonable protection to a person in "fear of persecution" or is not in a position to do so; and the applicant must also be able to demonstrate as part of their claim that they have made an attempt to invoke the protection of the host state in an effort to procure protection - especially so if the asylum granting state is a member of the European Union bound by the Charter of Fundamental Rights, a signatory to the European Convention on Human Rights and Fundamental Freedoms, and subject to the jurisdiction of the European Court of Justice and the European Court of Human Rights.

In relation to the cases before the Court, it was held that the facts relied upon were primarily based on grievances with the Czech authorities related to their dissatisfaction with the accommodation provided to them.  The alleged assaults upon the Applicants, though reprehensible, appeared to be carried out by "skinheads" and appeared to be isolated incidents and not the result of persecution of the Applicants by the Czech Republic on the basis of race or colour. Similarly, there was no allegation of the application of discriminatory laws on that basis.

The evidence suggested that the Applicants were granted asylum by the Czech Government and were afforded assistance in terms of social welfare payments and accommodation. There were court proceedings and they were evicted from their accommodation, but the claim that the authorities evicted them without the completion of the court process and without a court order was not made out, and the Applicants failed to provide a full account of those proceedings.

The claim of racial discrimination against the Czech Government and authorities was not supported on the evidence and materials adduced, and they failed to establish a reasonable possibility that they had been discriminated against on the basis of race or colour.

They had not shown that they had taken any steps to avail of the protection of the laws or courts of the Czech Republic, or provided a reasonable explanation as to why they did not do so.

They had thus failed to demonstrate an arguable ground upon which to seek judicial review of the decision not to admit their asylum claims for consideration, and because the challenge to the Deportation Orders was contingent on the success of the former challenge, the Applicants consequently also could not show the required substantial grounds upon which they might be challenged.

The Court did not consider it in the interests of justice to extend the time for the making of the applications for permission to apply for judicial review, based both upon the absence of sufficient reasons for the delay, and on the basis that they had not established sufficient grounds for challenging the decisions.

Outcome: 

Relief refused.

Case Law Cited: 

Ireland - G.K. v Minister for Justice [2002] 2 I.R. 41

Ireland - Rossa v. The Minister for Defence, Ireland and the Attorney General [2001] 1 I.R. 190

Ireland - High Court, M.M.F. v the Minister for Justice, Equality and Law Reform [2011] IEHC 166

Ireland - High Court, C.A & B.A. v the Refugee Appeals Tribunal [2007] IEHC 290

Ireland - CS v. Minister for Justice, Equality and Law Reform [2005] 1 I.R. 343