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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> I.D. v The Minister for Justice, Equality & Law Reform & Anor [2013] IEHC 281 (11 June 2013)
URL: http://www.bailii.org/ie/cases/IEHC/2013/H281.html
Cite as: [2013] IEHC 281
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Judgment Title: I.D. v The Minister for Justice, Equality & Law Reform & Anor Neutral Citation: [2013] IEHC 281 High Court Record Number: 2009 267 JR Date of Delivery: 11/06/2013 Court: High Court Composition of Court: Judgment by: Mac Eochaidh J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 281 THE HIGH COURT JUDICIAL REVIEW [2009 No. 267 J.R.] BETWEEN I. D. APPLICANT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL RESPONDENTS JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 11th day of June 2013 1. The Ossetian people live in North Ossetia which is in the Russian Federation and in South Ossetia which is in Georgia. 2. In South Ossetia the Ossetians and the indigenous Georgians are in conflict and the Georgian state tends to support indigenous Georgians while Russia supports the Ossetians, causing conflict between Russia and Georgia. 3. The applicant in this case is a Georgian national from South Ossetia and is of joint Georgian and Ossetian ethnicity. He fled South Ossetia and Georgia and arrived in Ireland in August 2005 where he sought asylum. His claim was based on an allegation of persecution connected with his double ethnicity, his membership of the Labour Party and the fear of conscription into the Georgian Army. 4. The applicant's claim for asylum was rejected by the Refugee Applications Commissioner and then by the Refugee Appeals Tribunal on 6th October 2006, which decision was challenged by way of judicial review. Those proceedings were compromised. The matter was remitted to the Refugee Appeals Tribunal for reconsideration but before the hearing war broke out between Russia and Georgia in August 2008. 5. In connection with the new hearing, a supplemental submission in addition to the notice of appeal was made to the Tribunal on 19th November 2008, on which day an oral hearing was conducted by the Tribunal. This supplemental submission addressed a new claim on behalf of the applicant. 6. The war which erupted between Georgia and the Russian Federation killed hundreds of people on both sides and injured thousands of others. Significant displacement of persons occurred. The new submission argued that the applicant had consequently become a refugee "sur place". Reference was made in the submission to Regulation 6(1) of the European Communities (Eligibility for Protection) Regulations 2006, which provides:
8. The submission also referred to the decision of the European Court of Human Rights in Cyprus v. Turkey, 10th May 2001, in support of the proposition that "refusal to allow the return of . . . displaced persons to their homes ... was a violation of Article 8 of the European Convention on Human Rights". It was argued that the inability of the South Ossetians to return to their homes is a violation of Article 8 of the European Convention on Human Rights. 9. It was also submitted to the Tribunal that this human rights violation constituted persecution by reason of Regulation 9(1) of the 2006 Regulations which provides that "Acts of persecution for the purposes of section 2 of the 1996 Act must: (a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention ..." 10. Therefore, a comprehensive though concise submission was made to the Tribunal that the applicant had become a refugee 'sur place' because of the war of August 2008, which resulted in displacement of South Ossetians and their inability to return home, such inability to return home, it was argued, being a breach of human rights which constituted persecution. 11. The complaint made in these proceedings is that the applicant's claim to be a refugee sur place was not determined by the Tribunal. Did the Tribunal determine the 'sur place' claim? 13. Section 4 of the Tribunal's decision is entitled 'Submissions' and the Tribunal Member records submissions made on the applicant's behalf as follows:
Hathaway - this says that there is no distinction between a person who flees for a reason of persecution and a person who finds themselves in the position whereby the incidents are as such after they have left the country. It was submitted that the applicant is a refugee. Attention is drawn to the Parliamentary Assembly resolution where it is stated that 222,000 persons remain displaced from the previous conflict. A BBC News report of 1oth August 2008 states that thousands have fled into the neighbouring region. Turkey European Court of Human Rights. Regulation 9(1) of the European Communities (Eligibility for Protection) Regulation 2006 was also referred to. The latest Home Office 3.6.11 of the United Kingdom Home Office Guidance Note was referred to and 3.6.7 was also referred to. Reference was made to 3.6.11 of the UK Home Office Guidance Note which states that it is feared that the state authorities relocation is not feasible. Rostas v. The Refugee Tribunal was referred to [sic]. 15. Section 5 of the Tribunal decision is entitled 'Law' and it sets out or mentions many statutory provisions including s. 2 of the Refugee Act 1996; s. 1 of the 1996 Act; s. 11A(3) of the 1996 Act; s. 16(16) of the 1996 Act; s. 16(16A) of the 1996 Act; s. 11B of the 1996 Act; s. 11C of the 1996 Act; Article 5.3 of the 2006 Regulations; Article 5(1) and (5)(2) of the Regulations; Article 2 of the Regulations; Article 8 of the Regulations; Article 9 of the Regulations; and Article 10 of the Regulations. Nowhere is Article 6(1) of the Regulations referred to which is the key legislative provision underpinning an application and determination of refugee 'sur place' claims. 16. Section 6 of the Tribunal decision is entitled 'Analysis of the Applicant's Claim' which deals comprehensively with the allegation that the applicant suffered persecution as a member of the Labour Party. Part of the original asylum claim advanced by the applicant was that members of the Labour Party would be arrested and forced to fight in conflict zones. The Tribunal Member notes that there is no country of origin information to support that contention. 17. But he goes on to say:
19. The Tribunal Member deals also with the claim that there was forced conscription in Georgia, generally, and rejects this on the basis of absence of evidence to support the claim. 20. The Tribunal rejects the general credibility of the applicant but proceeds to examine the possibility of internal relocation and decides, having reviewed the authorities on this theme, that there was state protection available and internal relocation in Tbilisi was realistic. The decision concludes as follows:
(a) not shown a failure of State protection; and (b) in addition or in the alternative, it would not be unduly harsh to expect the Applicant to relocate to the locations identified in the Country of Origin as capable of providing protection. Tbilisi would not only provide the Applicant with protection against the risk of persecution he claims and also better access to social inclusion services. I find that it would be reasonable to require the Applicant to relocate to Tbilisi. The Applicant in this case did not give any reason why Tbilisi would not provide a reasonable alternative to leaving his country of origin." Conclusion 23. As this was a telescoped hearing I grant leave to seek judicial review and grant an order of certiorari. The Tribunal's decision comprehensively deals with the original asylum claim. Therefore the decision is quashed and remitted to re-hear the sur place claim only.
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