A.A. v Shipsey s/a The Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Faherty |
| Judgment Date | 27 January 2017 |
| Neutral Citation | [2017] IEHC 33 |
| Docket Number | [2015 No. 125 J.R.] |
| Court | High Court |
| Date | 27 January 2017 |
[2017] IEHC 33
THE HIGH COURT
JUDICIAL REVIEW
Faherty J.
[2015 No. 125 J.R.]
Asylum, Immigration & Nationality – Reg.7 of the European Communities (Eligibility for Protection) Regulations 2006 ('2006 Regulations') – Subsidiary protection – Refugee Appeals Tribunal – Family unity in international protection law – Personal circumstances – Internal relocation
Facts: The applicant sought an order of certiorari for quashing the decision of the respondent that affirmed the recommendation of the Refugee Applications Commissioner ('Commissioner') that the applicant was not eligible for subsidiary protection. The issue in the case was whether the respondent considered the applicant's personal circumstances, as required under Reg.7 of the European Communities (Eligibility for Protection) Regulations 2006. The major contention raised by the applicant was that his wife and children had been granted subsidiary protection by the Commissioner arising out of the same circumstances while the first respondent rejected his claim for protection, on appeal.
Ms. Justice Faherty granted an order of certiorari and thus, quashed the decision of the respondent and remitted the matter for a de novo hearing before a different Tribunal member. The Court stated that reg.7 (2) of the 2006 Regulations had mandated a decision maker to consider the applicant's 'personal circumstances.' The Court also held that the respondent should have considered the applicant's marital and family status for the internal relocation alternative. The Court further observed that the order of the respondent was a denial of fair procedures to the applicant and that the respondent should have considered the length of time the applicant had spent in the State as a part of his personal obligations.
This is an application for judicial review where leave was granted by order of MacEochaidh J. on 9th March, 2015, on a substantial grounds threshold for the applicant to challenge by way of application for an order of certiorari to quash the decision of the respondent which affirmed the recommendation of the Refugee Applications Commissioner that the applicant was not eligible for subsidiary protection.
The applicant is a Pakistani national who first arrived in the State in August, 2002, on foot of a five year student visa. In the course of a return visit to Pakistan in 2005, he met a woman T.N. and they developed a relationship. However, it had been arranged by T.N.'s family that she was to marry another man and, accordingly, the applicant and T.N. conducted their relationship in secret. In April, 2006, they married in secret in Pakistan and shortly thereafter T.N. became pregnant. The applicant then returned to Ireland to continue his studies. He left money with a friend in Pakistan for the purpose of arranging a visa for T.N., who was to follow him to Ireland. At some point after the applicant left Pakistan, T.N.'s family became aware that she was pregnant and when they discovered that she had married in secret without their permission they abused and beat her. T.N. came to Ireland in or about 2006. Both the applicant and T.N. applied for asylum in the State. Both applications were refused. Their first child was born in Ireland in February, 2007, with a medical condition (frontal plagiocephaly) which may well have been caused by the severe beatings which were inflicted on T.N. by her family in Pakistan. The child continues to require medical treatment for her condition.
In 2007, the applicant and T.N. separately made applications for subsidiary protection. The applicant's claim was based on his fear of serious harm in Pakistan 'for reasons of ... "death penalty or execution", "torture or inhuman or degrading treatment or punishment of a person in his or her country of origin".' The basis of his claim was that he could not return to Pakistan 'as his wife's family would kill him, his wife and his children'. The applicant also claimed that in Pakistan there was a generalised situation of violence and that he would not be safe anywhere in Pakistan. Similarly, the principal basis of T.N.'s application was that she would be at risk of serious harm from her family members in addition to fear of generalised violence in Pakistan.
In decision dated 5th February, 2014, the Commissioner found the applicant credible as to his account of events in Pakistan, albeit it was not considered that the applicant's claimed fear from his own family in Pakistan was sufficient to believe that he would be at risk from them.
Having established the applicant's credibility vis-à-vis events regarding his wife's family, the Commissioner assessed whether the applicant would be at risk of serious harm for the purposes of the European Union (Subsidiary Protection) Regulations 2013 ('2013 Regulations'). As regards the likelihood of the applicant being at risk from the death penalty or execution, the Commissioner found:
'Based upon an assessment of all the facts and personal circumstances relating to the applicant, including the [country of origin information]... on honour killings of women in Pakistan, I find that the applicant would not face a real risk of the death penalty or execution if returned to his country of origin'.
However, the Commissioner did find that 'based upon an assessment of all the facts, including the applicant's credibility and ... [country of origin information] ... the applicant would be at risk of being attacked by his wife's family and therefore faces a real risk of torture or inhuman or degrading treatment or punishment if returned to his country of origin.' It was not found that the applicant would be at risk from indiscriminate violence.
The Commissioner, having considered country of origin information, went on to find that state protection would be available to the applicant if he were to return to Pakistan. It was also found that an internal relocation alternative was available to the applicant in that he could reasonably be expected to relocate to Lahore. It was thus concluded that substantial grounds had not been shown by believing that the applicant would face a real risk of suffering serious harm if returned to Pakistan and accordingly he was not found to fall within the definition of a person eligible for subsidiary protection.
The Commissioner's decision on T.N.'s application for subsidiary protection (which included the dependant children) issued on 15th April, 2014. As with the applicant, there were no issues as to T.N.'s credibility as to the events which occurred in Pakistan. The Commissioner duly concluded that based upon an assessment of the facts and the personal circumstances of T.N., including country of origin information on honour killings in Pakistan, that she and her dependants would face a real risk of the death penalty or execution if returned to Pakistan and it was also found that T.N. and her dependants would face real risk of torture or inhuman or degrading treatment or punishment if returned to her country of origin. Regarding T.N.'s personal circumstances in light of country of origin information, the Commissioner found that effective state protection would not be available to her in Pakistan. The Commissioner also found that the internal relocation alternative was not available to T.N. The Commissioner's finding in this regard was as follows:
'During her interview the applicant was asked if she could relocate to a different area within Pakistan such as Lahore. The applicant was asked how her family would be able to trace her (and her dependants) in Lahore considering its population more 12 million people. The applicant replied that it is not difficult to trace someone through police officers. I do not find the applicant's answer acceptable as her family would not know that she has returned to Pakistan unless she told them. And if they knew, I do not find that a family would realistically be able to find the applicant in a different area of Pakistan, considering its population. Therefore, there are safe areas the applicant could relocate to.
With this said, I must assess whether internal relocation would be a realistic option for the applicant and her dependants. The applicant has been in Ireland for 7 years and has no significant education or employment history. The applicant's daughter was born with frontal plagiocephaly and requires constant medical attention. The applicant has two more children. The applicant would not be able to rely on the support of her family.
Therefore, I find that internal relocation alternative is not available to the applicant in that she could not reasonably be expected to relocate within Pakistan.'
Based on the findings made, the Commissioner was of the view that T.N. and her dependents were eligible for subsidiary protection.
The applicant appealed the Commissioner's recommendation on his subsidiary protection application to the Refugee Appeals Tribunal. In the course of his appeals submission, he advised, inter alia, that his wife T.N. had been granted subsidiary protection.
A hearing of the applicant's appeal took place on 4th December, 2014. The decision of the Refugee Appeals Tribunal issued on 6th February, 2015.
As the decision makes clear, the Tribunal accepted, on balance of probability, the applicant's claims that his wife's family would seek to kill him if he returned to Pakistan as revenge for marrying their daughter who was promised to another man. As with the Commissioner, the Tribunal did not accept the applicant's claims in regard to his alleged fear of his own family.
Having considered country of origin information on honour killings, including information on the killing of men who married...
To continue reading
Request your trial