AR v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Eagar |
| Judgment Date | 03 July 2015 |
| Neutral Citation | [2015] IEHC 420 |
| Docket Number | [2012 No. 197 J.R.] |
| Court | High Court |
| Date | 03 July 2015 |
[2015] IEHC 420
THE HIGH COURT
JUDICIAL REVIEW
Eagar J.
[2012 No. 197 J.R.]
Asylum, Immigration & Nationality – S. 13 (6) (c) of the Refugee Act 1996 – Paper only appeal – S.9 of the European Communities (Eligibility for Protection) Regulations 2006 – Fear of persecution – family feud – Particular social group
Facts: The applicant sought an order of certiorari against the decision of the first named respondent affirming the decision of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The applicant contended that he belonged to a particular social group within the meaning of Convention by virtue of family membership and land ownership and that he was in danger due to a family dispute over land. The applicant alleged that the first named respondent had made an unreasonable observation about the delay on the part of the applicant to file the asylum application.
Mr. Justice Eagar refused to grant an order of certiorari against the decision of the first named respondent. The Court held that the applicant's fear of persecution had no nexus with him being a member of a particular social group. The Court found that being a member of a family having a feud over land would not confer the status of ‘particular social group’ to the applicant under s. 10 (1) (d) of the European Communities (Eligibility for Protection) Regulations 2006. The Court observed that the first named respondent's decision that the delay on the part of the applicant negated a well-founded fear of persecution was erroneously made; however, the Court held that it would not render the entire decision unlawful.
This is a telescoped hearing seeking an order of certiorari of the decision of the Refugee Appeals Tribunal to affirm the decision of the Refugee Applications Commissioner that the Applicant is not to be declared a refugee.
The proceedings are grounded by the affidavit of the Applicant who said that he was a national of Pakistan, he was born in Sahiwal, Punjab on the 6th May 1988. He said that he became embroiled in a family feud relating to land and business. He said his brother and nephew were killed in this dispute by another brother and he believes that he would be killed if he did not flee. He fled Pakistan on the 28th April 2011 and believed that he was going to Canada. He believed that he was going to be left in Ireland for a short time only before proceeding on to Canada. When it became apparent that he was not being collected for the onward flight to Canada, he applied for asylum on the 23rd August 2011. He was interviewed on the 13th September 2011 in relation to his asylum application by the Refugee Applications Commissioner and was notified by letter dated the 24th October 2011 that the Commissioner had refused his asylum status. The Refugee Applications Commissioner also found that the Applicant had failed to make an application as soon as reasonably practicable after arriving in the State and that as the Applicant had not provided a reasonable explanation for failing to claim asylum s. 13(6)(c) of the Refugee Act 1996 (as amended) applied to the application which is a paper only appeal. A notice of appeal was submitted to the Refugee Appeals Tribunal dated the 27th January 2012 and by letter dated the 23rd February 2012 he was notified that his appeal was unsuccessful. An application was made on the 7th March 2012 in respect of these proceedings.
An issue arose in relation to the grounds upon which relief was sought and I propose to set these out in full initially before dealing with the Tribunal's decision and the Applicant's case.
The Tribunal erred in law in determining the appeal of the Applicant almost exclusively on the basis that the Applicant delayed in applying for asylum.
1) The Tribunal further erred in law in failing to state any reason for rejecting the explanation of the Applicant for the delay, namely his expectation that his final destination was Canada.
2) The Tribunal erred in law in failing to consider case-specific evidence including FIR's (First Information Reports) when making adverse credibility findings and also when finding that internal relocation is available to the Applicant.
3) The Tribunal erred in law in finding that the Applicant has successfully relocated before departing Pakistan and failed to consider that the Applicant spent that period in hiding.
4) The Tribunal erred in law in making adverse credibility findings based on conjecture and relating to peripheral matters.
5) The Tribunal erred in law in failing to have any regard to the country of origin reports and the evidence of past persecution.
6) The Applicant has not been afforded an effective remedy against the first instance determination of his application for asylum before a court or tribunal within the meaning of Article 39 of the Council Directive 2005/85/EC.
7) The Tribunal erred in law in taking into account matters irrelevant to its determinations and/or failed to take into account relevant consideration.
8) The Tribunal erred in law in failing to lawfully speculate on the likelihood of the exposure of the Applicant to persecutory risk on refoulement to Pakistan in the light of his person history.
9) Such further or other grounds as may be adduced in due course.
The submissions on behalf of the Applicant state that the legal issues raised in reliefs 2 and 3 had already been resolved by the decision of the European Court of Justice in HID and BA and that ground claiming that an effective remedy was not provided, at ground 6, in the particular circumstances of this case, remains live.
The decision of the second named Respondent is short but commences in the analysis of the Applicant's claim with the evidence of the interview by the Commissioner on the 13th September 2011 (the section 11 interview). The Applicant in this interview locates his fear in a family dispute which occurred subsequent to the death of the Applicant's father in 1992. The Applicant recounts that his brothers began to quarrel after each had not married. At Q. 20 of this interview the Applicant stated:-
‘I have a fear if I go back my elder brother Imran will kill me. After the death of my father my brothers were working together and were quarrelling. It did not involve me at that time. In 2004 my three brothers all got married. After that they quarrelled a lot with each other. In April 2008 I was coming from college. I received a phone call from home that they were quarrelling with each other. When I reached my home it was burnt. My brother Irfan and his son were burnt in the fire. Irfan made a report to the police. My brother was running a generator for electricity and Imran threw a cigarette onto the generator. I brought them to CMH Hospital in Kharian. I brought Irfan to Ittefaq Hospital in Lahore. On the 23rd April his son died. On the 1st June Irfan died. After the police did a First Information Report the Applicant said he sent the FIR to the Governor of Punjab. He did not get a response. The FIR contained a statement before he died from Irfan that said that while he was putting petrol in the generator that his brother (Imran) threw a cigarette into the generator. I was given different dates to go to the court to make a statement. After that I went to the court and the police several times to give a statement about what happened. After that Imran started quarrelling with me. Then Imran accused me of stealing the money and jewellery from my home. After that Imran burnt his factory and he accused me of doing it. After the police started investigations they were trying to arrest me but they did not arrest me. After that I went to Imran's home and stated to him that I did not feel it was good what he was doing to me. Then he started beating me and trying to shoot me. But I shot his leg. After that the police tried to arrest me but I escaped from that place. After that I went to Lahore.’
He was asked by the Commissioner's officer that it did not make any sense that his brother would burn down his own factory. He asked why would he burn down his own business in order to blame it on the Applicant. The Applicant answered that the factory was closed at that time. It was out of season. It was a cotton factory. He wanted the police to arrest and beat the Applicant. He was trying to close the other case of his brother and nephew by accusing the Applicant of burning the factory. He was asked what dates he lived in Lahore and he said that it was from the 17th September 2010 until the 28th April 2011 and he was asked did he have any problems in Lahore and he said that he was hiding there for about 15 months and he did not go out. He said that Imran and his brother-in-law were looking for him all the time and he decided that it was better to leave Pakistan. The first named Respondent broadly reflected these questions in his analysis of the Applicant's claim.
The first named Respondent said that the Applicant's case was posited on fear of certain members of his family. He said that it was difficult to dissent from the statement or question in the interview that the population of Pakistan is over 187 million people and it does not seem plausible that the Applicant's brother would be able to find him. The Applicant, it is to be reiterated, was not located in the 20 months that he lived in Lahore.
Despite...
To continue reading
Request your trial