S Anor -v- Refugee Applications Commissioner & AnorNeutral citation (2010) IEHC 421 High CourtJudgment was given on November 11th, 2010, by Mr Justice Gerard Hogan.
Judgment
Asylum seekers from Azerbaijan who had obtained asylum status in Poland were found not to be at risk there and not eligible for asylum in Ireland.
Background
The applicants are a married couple who obtained asylum status in Poland in April 2006. The husband was editor-in-chief of a prominent opposition newspaper in Baku, where he was subjected to assaults, threats and blackmail and an attempt on his life. The family left Azerbaijan for Poland in July 2005.
According to their uncontradicted account, their treatment in the Polish refugee camp was “hard and decidedly unpleasant”.
The wife gave birth there to their second daughter and suffered ill-health. In April 2006 they were granted refugee status. This was “abundantly justified” in the circumstances of politically motivated kidnappings of opponents of the Azeri regime.
However, life in Poland was very difficult and the family experienced unemployment, poverty and racism.
They unsuccessfully sought asylum in Germany and Denmark and in June 2007 travelled to Ireland where they sought asylum.
This was rejected summarily by the Refugee Applications Commissioner on the grounds that they had already obtained such status in Poland and that the Minister had no jurisdiction in the matter.
They gave details of a number of incidents in Poland that meant they no longer felt safe in Poland, including examples of being watched, followed and photographed.
Mr Justice Hogan said that, according to country of origin information, it was not impossible that agents of the Azeri state would seek to frighten a known opponent of the regime. The question that arose was whether the Minister for Justice had any discretion in the matter. The 1996 Refugee Act was intended to give effect to the provisions of the 1951 Geneva Convention.
Though this is not part of our law, “it would be appropriate that such statutory provisions be construed liberally in order to give effect to the noble and humanitarian principles which underpin it.”
Decision
The construction of section 17 (4) of this Act was the critical issue, Mr Justice Hogan said. The respondents relied heavily on the decision of the High Court in SY -v- the Refugee Appeals Tribunal, involving a Sudanese citizen who was ethnically Eritrean, and who had obtained asylum in Italy.
The present case was somewhat different, in that the applicants alleged they had a fear of persecution in Poland as they were being watched and besetted by agents of the Azeri state.
What was striking about the claim made by the family was that no attempt at all was made to inform the Polish authorities and invoke their protection.
Mr Justice Hogan said that he could not overlook the fact that the couple were thoroughly disenchanted with life in Poland. Nor could he pass over the fact that Poland is a member of the EU and a party to the European Convention on Human Rights (ECHR).
An unwillingness on its part to investigate credible threats to the life and well-being of refugees within its protection would constitute a manifest breach of its EU and ECHR obligations.
It was not enough for the applicants simply to allege fear of persecution, they must show that the state in question was not willing or able to grant protection. This was where the applicants’ case failed, as there had been no attempt at all to show that Poland was not in a position to provide some reasonable degree of protection.
Therefore Mr and Mrs S could not claim that they had a fear of persecution in the sense understood by the 1996 Act.
Therefore the Office of the Refugee Applications Commissioner was justified in refusing to investigate their complaints since in the circumstances the Minister had no jurisdiction to grant them refugee status.
The full judgment is on courts.ie