Judgment: 2016-11-09 · Court archive

High Court quashes asylum appeal decision over failure to assess gender discrimination evidence

The court found the Refugee Appeals Tribunal had not properly considered country information on discrimination against women and enforcement of rape laws in Albania. It rejected a separate challenge to the Tribunal’s assessment of past persecution.

The High Court · [2016] IEHC 638

Who, what, where, when and why

Who
  • Refugee Appeals Tribunal (Respondent)
What

The court found the Refugee Appeals Tribunal had not properly considered country information on discrimination against women and enforcement of rape laws in Albania. It rejected a separate challenge to the Tribunal’s assessment of past persecution.

Where

Places mentioned in the report

  • Albania
When

Judgment:

Why

Reasons reported in the judgment

The High Court has quashed a Refugee Appeals Tribunal decision on an Albanian woman’s asylum appeal, finding that the Tribunal failed to address country information that could have been relevant to whether the lack of police protection was linked to her gender.

The High Court has quashed a Refugee Appeals Tribunal decision on an Albanian woman’s asylum appeal, finding that the Tribunal failed to address country information that could have been relevant to whether the lack of police protection was linked to her gender.

The court granted leave for judicial review and an order of certiorari, remitting the case for a fresh, paper-based hearing before a different Tribunal member. It did not decide whether the woman had established a Convention nexus; the court said that assessment was for the decision-maker.

The woman’s account, as set out in the judgment, was that her employer raped her in Albania in August 2012, while she was pregnant, and later threatened and harassed her after she reported the assault. The Tribunal accepted her account of the rape, harassment and lack of police protection. It found that the combined harm amounted to persecution and that she faced a well-founded fear of persecution if returned to Albania, but concluded that the persecution had no connection to a Refugee Convention ground. It considered the police failure to act to have resulted from bribery.

On appeal, the woman argued that she feared persecution as a member of a particular social group: a woman who had experienced gender-based violence where state protection was inadequate. The High Court noted that the Tribunal had to consider that appeal submission, which relied in part on US State Department country information about Albania.

That report described discrimination against women and said rape laws were not effectively enforced and sexual harassment laws were rarely enforced. The court held that this material should have been specifically considered alongside the woman’s account of bribery. The possibility that bribery contributed to the police response did not rule out gender discrimination as a contributing factor, the judgment said. The court stressed that the Tribunal might reach the same conclusion after weighing the evidence, but that evaluation had to be made by the decision-maker.

The court rejected the separate challenge to the Tribunal’s refusal to find compelling reasons arising from past persecution. It held that the Tribunal was entitled to make a qualitative assessment of whether the past harm met that threshold and had not acted unreasonably.

The judgment also addressed the woman’s inaccurate statement to the Tribunal about her husband’s whereabouts. The court said she had an obligation to give an accurate account, but concluded that this did not justify withholding relief because the issue did not bear on the grounds of challenge.

Read the original court judgment

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