High Court of Ireland Decisions

Judgment Title: Kvaratskhelia v Refugee Appeals Tribunal & Anor

Neutral Citation: [2006] IEHC 132


High Court Record Number: 2005 410JR

Date of Delivery: 05/05/2006

Court: High Court

“In summary, even though I have grave doubts about much of the Appellant’s evidence, I accept that the Appellant may be at genuine risk of serious harm. I do not accept however that he has shown a failure of state protection by clear and convincing evidence. In the circumstances I must uphold the recommendation of the Refugee Appeals Commissioner.”

“Given the societal attitude in Georgia it is likely that the Appellant would indeed be subject to ridicule, harassment and indeed violence, and in that respect I believe there is a genuine risk of serious harm.”

“In Ward at 724-726 the Supreme Court of Canada addressd the issue how, in a practical sense, a refugee claimant proves a state’s inability to protect its nationals. The view taken was that “clear and convincing” confirmation of the state’s inability to protect must be provided as absent some evidence, nations should be presumed capable of protecting their citizens.
At p. 130 of the Law of Refugee Status, Hathaway states:
“Obviously there cannot be said to be a failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming.”
I conclude that the Appellant in this case has not shown “clear and convincing” evidence that he suffers or would suffer from a failure of state protection as it relates to his claim. He never approached the authorities for assistance and, while I accept that he may have felt apprehensive about doing so, if he was the subject of a criminal offence – assault upon his person – he should have reported these acts at least. I note that President Mikhail Saakashvili was cited as saying that his government would not permit “any kind of discrimination” against homosexuals and while actions speak louder than words I consider that the fact that homosexuality was decriminalized over 4 years ago, taken with the attitude of the leader of the country raises a presumption that state protection is available to someone in the Appellant’s position. The Appellant’s evidence does not displace this presumption in circumstances where assistance was not sought.
Where in Professor Hathaway’s words, the refugee claimant ought reasonably to vindicate his or her basic human rights against the home state, refugee status is inappropriate. The application of this principle is illustrated by Kadenko v. Canada (Solicitor General) (1996) 143 D.L.R. (4th) 532, 533-534 (F.C.:C.A.), (HUGESSON AND DÈCARY J.J.A. AND CHEVALIER D.J.).
“Once it is assumed that the state (Israel in this case) has political and judicial institutions capable of protecting its citizens, it is clear that the refusal of certain police officers to take action cannot in itself make the state incapable of doing so. The answer might have been different if the question had related, for example, to the refusal by the police as an institution or to a more or less general refusal by the police force to provide the protection conferred by the country’s political and judicial institutions.”

“Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognised in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.
The Federal Court of Appeal’s decision in Satiacum may best
be explained as exemplifying such a case of presumption of a state’s ability to protect and of objective unreasonability in the claimant’s failure to avail himself of this protection. In that case an American Indian chief who was convicted of federal criminal charges fled to Canada before sentencing. Arrested in Canada a year later, he claimed refugee status. The persecution he alleged to have feared was a risk to his life if incarcerated in a federal prison. The Federal Court of Appeal found that Satiacum’s fear did not meet the objective component of the test for fear of persecution as it must be presumed that the United States judicial system is effective in affording a citizen just treatment. The court stated, at p. 176:-
“in the absence of exceptional circumstances established by the claimant, it seems to me that in a Convention refugee hearing as in an extradition hearing, Canadian Tribunals have to assume a fair and independent judicial process in the foreign country. In the case of a nondemocratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself.”
Although this presumption increases the burden on the claimant, it does not render illusory Canada’s provision of a haven for refugees. The presumption serves to reinforce the underlying rationale of international protection as a surrogate, coming into play where no alternative remains to the claimant. Refugee claims were never meant to allow a claimant to seek out better protection than that from which he or she benefits already.
In summary, I find that state complicity is not a necessary component of persecution either under the “unwilling” or under the “unable” branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state’s inability to protect must be advanced. I recognise that these conclusions broaden the range of potentially successful refugee claims beyond those involving feared persecution at the hands of the claimant’s nominal government. As long as this persecution is directed at the claimant on the basis of one of the enumerated grounds, I do not think the identity of the feared perpetrator of the persecution removes these cases from the scope of Canada’s international obligations in this area. On this note, I now turn to a consideration of these enumerated grounds.”

“like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection ‘might reasonably have been forthcoming’ will the claimant’s failure to approach the state for protection defeat his claim.”

“Thus, if the State cannot or will not provide a sufficiency of protection, if sought, the failure to seek it is irrelevant, and that is so whether the failure results from a fear of persecution or simply an acceptance that to do so would be futile.”

“As conceded by the Appellant’s legal representative this Appellant’s claim rests effectively upon his evidence of a fear of persecution on the ground of his sexual orientation. There is no doubt that the situation in Georgia as regards the treatment of homosexuals is somewhat ambiguous.”

“given the societal attitude in Georgia it is likely that the Appellant would indeed be subject to ridicule, harassment and indeed violence, and in that respect I believe there is a genuine risk of serious harm.”
Having so found the first named respondent then continues as follows… “however the persecution requirement is a construct of two components, namely serious harm and a failure of state protection. As Professor Hathaway explains in The Law of Refugee Status at 57, it is an underlying assumption of Refugee Law that wherever available, national protection takes precedence over international protection. At op cit 104 he adds that the drafters of the Convention were not concerned to respond to certain forms of harm per se, but were rather motivated to intervene only where the maltreatment anticipated was demonstrative of a breakdown of national protection.
Refugee Law exists in order to interpose the protection of the international community in situations where resort to national protection is not possible. Because it is fundamentally a form of surrogate or substitute protection, the beneficiaries of Refugee Law have always been defined to exclude those who enjoy the basic entitlements of membership in a national community, and who ought reasonably to vindicate their basic human rights against their own state. Refugees are unprotected persons, not just in the sense that their basic liberties or entitlements are in jeopardy, but more fundamentally because it is impossible for them to work within or even to restructure the national community of which they are nominally a part in order to exercise those human rights. Their position within the home community is not just precarious, there is also an element of fundamental marginalization which distinguishes them from other persons at risk of serious harm. In Ward at 724-726 the Supreme Court of Canada addressed the issue how, in a practical sense, a refugee claimant proves a state’s inability to protect its nationals. The view taken was that “clear and convincing” confirmation of a state’s inability to protect must be provided as absent some evidence, nations should be presumed capable of protecting their citizens.
At p. 130 of The Law of Refugee Status, Hathaway states:
“obviously there cannot be said to be failure of state protection where a government has not been given an opportunity to respond to a form of harm in circumstances where protection might reasonably have been forthcoming.”

“The Appellant’s evidence does not displace this presumption in circumstances where assistance was not sought.
Where, in Professor Hathaway’s words, the refugee claimant ought reasonably to vindicate his or her basic human rights against the home state, refugee status is inappropriate.”