The High Court quashed a Refugee Appeals Tribunal decision upholding the refusal of a Georgian man’s asylum claim, finding that the tribunal had wrongly treated his failure to seek state protection as sufficient to defeat his claim.
Mr Justice Herbert said the tribunal had not considered whether Georgia’s authorities would reasonably likely have protected the applicant if he had sought help. The court held that this question had to be assessed alongside the applicant’s evidence and country of origin information.
The tribunal had accepted that, given social attitudes in Georgia, the applicant might face ridicule, harassment and violence because of his sexual orientation, and that he might be at genuine risk of serious harm. It nevertheless concluded that he had not shown, by clear and convincing evidence, that Georgia could not protect him. The tribunal referred to the decriminalisation of homosexuality and a reported statement by the country’s president opposing discrimination. It also noted that the applicant had not sought help from state authorities.
At the judicial review hearing, the applicant’s counsel argued that the tribunal had failed to properly consider country information, evidence of complaints and instances of alleged persecution. The applicant accepted that he had not sought help from the police or other Georgian authorities, except that he claimed to have approached the Public Defender, or Ombudsman, and received no assistance. The respondents argued that the tribunal had properly applied a presumption that a state can protect its citizens.
Mr Justice Herbert agreed that, outside exceptional cases involving a notorious collapse or subversion of state institutions, a state may be presumed able and willing to protect its citizens unless the contrary is shown by clear and convincing proof. But he said a claimant’s failure to seek help could defeat a claim only where protection might reasonably have been forthcoming.
The judge said the tribunal had not addressed that question or considered whether the material submitted with the appeal could rebut the presumption of state protection. Although much of the country information concerned other groups and circumstances in Georgia, he said it could still be relevant to whether authorities would protect people seen as engaging in socially unacceptable conduct.
The court did not decide the weight to be given to that evidence or determine whether the applicant qualified for asylum. Those matters were for the Refugee Appeals Tribunal. It granted an order of certiorari quashing the tribunal’s decision of 11 February 2005, notified on 24 February 2005, which had upheld the refusal of the asylum claim.