Judgment: 2016-07-29 · Court archive

High Court quashes asylum appeal refusal over discriminatory prosecution analysis

The court ordered a fresh hearing before a different tribunal member, finding the decision failed to apply the required persecution test and give clear reasons.

High Court · [2016] IEHC 517

Who, what, where, when and why

Who
  • G.B. (Applicant)
  • Refugee Appeals Tribunal
  • Minister for Justice and Equality (Respondent)
What

The court ordered a fresh hearing before a different tribunal member, finding the decision failed to apply the required persecution test and give clear reasons.

Where

Places mentioned in the report

  • Moldova
  • Ireland
When

Judgment:

Why

Reasons reported in the judgment

The High Court has quashed a Refugee Appeals Tribunal decision refusing a Moldovan applicant’s asylum appeal, finding that the tribunal failed to properly assess whether his prosecution amounted to persecution. The court remitted the appeal for rehearing by a different tribunal member and adjourned the matter to allow the respondents to consider whether to seek leave to appeal.

The High Court has quashed a Refugee Appeals Tribunal decision refusing a Moldovan applicant’s asylum appeal, finding that the tribunal failed to properly assess whether his prosecution amounted to persecution. The court remitted the appeal for rehearing by a different tribunal member and adjourned the matter to allow the respondents to consider whether to seek leave to appeal.

The applicant, identified in the judgment as G.B., was a member of Moldova’s social liberal opposition party and had been elected mayor of his area. The judgment recounts that he was accused of corruption in 2004, suspended from office and replaced by a member of the ruling communist party. He challenged the prosecution, maintaining he had committed no crime. The judgment describes the prosecution as discriminatory and politically motivated.

G.B. left Moldova for Ireland in 2006 and applied for asylum that September. The Refugee Appeals Tribunal refused his appeal in 2010. Those proceedings were later settled, and the refusal was quashed by consent in 2013. The tribunal made a second refusal on 15 April 2015, which was the decision challenged in this judicial review.

The High Court said the tribunal had not applied in substance the legal test for deciding when prosecution becomes persecution. That test required consideration of whether prosecution was disproportionate or discriminatory, whether it involved a severe violation of basic human rights, and whether multiple measures cumulatively had a similar effect. The court found no clear analysis of the human rights issue and no reasoned explanation for why the tribunal concluded that prosecution did not amount to persecution.

The judge also found it irrational to treat due process at the appeal stage in Moldova as curing the applicant’s discriminatory selection for prosecution. He said that, on the accepted findings, the discriminatory prosecution and six-year sentence imposed because of the applicant’s opposition-party membership amounted to a severe human rights violation for Convention reasons. He rejected a suggestion that involvement in a land transaction established responsibility for corruption.

The court made an order of certiorari removing the 15 April 2015 decision for the purpose of quashing it and sent the asylum appeal back for a fresh hearing by a different tribunal member. It did not itself decide the asylum claim. The matter was adjourned so the respondents could consider an application for leave to appeal.

The judgment also addressed the Minister for Justice and Equality’s status as a respondent. The Minister was added by consent; the court said failure to name the Minister would not by itself make such proceedings defective unless relief was sought against the Minister.

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