ED (Education) v Refugee Appeals Tribunal: Complete denial of education is persecution, but …

In this case, the Supreme Court held that “a complete denial of education” could constitute persecution for the purposes of s 2 of the Refugee Act 1996. However (here), Clarke J, writing for the five justices, allowed the State’s appeal against the High Court judgment by Hogan J (ED v The Refugee Appeals Tribunal [2011] 3 IR 736) that the Refugee Appeals Tribunal (RAT) “erred in law in its construction of what constitutes persecution” in the circumstances of this case.

In the High Court, Hogan J allowed ED’s appeal against the RAT’s refusal to grant refugee status. Hogan J held that as the RAT had found that there was a real risk that ED (a minor) would not receive even a basic education if deported to Serbia, it was bound by that evidence to find that that represented persecution under s 2 of the 1996 Act.

In the Supreme Court, Clarke J set out the grounds for allowing the State’s appeal:

1. Although the RAT found that there was some risk that ED “would not receive even a basic education, that risk was multi-factorial and could not be either exclusively or predominantly regarded as being due to state action” [6.17];
2. that the RAT’s finding was not unreasonable (judicial review standard) on the information available to it [6.20]; and,
3. on that basis, the trial judge was incorrect in his conclusions [6.21].

Denham CJ, O’Donnell, Laffoy and Charleton JJ concurred. Charleton J issued a concurring judgment (here) with observations relating, among other things, to whether denial of education can amount to persecution. Denham CJ, O’Donnell and Laffoy JJ concurred.

 

Background

In 2006, ED was born within the State to parents of Serbian Askhali ethnicity. The Askhali are regarded as Roma in Serbia. In 2009, the RAT refused ED’s application for refugee status. That decision was appealed by way of judicial review to the High Court. There it was claimed that ED would suffer persecution on a number of grounds if deported to Serbia. In 2011, Hogan J delivered judgment in the High Court allowing ED’s appeal on the sole ground that, as the RAT had found that there was a real risk that ED would not receive basic education if deported to Serbia, it was bound to find that this amounted to persecution or the purposes of s 2 of the 1996 Act. The State sought leave to appeal to the Supreme Court.

 

Appeal

The High Court certified a point of law of exceptional public importance for appeal to the Supreme Court (pre-33rd Amendment). The questions certified were:

(a) Whether discrimination against the group to which a child belongs giving rise to a risk that the child would not get a basic education if returned to his country of origin must be found to amount to persecution within the meaning of Section 2 of the Refugee Act, 1996?

(b) Whether the High Court on an application for judicial review can substitute its own assessment of whether the contended for infringements of basic civil liberties amounted to “persecution” within the meaning of Section 2 of the 1996 Act for that of the Tribunal Member?

(c) Whether the potential denial of a basic education is capable of constituting its sufficiently severe violation of basic human rights so as to amount in law to persecution?

On (a), Clarke distinguished between laws that directly prevented persons of a defined ethnicity from obtaining an education and circumstances which cold contribute to a person not obtaining an education. The first could constitute a denial of rights so fundamental as to meet the threshold of persecution [6.12].

On (b), Clarke J stated “a court’s function is to determine whether the facts, as found by the administrative body, can be sustained on judicial review principles. It is not normally the function of a court to make its own findings of fact except, …” [6.3].

On (c), Charleton J cautioned that a compete denial of education must be shown before it could be capable of constituting persecution [4, 5]. And, as Clarke J stated, it would also be necessary to show that the laws of the state in question directly (and solely) prevented that denial of education.

 

Court’s Observations

Both judgments pointed out that the Court’s jurisdiction was restricted to the legal issues of the case. But the Court expressed its concern that ED is a 10 year old child who was born and has lived his entire life within the State, and there are very real humanitarian concerns which the justices, speaking personally, wished that the relevant authorities would take into account.

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