High Court of Ireland Decisions

 


HC 216/04

THE HIGH COURT

[2003 No. 629 J.R.]

JUDICIAL REVIEW

BETWEEN

D. H.

APPLICANT

AND REFUGEE APPLICATIONS COMMISSIONER, REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

Judgment of Mr. Justice Herbert delivered the 27^th day of May, 2004

This is an application for leave to seek Judicial Review, pursuant to the provisions of s. 5 (2) (a) of the Illegal Immigrants (Trafficking) Act, 2000, of the decision of the second named respondent confirming the recommendation of the first named respondent that the applicant's request for refugee status in this State pursuant the provisions of s. 2 of the Refugee Act, 1996, be refused.

The statement of grounds was delivered on 19^th August, 2003. At paragraph 8 of the grounding affidavit, sworn by the applicant on 14^th August, 2003, and filed on 19^th August, 2003, the applicant accepts that she received, by registered post, notification of the Decision of the second named respondent, made 17^th July, 2003. This notice, which is exhibited in the grounding affidavit of the applicant appears to be undated and there was no evidence as to when it was sent. However, no issue was taken at the hearing by the respondents that the application was not made within the time allowed by s. 5 (2) (a) of the Act of 2000.

The grounds upon which the applicant claims Judicial Review, as explained to the court by counsel for the applicant, appear to me to be as hereafter set out.

5.1. Now abandoned.

5.2. The member of the second named respondent acted

unconstitutionally and contrary to law, in not excluding from the appeal, material recorded at the interview of the applicant by the Authorised Officer of the first named respondent, which concentrated unduly on the credibility of the applicant and on her means of travel from her country of origin to this State. This was in disregard of the UNHCR Handbook guidelines and at the expense of the material facts relevant to her application for refugee status in the State.

5.3. Now abandoned.

5.4, 5.6 and 5.17. The member of the second named respondent erred in law and failed to adopt fair procedures by applying an incorrect burden of proof. In holding that the applicant must satisfy the Refugee Appeals Tribunal that she had a well-founded fear of persecution for one of the five reasons set out in s. 2 of the Refugee Act, 1996, he failed to apply a shared burden of proof. He applied an incorrect standard of proof by adopting a, " a reasonable degree of likelihood" standard rather than a "reasonable possibility" standard.

5.5. The member of the second named respondent erred in law and

adopted unfair procedures in not properly evaluating the country of origin

evidence to the extent that he failed to make any sufficient or proper independent check on that evidence through diplomatic or other agencies.

5.7. In the conduct of the Oral Appeal the member of the second named

respondent erred in law and failed to apply fair procedures by failing to

observe the principle of Audi Alteram Partem, in that he did not put to the

applicant the findings made by him or the inferences drawn by him from

that evidence so as to afford her and her legal representatives an

opportunity of addressing these matters

5.8 and 5.9. The finding of the member of the second named respondent

that the lack of proper pre-natal and maternity care in the applicant's country of origin and, the fact that the Government of that country was either unable or unwilling to provide proper pre-natal and maternity care for the applicant, did not amount to, "persecution" within the meaning of section 2 of the Refugee Act, 1996, was irrational and unreasonable and contrary to constitutional and natural justice.

5.10 The member of the second named respondent erred in law and

failed to adopt fair procedures in failing to consider that the applicant was suffering economic proscription sufficient to amount to, " persecution", within the meaning of s. 2 of the Refugee Act, 1996.

5.11, 5.12 , 5.13 and 5.14. The member of the second named

respondent erred in law and his decision was irrational and unreasonable

in that he failed to find that the applicant, because of her membership of a

particular social group, namely poor rural dwellers with large families in

the North East of her country of origin, had in fact suffered and sustained a systematic denial of basic human rights as an expectant mother, which the

Government of that country would not, or could not prevent.

5.15. The member of the second respondent erred in law and his decision

was irrational and unreasonable in failing to find that there was a

reasonable degree of likelihood that the applicant would be persecuted if

returned to her country of origin.

5.16. The member of the second named respondent adopted unfair

procedures in failing to give reasons for his findings that he was not satisfied that the applicant has a well-founded fear of persecution for any one of the reasons set out in s. 2 of the Refugee Act, 1996.

The applicant arrived in this State on 9^th March, 2002. She formally sought asylum in the State as a refugee on 10^th March, 2002. On 21^st March, 2002, a child was born to the applicant in the State. On 20^th May, 2002, the applicant completed an 'Applicant for Refugee Status' questionnaire. On 26^th July, 2002, she was interviewed by an Authorised Officer of the first named respondent. Following upon this interview a report was furnished by the Authorised Officer of the first named respondent and a recommendation was made by the first named respondent on the 19^th August, 2002, that the applicant be refused refugee status. Notice of this decision was given to the applicant on 20^th September, 2002. On 18^th November, 2002, the applicant delivered a Notice of Appeal to the second named respondent against the recommendation of the first named respondent.

On 3^rd July, 2003, the member of the second respondent conducted an oral hearing of the applicant's appeal. The decision of the member of the second named respondent was made on 17^th July, 2003, and the applicant accepts that she was notified by registered post of this decision. The motion on notice for leave to seek Judicial Review, the statement of grounds, and the verifying affidavit were filed on 19^th August, 2003.

In his decision dated 17^th July, 2003, the member of the second named respondent summarised the submissions made on behalf of the applicant by Mr. McMorrow, Barrister, instructed by Niall Sheerin and Company, Solicitors, as follows:-

(1) that the applicant was a member of a particular social group within her country of origin.

(2) That this social group was excluded from the economic system in that country.

(3) That the applicant had suffered cruel and inhuman treatment because of abject poverty in her country of origin in particular by reason of the lack of pre-natal and maternity care and also the lack of social welfare support while her husband was absent on compulsory military service.

The member of the second named respondent recorded that the Presenting Officer of the first named respondent submitted that poor economic conditions in the applicant's country of origin could not amount to "persecution", within the meaning of s. 2 of the Refugee Act, 1996.

The member of the second named respondent decided that the applicant had not established a well-founded fear of persecution for any of the reasons specified in s. 2 of the Refugee Act, 1996, and stated his reasons as follows:-

"1. The applicant states that she left (her country of origin) on account of the economic situation there and on account of the fact that she could not get proper health care. While it is accepted that health system (in her country of origin) is of a relatively low standard, there is no evidence in this case that the applicant suffered persecution on account of that.

2. I have come to the conclusion that the applicant did not suffer any persecution on account of the poor health system in (her country of origin). In addition the applicant states that she left (her country of origin) for economic reasons. I am of the view that the applicant is, to that extent, an economic migrant. Paragraph 62 of the UNHCR Handbook states, inter alia, if an applicant is moved exclusively by economic considerations he/she is an economic migrant and not a refugee.

3. In addition they could not find any evidence as to why an order under s. 16 (2) (d) of the Refugee Act, 1996, should be made."

As expressly required by s. 16 (16) of the Refugee Act, 1996, (as amended), the member of the second named respondent records in his Decision that he had regard before reaching that decision to the applicant's notice of appeal, the A.S.Y. 1, Form, the 'Application for Refugee Status' questionnaire, the Transcript of Interview by the Authorised Officer of the first named respondent and the Country of Origin information.

In the 'Application for Refugee Status' questionnaire, in answer to question 84 – Why are you seeking asylum? (Give full details of your claim bearing in mind that you must demonstrate a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and are unable or unwilling to avail yourself of the protection of your country of origin or residence – extra pages may be used), – The applicant responded as follows:-

"They wanted to take my husband to the army and I was pregnant and there was no one to provide for me. We did not have money, we did not have how to provide for ourselves, especially that there was child coming into the world.

Another reason is that I am of Catholic religion and I did not have where to go church. There was a catholic church at 10 Km from my village, but they closed it and the mayor of the village does not want to open it."

In reply to question 33, she said that she had two brothers and a sister living in her country of origin.

In the Transcript of her Interview by the Authorised Officer of the first named respondent (certified by Global Translations Limited as a true and accurate translation from the original), the applicant stated in answer to question 6 that she did not belong to any tribe or ethnic group and, in answer to question 7, that her Religion was Orthodox. In answer to question 16 she stated that her husband was in Germany and, in answer to question 20, that her parents were in her country of origin. In answer to question 30 she gave the same reason as at question 84 of the 'Application for Refugee Status' questionnaire for leaving her country of origin and, in answer to question 31, said that there was no other reason for her so leaving and that the second reason given above was untrue, viz that she was a Catholic and was unable to practice her religion.

In reply to questions 67 and 68 the applicant said that before her husband was told that he would have to join the army, he was working on his parents land growing potatoes and cabbage but that this was not enough to support her and her daughter, (born in this State on 21^st March, 2002). In reply to question 79 and 82 the applicant said that four thousand people lived in her home village and worked mostly in agriculture. In reply to questions 101 and 102, she said that if her husband returned to their country of origin he would have to go into the army for one year and few months. In reply to questions 105 and 106 she stated that before leaving her country of origin she had lived with her husband's parents but that they could not support her. In answer to question 107, she said that there was no social welfare system in her country of origin. At question 125, she was asked, "You have claimed you are seeking asylum in Ireland because your husband has been forced to join the army and there would be no one to support you. Is this the only reason you are seeking asylum in Ireland?" The applicant answered in the affirmative.

In the Report and Recommendation of the first named respondent pursuant to s. 13 (1) of the Refugee Act, 1996, (as amended), it stated, inter alia, as follows:-

"1.2 The applicant claims her problems stated in October, 2001, and it continued until she left (her country of origin) in February, 2002. The applicant claims her husband's refusal to serve his military service is due to the fact that there would have been no one to support her or her child (she was pregnant at the time), if he was to serve his compulsory military service.

1.3. The applicant claims that she and her husband lived with his parents while living in (their country of origin). The applicant claims her husband's parents had insufficient funds to support her. When asked if (her country of origin) provides social welfare support the applicant stated, "no" (see Tab b, British Home Office Report paragraph 4.68).

In the submissions forming part of the Notice of Appeal to the second named respondent, it was submitted as follows:-

1. MEMBERSHIP OF A PARTICULAR SOCIAL GROUP.

The applicant is one of four children in her family and none of these children are working. Likewise, there is no adult in gainful employment in her husband's family. The applicant has a young baby. Her (country of origin) failed to provide for persons such as the applicant any adequate social support system including in particular a child support system. The applicant and her family fear persecution by reason of her membership of their particular social group, which comprises large families and/or families in the North East area of the country with no person in gainful employment and/or families without child support who are denied fundamental human rights by the deliberate application of socio-economic policies which discriminates against them. It is submitted that the applicant is a member of a particular social group within the terms of s. 2 of the 1996 Act, and Article 1 (a) (2) of the 1951 Convention. "Discrimination" defines this Social Group comprising people distinguished by an immutable characteristics – families against whom the State, by deliberate policy discriminates in the provision of fundamental rights and socio-economic rights. The applicant fears the denial of essential and basic needs which are essential to an individual and linked to the exercise of fundamental human rights. This is particularly so in relation to her inability to provide for her baby and the failure of the State support system in this regard. The applicant and her baby have a fundamental human right to a basic level of subsistence, food, to a standard of living adequate for their physical, mental, spiritual, moral and social development. The applicant's situation is compounded by the failure of the State to provide and/or to provide adequately for families where an adult member is doing military service.

2. THE APPLICANT HAS A WELL-FOUNDED FEAR OF PERSECUTION.

The applicant has a well-founded fear of persecution by reason of a political opinion attributed or imputed to her because her husband is perceived as a draft evader and, by reason of her membership of the social group comprising her family and/or larger families denied by deliberate economic policy fundamental and basic human rights protection, there is a reasonable chance that the applicant and her family, should they be returned to (her country of origin), would suffer disproportionate punishment for her husband's actions. Avoidance of military service is a political act and is perceived as such by the authorities.

3. STATE PROTECTION/STATE POLICY:

The economic oppression and deprivation which she and her family have suffered and she fears will suffer should she be returned to her country of origin are so severe and going to the heart of basic human rights that they are tantamount to destitution and cruel inhuman and degrading treatment and in breach of her county of origins obligations pursuant to the U.N. Convention against Torture and other Cruel Inhuman and Degrading Treatment (1989). Many families and in particular large families in the North East are affected by this deprivation. The applicant's deprivation and the discrimination against her and her family amounting to persecution are linked directly to the civil status of the applicant. It is submitted that the actions and policies of the Government of her country of origin deny basic human dignity to and the core rights of the applicant and her baby. County of origin information now submitted corroborates this view …. The comprehensive statically analysis on poverty and its causes and effects presented, clearly indicates that the effect of current policy in relation to economic, social welfare, government spending and family income support is to significantly increase the risk of poverty and deprivation. The social support system for below minimum income families has significantly deteriorated – the most important mechanism for providing support to children in such families, child allowance, has suffered a severe cut-back, (see pages 13 and tables 9 and 10 of the report). Significantly reduced cash transfers (by way of supports to families with children) and a tax system, which was reformed so as to deny benefit held under the communist regime by families with children has resulted in the poorest segment of society – families with multiple children receiving the lowest social support. Moreover, resources have, by deliberate policy been directed to the support of and alleviation of suffering of abandoned and institutionalised children in response to international pressure and criticism to the direct disbenefit and deprivation of children from natural families under parental care.

4. HUMAN RIGHTS PROTECTION/DISCRIMINATION:

… the measure adopted as deliberate policy by the Government of her county of origin gave consequences of a substantially prejudicial nature for the applicant and her family. The applicant has suffered significant apprehension and insecurity for her future in particular following her husbands call to do military service. The economic measures adopted by the Government of her country of origin are directed in their application towards the particular social group(s) of the which the applicant and her family are members and have had the effect of destroying the economic existence of those families and/or families in the North East region and/or larger families with a conscript.

In the body of his decision, the Member of the second named respondent set out the following summary of the evidence given by the applicant during the appeal.

"The applicant stated that she was born in the Northern part of her county of origin. She was born in a rural village. She was one of four children. Her parents were involved in farming. They were quite poor. She qualified as a baker. However, she could not get any employment as a baker. Her survival was dependant on subsistence agriculture. She got married on 3^rd November, 2001. She became pregnant. Her husband was due to be conscripted into the army. If her husband was conscripted into the army she would not receive any social welfare. Therefore, she would have no means to support herself. She would not have had enough to eat. She left her country of origin in February, 2002, and arrived in Ireland on 9^th March, 2002. Her child was born her in Ireland on 21^st March, 2002. She stated that she could not get employment in her country of origin because one would need connections and some financial resources in her country of origin in order to gain employment. She lived with her husband's parents after getting married. She stated that she was not happy with the way that her interview had been conducted. She was asked if she wanted to refer to other matters that had not been dealt with at interview. However, counsel on behalf of the applicant objected to that line of questioning. Therefore, that question was withdrawn. The applicant stated that the health service of her county of origin was poor. She left her country of origin on account of that and on account of the fact that she had no proper means of support. She would certainly have no means of support if her husband was conscripted into the army."

Section 16 (16) of the Refugee Act, 1996, requires that the member of the second named respondent, before deciding an appeal from the first named respondent, shall consider, inter alia (e), "Any documents, representations in writing or other information furnished to Commissioner pursuant to Section 11." Section 11 (2) of the Act of 1996, as substituted by section (7) (e) (ii) of the Immigration Act, 2003, requires that a report in writing of the interview required to be conducted by an authorised officer or officers shall be furnished to the Commissioner. These are mandatory requirements. In my judgment it would be unlawful for the member of the second named respondent to exclude from his consideration any material forming part of this report. It is part of his function and of his obligation to consider that material and to give it such weight, (if any), as he considers appropriate. I am fully satisfied that the member of the second named respondent did not act in disregard of the guidelines contained in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status: Part Two, in particular paragraph 199, in respect of this material.

In my judgment the reasons given by the member of the second named respondent for his decision to affirm the 11^th August, 2002, recommendation of the first named respondent, that the applicant should not be deemed a refugee, are unrelated to credibility. He finds that the applicant did not suffer "Persecution", within the definition of section 2 of the Act of 1996, on account of the economic situation and relatively low standard of health care in her country of origin and that the applicant left her country of origin for economic reasons and was accordingly, an economic migrant and not a refugee. The member of second named respondent, in effect, fully accepted the reasons given by the applicant for her leaving her country of origin and accordingly issues of her reliability as a witness, or how she arrived in this State, did not feature at all as factors in his determination. The Court therefore rejects this ground of claim.

In the case of Z. v. The Minister for Justice, Equality and Law Reform and Others [2002] 2 ILRM 215, McGuinness J., delivering a judgment with which the other members of the Supreme Court concurred held as follows at pages 237 and 238 of the Report:-

"I should refer to Mr. Shipsey's argument that in these cases there is a "shared burden of proof" between the applicant for refugee status and the assessor. He referred to paragraph 196 of the UNHCR handbook:-

196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statement by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a persons fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duties to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at this disposal to produce the necessary evidence in support of the application….

This paragraph must, however, be read in conjunction with the previous paragraph:-

195. The relevant facts of the individual case will have to be furnished in the first place by the applicant himself. It will then be up to the person charged with determining his status (the examiner) to assess the validity of any evidence and the credibility of the applicant's statement.

It is, I understand, the practice of those involved in assessing applications for refugee status on behalf of the first named respondent to obtain in each case independent evidence of matters relevant to the appellant's evidence of persecution in his or her own country …. This information cannot, however, replace the need for the provision of factual evidence by the appellant…. The burden of proof of establishing that he personally has a well-founded fear of persecution rests on him. This is the subjective element in the definition and cannot be provided by the assessor."

In the instant case it is clear, on the face of the Decision, under the paragraph headings, "BURDEN OF PROOF" and "GENERAL", that the member of the second named respondent was fully alive to the need to obtain, and did in fact obtain independent evidence of matters relevant to the applicant's claim of a well-founded fear of persecution. He had before him and, clearly considered independent County of Origin information in the form of extracts from a British Home Office Report on the applicant's country of origin and also two Articles by a Professor of Social Policy, entitled "Poverty in (the applicant's county of origin)", and, "Child Situation", before reaching his conclusions. The court, therefore cannot accede to the argument, that the member of the second named respondent failed to obtain independent evidence of matters related to the applicant's claim of persecution in her country of origin.

In his decision, under the paragraph heading, "STANDARD OF PROOF", the member of the second named respondent gives very careful consideration to the question of the standard of proof to be applied in this jurisdiction in refugee cases. There is no express provision in the Legislation indicating the standard of proof to be applied by the second named respondent in determining appeals from the recommendation of the first named respondent. No International Treaty relating to refugee matters to which the State is a party makes provision for the application of any particular standard of proof. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, is not part of the Domestic Law. While the guidelines set out in this Handbook should, wherever possible, be observed and applied, it contains no express statement as to the standard of proof to be applied in considering applications for refugee status.

Very considerable differences of opinion as to the standard of proof to be applied are apparent in other Jurisdictions, (Hathaway, "The Law of Refugee Status", 1991: 4^th reprint 2001, Butterworths, paragraph 3.2). In Memishi v. Refugee Appeals Tribunal and Others, (High Court, Unreported, 2003, June 25, Peart J.) page 34, this Court held that, "The onus is on the Applicant to establish (a well-founded fear) as a matter of probability …". In Agwu v. Refugee Applications Commissioner and Others, (High Court, Unreported, 2004, March 5 Herbert J.) this Court applied the ordinary standard of proof in civil matters, that is, the balance of probabilities. However, the question of the standard of proof was not a direct issue in either of those cases and the matter was not fully argued before the court.

The member of second named respondent applied the "reasonable degree of likelihood", standard of proof which appears to have been adopted by the House of Lords in the case of R. v. Secretary of State for the Home Department, ex parte. Sivakumaran [1988] 1 A.E.R. 193. This is clearly more favourable to the applicant than the "balance of probabilities" standard. Counsel for the applicant submitted that the member of the second named respondent erred in law and adopted unfair procedures in failing to apply the "reasonable possibility" standard of proof adopted by the Supreme Court of the United States of America in I.N.S. v. Cardoza-Fonseca 467 U.S. 407 (1987).

In my judgment, it would not be appropriate for this court to come to any decision as to the appropriate standard of proof to be applied in these cases as the matter was not fully argued before it. A determination of this very important issue should await a full argument in another case. Having regard to the present state of the Law in this Jurisdiction, the member of the second named respondent could and, more properly should, have applied the "balance of probabilities" standard of proof in reaching his decision. As he applied a, "reasonable likelihood", standard of proof which is considerably more favourable to the applicant, he could not be said to have adopted a procedure which was irrational or unreasonable or unjust or unfair to the applicant.

I find some justification for the criticism by counsel for the applicant that the member of the second named respondent failed to make any sufficient or proper check on the circumstances prevailing in the applicant's country of origin relevant to the matters which he identified as giving rise to her alleged well-founded fear of being persecuted. A reasonable balance must be struck between, on the one hand, the need to ensure a sufficient observance of the guidelines at paragraph 196 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and, on the other hand the need to conserve public resources having regard to the various demands on the national exchequer. I do not consider that placing total reliance on Reports, and even more so, on extracts from Reports, furnished to the Governments or State Departments of the United States of America or Great Britain is always a sufficient compliance with the need to ascertain and evaluate relevant circumstances in the country of origin of a particular applicant. The reasons for and the background to these Reports could seriously limit their value as independent indicators of the circumstances in the country of origin of the particular applicant. If available, reports prepared for or by the Department of Foreign Affairs of this State should first be considered or an individual report sought from the Diplomatic Service of the State relating to the particular circumstances in the particular country of origin. Reports prepared by independent International Agencies such as Amnesty International, should also be considered where available.

However, in this case the member of the second named respondent accepted that the Health Care System in the applicant's country of origin was, "of a relatively low standard, and, that the economic situation in that country was poor". Since he reached his decision largely by accepting the applicant's own account of economic circumstances and, in particular, the Health Care System, or lack of one, in her country of origin and applied the Law to these facts, in my judgment it could not be said that the member of the second named respondent failed to adopt fair procedures by not insisting on being furnished with further and other independent evidence of these matters from the National Diplomatic Service or other sources.

The member of the second named respondent carries out an independent investigative inquiry as if the application for refugee status had been made to the second named respondent in the first instance, (Jiteakipotor v. The Minister for Justice, Equality and Law Reform and Others, (High Court, Unreported, 2002, October 4, Smyth J.) ), the system being as much inquisitorial as it is adversarial, (Shirazi v. Secretary of State for the Home Department [2004] 2 A.E.R. 602 at 611). Fair procedures would require that any material procured by or on behalf of the member of the second named respondent should be furnished to the applicant or to the legal advisors of the applicant, as well as to any other party to the Appeal and all afforded a sufficient period of time within which to consider that material and to formulate a response to it should they so desire. But the facts ultimately found by and the inferences ultimately drawn from facts by the member of the second named respondent are part of the determinative process and are part of the written decision of the member of the second named respondent. The principle of Audi Alteram Partem does not require the determinative body to debate its conclusions in advance with the parties. I am satisfied that the member of second named respondent fully adhered to this basic principle of constitutional and natural justice during all aspects of the hearing of this Appeal.

The member of the second named respondent found, on the face of his decision, citing admissions by the applicant as the basis for his finding, that she had left her country of origin for economic reasons and because she could not get proper health care in that country. It was not urged on behalf of the applicant before this court that this finding of fact by the member of the second named respondent was incorrect and amounted to a fundamental error of fact on the face of the Decision, such as would render it susceptible to challenge by way of judicial review. It was contended rather, that the member of the second named respondent, in failing to find that the economic circumstances in her country of origin, of the which the applicant complained, and, the fact that the Government of her country of origin was either unable, or unwilling, to provide a proper pre-natal and maternity care system did not result in her having a well-founded fear of persuction for reasons of race, religion, nationality, membership of a particular social group or political opinion, meant that member of the second named respondent did not properly consider or ignored the relevance of economic proscription or the systematic denial of core human rights as constituting a legitimate basis for such a fear. Accordingly, it was argued that the process by which the member of the second named respondent reached his decision was flawed and, by reference to the decision of this Court in the case of Bujari v. The Minister for Justice, Equality and Law Reform, (High Court, Unreported, 2003, May 7 Finly-Geoghegan J.) was susceptible to challenge by judicial review.

The member of the second named respondent devoted no less than four pages of his Decision to a detailed consideration of the meaning to be ascribed to the term "persecution" in the context of section 2 of the Refugee Act, 1996, and the Convention relating to the Status of Refugees, 1951, as amended by the Protocol Relating to the Status of Refugees, 1967, to both of which this country has subscribed as a contracting State. In particular, the member of the second named respondent considered and cited parts of the decisions of Finnegan J., (as he then was) in Z v. The Minister for Justice, Equality and Law Reform,(High Court, Unreported 2001, March 3); the judgment of the House of Lords in Horvath v. The Secretary of State for the Home Department [2000] 3 WLR 379 at 387; the decision of Smyth J., in Abullah Ali Khamis v. The Minister for Justice, Equality and Law Reform and Another, (High Court, Unreported 2002, June 24) (wherein reference is made to Canada (Attorney General) v. Ward, F.C.A.D., 1990 March 5, and Gladys Maribel Hernandez, Immigration Appeal Board Decision, Canada, 1983, January, 6) and the decision of the United Kingdom, Immigration Appeal Tribunal in the case of Doymus (I.A.T.): Doymus (60 T.H.01748), 2000, July 19.

The member of the second named respondent cited the passage from the decision in the Doymus Case holding that "persecution", is usually the sustained and symstemic denial of core human rights…".

It was claimed by the applicant that she feared that if she remained in her country of origin she would be unable to provide health care, food, and a standard of living adequate for the physical, mental, spiritual, moral and social development of her child and herself. She claimed, or it was claimed on her behalf that this was due to deliberate State Discrimination. It was claimed that economic measures adopted by the Government of her country of origin were directed against particular social groups of which the applicant and her family were members and, that these measures had the effect of destroying the economic existence of families like hers in the North East Region of the country and additionally or alternatively the families of military conscripts.

I have already referred to the evidence in relation to health care and economic deprivation given by the applicant in the course of her interview by the Authorised Officer of the first named respondent, in the Submissions accompanying the Notice of Appeal to the second named respondent and, in the Summary of the oral evidence given before him, contained in the Decision of the member of the second named respondent. The British Home Office Report, which was before the member of the second named respondent and, to which I have already referred in this judgment, states as follows:-

"4.68. (The applicant's country of origin), has a comprehensive state insurance scheme, premiums being paid by enterprises and institutions on behalf of wage earners. A new law on unemployment allowance was adopted in January, 1991. In addition funds are allotted to sickness benefits, children allowances, pensions and the provision of health resorts. Medical care is provided free of charge."

Following a reference to the two Articles by the Profession the Profession of Social Policy, Cataline Zafir, to which I have already referred, the following statements were made in the written submissions to the second named respondent:-

"The comprehensive statistical analysis on poverty and its causes and effects presented clearly indicates that the effect of current policy in relation to economic, social welfare, government spending and family income support is to significantly increase the risk of poverty and deprivation. The social support system for below minimum income families has significantly deteriorated – the most important mechanisms for providing support to children in such families, child allowance, has suffered a severe cut (see page 13 and tables 9 and 10 of the report). Significantly reduce cash transfers by way of supports to families with children and a tax system which was reformed so as to deny benefit held under the communist regime by families with children has resulted in the poorest segment of society – families with multiple children receiving the lowest social support. Moreover, resources have, by deliberate policy been directed to support and alleviation of suffering for abandoned and institutionalised children in response to international pressure and criticism to the direct disbenefit and deprivation of children from natural families under parental care."

I do not know the date of these Articles and, as they were not produced in evidence, I am unable to say whether the foregoing is a direct quotation from one or both of these Articles or is a synopsis of what is contained in one or both of them or is an argument based on what is contained in one or both of the Articles.

I am satisfied, that even if I were to adopt a, "most anxious scrutiny" approach, as approved in the United Kingdom case of R. v. Secretary of State, ex parte, Canbolat, [1988]1 E.E.R. 161, - though fully mindful of the reservations, pending full argument of the matter, expressed by the Supreme Court in the case of, Z v. The Minister for Justice, Equality and Law Reform and Others [2002] 2 I.L.R.M. 512 at 536 per McGuinness J., - to this evidence, it could not be said that the finding of the member of the second named respondent that:-

1. There was no evidence that the applicant suffered persecution on account of the economic situation or health care system in her country of origin, and

2. that the applicant was "moved exclusively by economic considerations" in leaving or remaining outside her country of origin and was therefore an economic migrant and as accepted by paragraph 62 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, was not a refugee,

was irrational, unreasonable or arbitrary.

Despite the claims made by the applicant and on her behalf, on the evidence before the member of the second named respondent he was reasonably entitled to find that there was no evidence of any deliberate discrimination by the Government of her country of origin in, to borrow the words of Professor James C. Hathaway, (Hathway: The Law of Refugee Status", 2001, reprint page 1997), "the allocation of available resources to meet the most basic of socio-economic needs", either against the applicant personally or against the particular social group to which she claims to belong, and which claim was admitted on her evidence alone by the member of the second named respondent. Apart from these socio-economic considerations, there was no evidence before the member of the second named respondent that the applicant left and has since remained outside her country of origin for any other well-founded fear of persecution for one of the reasons specified in section 2 of the Refugee Act, 1996.

The court rejects as utterly without foundation the argument advanced on behalf of the applicant that the member of the second named respondent failed to give reasons for his findings that the applicant did not satisfy him that she had a well-founded fear of persecution for one of the reasons set out in section 2 of the Refugee Act, 1996, if she returned to her country of origin. The member of the second named respondent found in a comprehensive decision and for clearly stated reasons, as a matter of mixed fact and law, that the applicant was, what the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status describes as an economic migrant and not a refugee.

Simply for the applicant to assert, or to have it asserted on her behalf that if she returned to her country of origin she would suffer disproportionate punishment because of her husband's actions in avoiding military service which she claimed was perceived as a political act by the State Authorities in her country of origin, is insufficient to satisfy the requirements of section 11 A of the Refugee Act, 1996, as inserted by section 7 (f) of the Immigration Act, 2003. No facts of any kind even anecdotal, were advanced by the applicant in support of this assertion. As was emphasised by McGuinness J., at page 237 of the Report of the Judgment of the Supreme Court in the case of Z v. The Minister for Justice, Equality and Law Reform and Another, [2002] 2 ILRM 215, paragraph 195 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, requires that:-

"The relevant facts of the individual case will have to be furnished in the first place by the applicant himself."

While one cannot always or even generally expect "facts" in these asylum cases in the sense in which this word is ordinarily employed in evidence, some basis must, in my judgment be advanced, however vague or uncertain, however much dependant on inference or hearsay, to support the alleged subjective fear of persecution.

While one cannot, especially having regard to the all too recent socio-economic history of this country have but very great sympathy for persons such as this applicant who wishes to flee from what, one hopes, are short lived, transitory circumstances of material poverty and hardship in her country of origin. I am satisfied that the applicant has failed to establish any of the grounds on which she seeks judicial review and I have no option but to dismiss the application.