About this case:

• Citation:
  [2023] IEHC 271
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment in the case, Mr Justice Garrett Simons held that the IPAT failed to adequately identify the nature of the crimes that the man had allegedly committed and there was no meaningful analysis of whether the crime was “serious” or “non-political”. Further, the IPAT failed to consider the status of various official Russian documents and whether it was appropriate to rely on documents emanating from the Russian Federation.

Background

The applicant was a man from the Caucasus region and was Muslim. He travelled to Ireland and sought international protection from the Russian Federation on the grounds that he feared persecution.

The applicant alleged that he was being targeted by the Federal Security Service of the Russian Federation and that the FSB made false allegations of terrorism against him for failure to co-operate with them. It was said that the applicant had been falsely accused of travelling to Syria as a member of a terrorist group known as “Imrat Kavkaz” or “Imrat Caucasus”.

The applicant claimed that if he was returned to Russia, he would be sent to prison and that the FSB would engineer his death. Several official documents were disclosed to support his case. The applicant insisted that the allegations of criminal activity were fabricated despite the documents being genuine.

In determining his claim for protection, the IPAT made a finding that the applicant had a well-founded fear of persecution within the meaning of the International Protection Act 2015 on several grounds. In particular, it was noted that members of Imrat Caucasus were at risk of torture, imprisonment and murder by State authorities.

However, the IPAT went on to find that there were “serious reasons” to consider that the applicant had committed a “serious non-political crime” prior to arriving in the State. As such, it was determined that the allegations of criminality were justified and the applicant was treated as an actual (rather than suspected) terrorist.

The applicant issued judicial review proceedings seeking to quash the decision.

High Court

Mr Justice Simons began by outlining the legislative framework applicable to the present case. It was held that the 2015 Act excluded a refugee from international protection where there were serious reasons for considering that they had committed a serious non-political crime.

It was noted that, before a finding can be made to exclude an applicant from international protection for committing a serious non-political crime, it was necessary to carry out an individual assessment of the specific facts of each case (see Joined Cases C-57/09 and C-101/09, Bundesrepublik Deutschland v. B and D, EU:C:2010:661). For example, the mere fact that a person was a member of a proscribed terrorist organisation did not automatically constitute a serious reason for finding that a person had committed a serious, non-political crime, the court held.

The court held:

It was noted that the finding that the exclusion applied was of immense importance to any individual and capable of causing severe prejudice (see B (A) (Afghanistan) v. Refugee Appeals Tribunal [2011] IEHC 412).

Applying the law to the case, it was held that the IPAT failed to adequately identify the nature of the crimes that the applicant allegedly committed. This was fundamental as, without such identification, there could be no meaningful assessment of whether the crime was serious or non-political, the court said.

Here, there was no finding which identified the specific crime committed by the applicant. The IPAT decision referred to a number of Russian documents but it was not sufficient for the IPAT to make reference to extraneous documents alleging criminality.

Even if it were permissible to rely on extraneous documents instead of naming the crime itself, the documents in this case did not identify the nature of the crime either, the court held.

The court assessed the individual documents, which amounted to a list of organisations/individuals involved in terrorism, a search warrant and a “resolution” to initiate a criminal case against the applicant. Considering the documents at their height, it was held that the applicant was a person who the Russian authorities had resolved to initiate a criminal case, which did not automatically constitute a “serious reason” to invoke the exclusion provision in the 2015 Act.

The failure to carry out an individualised assessment of the claims against the applicant was enough to invalidate the decision, the court said. However, the court went on to state that the approach taken by the IPAT to the documents was “unsatisfactory and contradictory”.

It was noted that the evidential threshold for a search warrant and a decision to initiate criminal proceedings was far lower than a criminal trial. It was important to distinguish between the various stages of criminal procedure, the court held. The IPAT failure to properly consider the status of these documents.

More fundamentally, the court held that the Country of Origin Information confirmed the well-founded concerns that the Russian authorities fabricated criminal charges against political opponents.

Similarly, despite the fact that the IPAT was satisfied that the applicant had a well-founded fear of persecution, the Tribunal appeared “unwilling to contemplate that there is a risk that the same authorities might take the lesser step of fabricating charges or falsifying evidence”. This was an irrational approach, the court said.

Finally, the court also criticised the IPAT for not properly applying the onus of proof. The IPAT had said that the applicant had refused to disclose the names of associates until the day of the oral hearing and that he failed to furnish evidence to substantiate his claim that he was not in Syria as the Russian authorities claimed.

Neither of these “supposed failings” assisted the IPAT in discharging the onus of proof, the court said. The IPAT was not entitled to “punish” an applicant for tardiness and the failure to substantiate a claim that he was not in Syria fell well short of a “serious reason” to think he had committed a serious, non-political crime.

Conclusion

The court quashed the decision and remitted the matter to a differently-constituted division of IPAT.

T (Russian Federation) v. International Protection Appeals Tribunal and Anor. [2023] IEHC 271