Ireland - S.H.M. v. The Refugee Appeals Tribunal And The Minister For Justice, Equality And Law Reform

This matter concerns the hearing of an application for judicial review of the decision of the Refugee Appeals Tribunal (RAT) on 20 May 2006. The purpose of this application was to affirm an earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicant should not be granted a declaration of refugee status. The leave to apply for judicial review was granted on four grounds. Firstly, there was a failure to consider the submissions of the applicant to the effect that the refusal of the Libyan State to admit her constituted a form of persecution. It was found that the respondent failed to consider the significance of such a refusal. Secondly, there was a failure to consider vital evidence submitted on the applicant's behalf. Thirdly, there was a failure to consider the applicant’s account of the extent to which she lived her life in fear and how general daily activities involved avoiding attached and finally, there was a failure to have regard to the applicant’s fear of persecution. The court rejected the application as it was satisfied that the RAT had considered the applicant's evidence and found that she did not have a well-founded fear of persecution. The court also relied on English case law to confirm that statelessness per se does not confer refugee status.

Case name (in original language)
S.H.M. v. The Refugee Appeals Tribunal And The Minister For Justice, Equality And Law Reform
Case number
[2009] IEHC 128
Citation
S.H.M. v. The Refugee Appeals Tribunal And The Minister For Justice, Equality And Law Reform [2009] IEHC 128
Date of decision
State
Court / UN Treaty Body
Irish High Court
Language(s) the decision is available in
English
Applicant's country of birth
Libya
Applicant's country of residence
Ireland {Republic}
Relevant Legislative Provisions

Refugee Act 1996

Facts

The applicant is a 27 year old Muslim woman of Palestinian ethnicity born in Libya. Before arriving in Ireland in 2000, the applicant had lived in Libya all her life. Therefore, for the purposes of the Refugee Act 1996, Libya was considered her ‘formal habitual residence’. Following the Oslo Accords of 1993, Colonel Gaddafi declared that all Palestinians living in Libya should leave the country. The applicant’s family initially relocated internally, where they continued to suffer from harassment due to the fact that they were Palestinians. The applicant did not attend third level education due to the fear of physical attacks and rapes against Palestinians and the racially motivated attacks against her sister while she was studying in third level education.

The applicant and her sister joined their brother in Ireland on 1 September 2000 as students in computer studies under a student visa. The applicant had applied for a visa to allow her to travel back to Libya to visit her mother, but this was refused multiple times. The applicant’s student visa expired on 30 September 2005. On 26 September 2005 she married a Palestinian who had refugee status in Ireland. The applicant subsequently applied for family reunification on the basis of her marriage to a refugee. In December 2005 however, her marriage experienced some difficulties and she subsequently applied for asylum in her own right on the ground of fear of persecution on the basis of her nationality. The applicant had no right to return to Libya or Palestine and so she asserted that she was stateless. During her asylum application interview, the applicant explained that she did not wish to be dependent on her husband and so wanted to withdraw her family reunification application and instead seek asylum. At the end of her interview, the applicant made the following comment: “I have finished my study. I can’t work, I can’t renew my visa, I can’t go to Libya, I can’t go to Palestine, I can’t go to Egypt, I want to be independent of my husband. I would love to go back to my family but I can’t.”

The Office of the Refugee Applications Commissioner (ORAC)'s s.13(1) report of 1 February 2006 recommended that the applicant should not be declared a refugee. The refusal was based on a Norwegian/Danish fact-finding report from June 2004 showing that thousands of Palestinians were engaged in jobs in Libya requiring higher qualifications in the public and private sector. Those Palestinians were primarily registered as refugees in Lebanon, Syria, Egypt and Jordan and migrated to Libya to find work, similar to the applicant’s family. Whilst the applicant was found to be honest and credible, she was not a refugee as she expressed the desire to return to Libya to see her family and did not want to be prohibited from returning to Libya. The report found: “It must be concluded therefore that the applicant does not have a well- founded fear of persecution in Libya as she is willing to return there if she is allowed by the authorities. […] she stated that she would be afraid of returning because she would be questioned by the authorities which would indeed be the case. [...] However, in the applicant’s case, it is clear from her statements that her fear of the authorities is countermanded by her desire to see her family.”

The applicant appealed to the Refugee Appeals Tribunal (RAT). On 20 May 2006, while it found the applicant to be entirely credible, the RAT determined that the applicant is not a refugee as she has not established a well-founded fear of persecution under s. 2 of the Refugee Act 1996.

Decision & Reasoning

The court determined that the most important question in coming to its decision was not whether the RAT should have recited and thus demonstrated that it had considered crucial or essential aspects of the applicant’s evidence before coming to a conclusion but instead whether the RAT did consider that evidence.

The court detailed that the specifics of the evidence of the applicant’s case have remained consistent throughout, and although she relied on her past experiences to ground her claim, the main element of her need to be declared a refugee derived from her stateless position as a Palestinian. The court referred to the “helpful examination” of statelessness in refugee law in the English Court of Appeal's case Revenko v. Secretary of State for the Home Department [2001] 1 Q.B. 601. In this case, even an asylum applicant who was a stateless person and was unable to return to their country of their former habitual residence had to show a well-founded fear of persecution of a Refugee Convention reason. It further held that a current fear of persecution had to be present for an applicant who was stateless to establish that they were a refugee.

The court adopted the findings of the Court of Appeal in Revenko, and ruled that the applicant has to establish “…a well founded current fear of persecution for a Convention reason” and a stateless person who does not have such a fear is not eligible for protection under refugee law.

The court went on to state that the secondary aspects of the applicant’s claim for asylum related to past events in Libya where she faced discrimination. The court held that it was satisfied that the RAT must have been aware that these details were presented to establish a well-founded fear of persecution, and accepted that the applicant was entirely truthful but it was not in a position to extend the benefits of the Refugee Convention as “…evidence does not suggest that she has a well-founded fear of returning to Libya for the reasons given during the course of her appeal.”

The court details that the RAT found that the applicant’s evidence did not suggest that she was targeted for any particular reason whilst she was living in Libya and this appeared to be one of the findings which led to the conclusion that she did not suffer past persecution.

The court ruled that it did not believe that it can be established that the RAT did not consider the first three issues on which leave was granted, and there was no evidence that the RAT did not take into account all that was said or submitted and in this regard the applicant fails on these grounds.

The court ruled that the RAT did not attribute any significance to the emphasis that the applicant placed on her statelessness status relative to her fear of persecution, so this was not held against her.

The court also confirmed that the conclusions reached fully accord with the decision in Revenko v. Secretary of State for the Home Department, which established that statelessness per se does not confer refugee status – there must be a well-founded fear of persecution on the Refugee Convention grounds also demonstrated. It was found that the applicant had not established the requisite well-founded fear of persecution for a Refugee Convention reason if returned to Libya, so her asserted statelessness status became irrelevant.

Outcome

The application fails and the decision of the Refugee Appeals Tribunal stands.

Caselaw cited

Banzuzi v. The Refugee Appeals Tribunal [2007] I.E.H.C. 2

Revenko v. Secretary of State for the Home Department [2001] 1 Q.B. 601 [English Case]