Changed conditions should be considered

Gavrylyuk Ors -v- MJELR: High Court , Judgment was delivered by Mr Justice Birmingham on October 14th, 2008

Gavrylyuk Ors -v- MJELR: High Court, Judgment was delivered by Mr Justice Birmingham on October 14th, 2008

Judgment

People whose asylum applications were fully decided and deportation orders made are not entitled to a fresh consideration of their situation under the EU qualification directive. However, if fresh facts and circumstances that have arisen since the deportation order can be identified, the Minister can be asked to consider exercising his discretion under the directive.

Background

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Two cases were considered as "test cases" because they raised legal issues concerning the question of subsidiary protection under the European Communities (Eligibility for Protection) Regulations, (SI No 518 of 2006).

One concerned Georgiy and Lyudmila Gavrylyuk, nationals of Ukraine, though Mr Gavrylyuk was of Romanian ethnic origin. They claimed they were at risk of imprisonment because of difficulties they had with the Ukrainian tax authorities.

The husband had come to Ireland in August 2000 and had claimed asylum, claiming he was persecuted by officials demanding bribes, and that he was threatened with imprisonment if he did not pay fines, which he said were incorrectly imposed.

The Office of the Refugee Applications Commissioner (ORAC) considered that he was seeking to avoid prosecution and not persecution, and concluded there was no ground under the convention for his fear of imprisonment. He appealed to the Refugee Appeals Tribunal, which upheld the ORAC decision.

Mrs Gavryluk arrived in Ireland in November 2001 and said that, following her husbands departure, the tax police continued to pursue her and threatened her with imprisonment. She also applied for asylum and ORAC came to the same conclusion with regard to her application. She did not appeal.

Both then sought protection under the prohibition of refoulement in the 1996 Refugee Act. The ORAC official acknowledged that prison conditions in the Ukraine were harsh, including beatings and torture which had sometimes led to death and frequent killings by fellow inmates.

Deportation orders were made against both applicants in March 2004. The EC Regulations came into effect in October 2006 and on March 2nd, 2007, applications were made for subsidiary protection to the Minister for Justice on behalf of both applicants.

On March 27th, a standard form letter was sent on behalf of the Minister, stating that the applications were invalid and must be refused.

However, meanwhile the High Court, in a judgment by Mr Justice Feeney in NH and TD -v- the Minister for Justice Equality and Law Reform , ruled that the Minister had a discretion under Regulation 4 (2) of the 2006 EC Regulations, to accept and consider an application for subsidiary protection from an applicant who does not have an automatic right to apply, because a deportation order had been made, but who has identified new facts or circumstances which demonstrate a change of position from that which pertained at the time it was made.

The applicants were invited to make fresh representations, which their solicitor did on their behalf and, in March 2008, the Minister responded stating that they had established no grounds that would enable him to exercise his discretion, and he had decided not to accept their application for subsidiary protection.

They challenged this in the High Court, drawing attention to a UK Home Office guidance note stating that imprisonment in Ukraine was likely to expose a detainee to a real risk of inhuman or degrading treatment.

The second case concerned Abdelhafid Bensaada, an Algerian who arrived in Ireland in August 1999 and who applied for asylum on the basis of his fear of being tortured by the militant Islamic group, the GIA, which had kidnapped and tortured him when seeking information on his brother, a member of the anti-terrorist police. His application was rejected and a deportation order was issued.

Various attempts were made to seek revocation of this order and, in July 2004, his then solicitors forwarded to the Minister a medical report from SPIRASI, a voluntary body dealing with victims of torture. It stated that his mental state was "consistent with having sustained ill-treatment of the severity which he described" and of such severity as to bring it within the definition of torture in the UN Convention against Torture.

The Minister's official acknowledged that he had been tortured, but stated that this torture had been carried out by the GIA and not the Algerian state or its representatives. The official stated that the applicant had failed to identify altered circumstances which would lead to him being at risk of suffering serious harm.

The applicants' challenge was based on three primary arguments. The first was that the Minister misinterpreted the ruling in NH TD -v- the Minister for Justice Equality and Law Reform , in stating that his discretion under the 2006 regulation could only be exercised when changed or altered circumstances were shown. Second, the applicants claimed that they could demonstrate that their circumstances had changed since the deportation orders were made. Third, they claimed inequality of treatment between them and a group of people against whom deportation orders were made, but who had not been informed of the fact, and who were allowed make applications for subsidiary protection.

Decision

Mr Justice Birmingham first looked at the decision in NH TD to consider the Ministers interpretation of it. After considering this judgment in detail, he said: "In my view, the question of whether the Minister's discretion under Regulation 4 (2) is open and total or, rather, can only be exercised where there are changed circumstances has been clearly decided by Feeney J in NH TD.

"Feeney J considered that an applicant may ask the Minister to exercise his discretion to consider an application for subsidiary protection if he or she can show that fresh facts or circumstances have arisen since the deportation order was made."

He referred to the question of inequality of treatment, he said that the fact that the Minister invited a small group of about 50 people, against whom deportation orders had been made but who had not yet been informed, to apply for subsidiary protection, was legitimate. "I am satisfied that, in drawing the distinction that he did, the Minister was pursuing a legitimate aim, which was designed to achieve fairness in the system and to promote confidence in the system."

Mr Justice Birmingham then turned to the question of changed circumstances. In relation to Mr and Mrs Gavrylyuk, he recalled that Article 15 of the qualification directive did not require that the risk of serious harm was linked to a convention ground for asylum.

He commented: "Consideration of this issue is not made any easier by the fact that, in the case to both applicants, their original asylum application might fairly be described as diffuse or lacking in focus."

He said that while it was true that Mr Gavrylyuk was threatened with imprisonment, this was conditional, depending on whether or not he paid taxes.

The country of origin information relating to prison conditions was available to the Minister when making the deportation order, and he did not accept that there was any change in their circumstances since then.

Turning to Mr Bensaada, he said that Mr Justice Feeney had outlined three potentially altered circumstances: a change in the definition of "serious harm"; altered personal circumstances; and changed conditions in the person's country of origin.

The Minister did not take into account the fact that Mr Justice Feeney's decision modified the definition of serious harm to include torture by organisations such as the GIA.

In conclusion, Mr Justice Birmingham refused the relief sought by Mr and Mrs Gavrylyuk, but considered that the Minister had failed to take into account of the changed definition of serious harm and torture in the case of Mr Bensaada and granted him the relief sought.

The full judgment is on www.courts.ie.

Anthony Collins SC and Colm ODwyer BL, instructed by A C Pendred, for Mr Bensaada; John Finlay SC, Saul Woolfson BL and David Leonard BL, instructed by Sinnott Co, for Mr and Mrs Gavrylyuk; David Conlon Smith BL, Patrick McGrath BL and Robert Barron SC, instructed by the chief state solicitor, for the Minister