EY (Pakistan) v Refugee Appeals Tribunal

JurisdictionIreland
JudgeMs. Justice Stewart
Judgment Date17 June 2016
Neutral Citation[2016] IEHC 340
Date17 June 2016
CourtHigh Court
Docket Number[2013 No. 942 JR]
BETWEEN
E.Y. (Pakistan)
APPLICANT
AND
PAUL CHRISTOPHER (SITTING AS THE REFUGEE APPEALS TRIBUNAL), THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

[2016] IEHC 340

[2013 No. 942 JR]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S. 13 (5) of the Refugee Act, 1996 – Appeal against the decision of the Refugee Appeals Tribunal – Certiorari – Fear of persecution – Membership of particular social group – Adverse credibility findings

Facts: In the present telescoped hearing, the applicant sought an order of certiorari for quashing the decision of the first named respondent to affirm the decision of the Refugee Applications Commissioner refusing to grant refugee status to the applicant. The applicant alleged that his core claim of persecution in the country of origin, owing to his conversion from Islam to Christianity, was not paid any attention by the first named respondent and that the first named respondent attempted to make new credibility findings against the applicant without putting him on notice.

Ms. Justice Stewart refused to grant leave to the applicant to apply for an order of certiorari against the decision of the first named respondent. The Court, in line with the judgment of Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353, held that the determination of the credibility of a claim to a well-founded fear of persecution rested solely with the first named respondent and the High Court would not substitute its own views. The Court observed that the assessment of credibility must be made from taking the facts and circumstances of each case and the reasons deducted therefrom must bear a legitimate connection to the adverse finding. The Court found that there was nothing incorrect in the procedure adopted by the first named respondent in making the impugned decision based on the availability of evidence that was presented before it.

JUDGMENT of Ms. Justice Stewart delivered on the 17th day of June, 2016.
1

This is a telescoped hearing seeking, inter alia, an order of certiorari in respect of the decision of the Refugee Appeals Tribunal (hereinafter referred to as “the RAT”) to affirm the decision of the Refugee Applications Commissioner to refuse to grant the applicant refugee status, brought pursuant to a Notice of Motion dated 12th December, 2013.

Applicant's submissions
2

The applicant is a Pakistani national who seeks refugee status in this state on the basis of a fear of persecution in his home country due to his Catholic religious beliefs and, in particular, his conversion from Islam in Pakistan.

3

The applicant arrived in the State on 3rd May, 2013, and appears to be residing in Drogheda, Co. Louth. It is stated in the applicant's outline submissions that he travelled to Belgium and Spain before returning to Ireland on 29th May, 2013. It is also stated that the applicant informed the immigration officials at Dublin Airport of his intention to apply for asylum. He was allowed to apply for asylum in June 2013, having first been released from Garda custody.

4

Mr. O'Dwyer, S.C., with Mr. Whelan, B.L. for the applicant, submit that the applicant's refugee application was initially rejected by the Refugee Applications Commissioner (ORAC). The applicant was not permitted to partake in an oral hearing before the Refugee Appeals Tribunal (RAT) due to his delay in applying for asylum at an date earlier than June 2013, which was based upon the Commissioner's decision to exercise his discretion under s. 13(5) of the Refugee Act, 1996 (as amended) to include a finding in respect of the applicant pursuant to s. 13(6)(c) of the 1996 Act.

5

It is stated in the applicant's submissions that the:

‘…primary submission of the applicant is that he did not receive an effective remedy in respect of the first instance decision of the ORAC as the decision at the Refugee Appeals Tribunal make the same and some other personal credibility findings against the applicant which weren't put to him and which he couldn't properly address.’

6

The applicant submits that because the RAT appeal was on a non-oral basis, a heightened level of scrutiny by the RAT is necessary when considering the applicant's documents. In this regard they rely upon the decision of the CJEU in MM v. The Minister ( Case C-277/11 22nd Nov, 2012) and by Hogan J. in the same case MM v. The Minister [2013] IEHC 9; the decision of Clarke J. in V.M. (Kenya) v. Refugee Appeals Tribunal [2013] IEHC 24; B.Y. (Nigeria) v. Refugee Appeals Tribunal [2015] IEHC 60 and E.O. (Nigeria) v. Refugee Appeals Tribunal [2015] IEHC 380.

7

Along with the perceived adverse consequences to the applicant by the use of a non-oral hearing, the applicant also submits that the reasons provided by the RAT and the credibility findings so found lack any foundation. In this respect, the applicant relies upon the decision of Cooke J. in I.R. v. MJELR [2009] IEHC 353 and of the decision of MacEochaidh J. in Omidiran (An Infant) v. Minister for Justice and Equality (Unreported, High Court, MacEochaidh J., December 20th, 2012). The applicant says that the reasons proffered by the RAT as to credibility findings are ‘not cogent and well founded’. The applicant relies, in particular, upon a letter provided by a church that seemed to indicate, in the applicant's view, that he is a practising Catholic. The applicant argues that this is an acknowledgement that he is a convert from Islam to Catholicism, which is the basis of his claim.

8

The applicant also states that the RAT's findings in relation to travel are peripheral to the claim made by him and therefore excessive weight was placed on these matters by the Tribunal. Reliance is placed upon the decision of Eager J. in B.A. v. RAT (Unreported, High Court, Eagar J., 11th February, 2015) in this regard.

9

The applicant also argues that new credibility findings were made by the RAT which were not then put to the applicant. The applicant contends that this occurrence is a fundamental breach of fair procedures which voids the decision.

Respondents' submissions
10

Ms. O'Sullivan, B.L. for the respondents placed emphasis upon the fact that the applicant did not apply for asylum in Ireland on 3rd May, 2013, when he arrived here first. The applicant remained in the state for three weeks before travelling on a false passport to Belgium and Spain and then returning to Ireland.

11

The respondents submit that the applicant's assertion that he had wanted to apply for asylum but was placed in Garda custody and not allowed to do so has not been previously pleaded and as a result cannot be relied upon in evidence.

12

In the applicant's “ASY 1 Form”, the applicant stated that he converted from Islam to Christianity in January, 2013. Pakistan is a predominantly Muslim country and an Islamic extremist group called Jamaat-e-Islami beat him, threatened him and ordered him to leave and go where Christians live.

13

In the applicant's questionnaire, the applicant stated that on 10th April, 2013, four men with long beards and wearing turbans, two of whom had revolvers, knocked at the door and when the applicant answered one of the men hit him on the forehead with the butt of his weapon. The men threatened the applicant with his life if they found him again on “sacred land”.

14

The applicant claims that he was inspired to convert to Christianity by a Christian friend of his and by the Christian ideology about which the applicant learnt. At pg. 5 of the applicant's s. 13 interview, the applicant states ‘…also I compared and balanced Islam and Christianity’. The applicant was also asked as to why he chose Catholicism in particular? The applicant answered ‘That's the Christian that I know. That in my research is the top of Christian. I was inspired by my surroundings and where I lived.’ The applicant replied at interview that he attended mass nearly every Sunday. The applicant also states that he conducted his own research into the Catholic faith by reading, going on the internet and watching Christian movies. He stated at interview that he did not attend a Catholic church in Ireland as he did not have access, but that he had visited St. Patrick's church in Dublin and St. Francis' church.

15

At pg. 6 of the applicant's s.13 interview, the applicant responded that he had not attended any ceremony nor had he received any sacrament upon his conversion to Christianity because he was short of time. The applicant was also asked in interview whether he had been baptised and answered that ‘No water was poured on me but water was sprinkled on me.’ The respondents submit that there was a contradiction between on the one hand the applicant believing that there was no ceremony undertaken, and on the other hand, him being baptised. The applicant believed that the baptism held great significance to him, saying ‘It's great, it's very special to me…’.

16

The applicant was unable, when asked, to name the books of the Bible, stating that he was in a ‘learning process’ and that he only read a basic version of the bible from which he read passages. Furthermore, the respondents highlight that the applicant was unable to name any of the disciples nor was he able to identify any of the Ten Commandments. When asked about the significance of the mass and what prayers he would say at mass, the applicant responded ‘When you pray you talk about Jesus and different part of the testimonies. Jesus is all about love, shares the bread with people, does miracles, he is the son of God it is all about loving and sharing food, don't commit adultery, God loves children’. The applicant was unable, according to the respondents, to actually refer to the contents or names of any of these ‘prayers’.

17

The applicant was also asked about the...

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