Ireland - High Court allows judicial review of LGBTI asylum claims, Z.K. -v- The Refugee Appeals Tribunal & Ors and P.M -v- Refugee Appeals Tribunal & Ors

Monday, December 15, 2014

In the first of two High Court cases which concern asylum applications on the grounds of homosexuality the High Court has quashed a Refugee Appeals Tribunal decision which refused status to a Georgian national, on the basis that said decision was fundamentally flawed.

In criticising the Refugee Appeal Tribunal’s decision the High Court noted that whilst the former had rejected the applicant’s credibility, no specific explanation was given as to why this finding had been reached. The only analysis that was presented by the Tribunal focused on the lack of knowledge and involvement by the applicant in LGBTI organisations. The Court thus submitted that the Tribunal’s conclusion that the applicant would not face a real risk of persecution if returned to Georgia, was made without addressing the central issue of whether the applicant was a homosexual or not.

Moreover, the High Court considered that the Tribunal had relied heavily on certain pieces of evidence, to the exclusion of others. In this manner the High Court emphasised the importance of giving a reasoned consideration to country of origin information in relation to whether or not a claim is corroborated by other sources in an objective or independent way. The High Court, therefore, granted leave to apply for judicial review and subsequently quashed the decision of the Tribunal.

In the second case, which concerned a Malawian national, the High Court found that the Refugee Appeal Tribunal had made a significant error in conflating pieces of evidence and had consequently erred in its conclusion that the applicant’s testimony was inconsistent and raised credibility concerns. Moreover, and mirroring the findings from the first case, the High Court found that the Tribunal had been selective in its reliance on country of origin information and, further, academic writing in which the Tribunal erroneously submitted that international refugee law requires a claim of asylum in the “first safe country.” Thus, the Tribunal held that the applicant’s credibility was undermined given that he had passed through Kenya and the Netherlands before claiming asylum in Ireland. According to the High Court this reasoning was flawed, erroneous in law and irrational.

In conclusion, the High Court allowed the applicant to seek judicial review of the Tribunal’s decision and made an order quashing the said decision. The Court further referred the application back to the Tribunal for reconsideration by a different Tribunal Member.

NB: Judicial review applications are sent to the High Court following a negative decision by the Refugee Appeals Tribunal. As in these two cases where the High Court quashes the decision it will go back to the Tribunal for a fresh hearing. Please see AIDA national report on Ireland for more information.

12 December 2014                                      

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Credibility assessment
Sexual orientation