The High Court has ruled that a Refugee Appeals Tribunal decision on a Togolese man’s protection claim was unlawful because it did not consider whether his accepted past persecution alone could justify protection. The matter was remitted to the Tribunal for reconsideration.
In a judgment delivered on 12 April 2013, Mr Justice Mac Eochaidh said the Tribunal had accepted that the applicant had suffered persecution by state authorities in Togo. The applicant, who sought asylum in Ireland in 2006, said he had been detained and beaten because of his involvement in an opposition political party and feared similar treatment if returned.
The Tribunal found that threats, bodily injury including loss of teeth, detention without trial and inhuman treatment amounted to persecution. It accepted that his credible evidence, his brother’s account of the historical background and medical evidence supported a finding that he had been a victim of past mistreatment. The Tribunal nevertheless concluded, after considering country information, that conditions in Togo had improved sufficiently and that he had not established a future risk of persecution.
The High Court focused on Regulation 5(2) of the European Communities (Eligibility for Protection) Regulations 2006. The provision says past persecution is a serious indication of a well-founded fear or real risk unless there are good reasons to consider it will not recur. It also requires consideration of whether compelling reasons arising from past persecution alone may warrant protection.
The applicant argued that the Tribunal had failed to address this final part of the regulation. The judge accepted that submission. He said the Tribunal’s failure to consider the possibility that the applicant’s past persecution could trigger this protection made its decision ultra vires, even if the evidence might ultimately not support applying the provision.
The judge made clear that he was not deciding whether the Tribunal had correctly described any legal presumption or evidential burden arising from past persecution. Nor did he decide whether changed conditions in Togo justified return without fear of persecution. Those matters remain open for the Tribunal on remittal.
The court formally granted leave to seek judicial review and the final relief sought. It also extended time for bringing the proceedings, finding that the applicant was blameless for an approximately 20-day delay and had acted with a keen interest in starting the case.