F.A. (Pakistan) v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 28 July 2015
• Neutral Citation: [2015] IEHC 502
• Court: High Court
• Docket Number: [2012 No. 96 J.R.]
• Date: 28 July 2015

[2015] IEHC 502

THE HIGH COURT

JUDICIAL REVIEW

Eagar J.

[2012 No. 96 J.R.]

BETWEEN

F.A. (PAKISTAN)

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL (CONSTITUTED OF BEN GARVEY BL, TRIBUNAL MEMBER) AND THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENTS

Asylum, Immigration & Nationality – Appeal against the decision of the Refugee Appeals Tribunal – S. 2 of the Refugee Act, 1996 – Fear of persecution – Country of origin information – Art. 18 of the International Covenant on Civil and Political Rights – S. 4 of the European Convention on Human Rights Act, 2003 – European Union Qualification Directive – Whether evidence of applicant credible – Assessment of future persecution

Facts: The applicant sought an order of certiorari against the decision of the first named respondent that the applicant had failed to establish a well-founded fear of persecution and hence, he should not be declared a refugee. The applicant who came to study engineering in Ireland on a student visa contended that he had been harassed and beaten by the religious vigilantes in the country of origin as he was a Christian. The respondent rejected the contention of the applicant by making observations that discrimination could exist without persecution and the applicant could not be believed as there existed no real threat to the applicant upon his return given that his family had already been living there.

Mr. Justice Eagar granted an order of certiorari to the applicant for quashing the decision of the first named respondent and remitted the matter for de novo consideration before a different member of the first named respondent. The Court held that the first named respondent had manifestly erred in law by not taking into account the relevant country of origin information that highlighted the prevalent blasphemy and killing of people belonging to the minority in Pakistan. The Court found that the first named respondent was mandated to consider the likelihood of future persecution of the applicant in the face of s. 4 of the European Convention on Human Rights Act, 2003 that judicial notice must be taken of the Convention provisions and principles laid down therein encompassing freedom of thought, conscience and religion. The Court found that the assessment of the credibility of the applicant was unlawful as the first named respondent did not take into account the secondary information contained in the statements of the applicant in the questionnaire and interview under s. 11 of the Refugee Act, 1996 and hence, its decision was unfair and irrational.

JUDGMENT of Mr. Justice Eagar delivered on the 28th day of July, 2015

1 The Applicant is a national of Pakistan who arrived in the State on or about 5th day of September, 2009 on foot of a student visa and who applied for asylum in the State on 24th August, 2011. The relief sought by the Applicant was an order of certiorari quashing the decision of the first named Respondent that the Applicant failed to establish a well-founded fear of persecution as defined under s. 2 of the Refugee Act, 1996 (as amended).

2 The grounds upon which relief sought were:-

1) The Refugee Applications Commissioner had accepted that the Applicant's claim could amount to persecution within the meaning of s. 2 of the Refugee Act, 1996 (as amended) (hereinafter ‘the Act’). Country of origin information was provided which shows there is significant discrimination amounting to persecution of Catholics in Pakistan. The first named Respondent stated that ‘discrimination can exist in societies without amounting to persecution’. The first named Respondent then considered that the Applicant was assaulted once and found this evidence to be lacking in credibility. The first named Respondent therefore expressly, or by necessary implication, held that the situation where a Catholic in Pakistan would not amount to persecution within the meaning of s. 2 of the Act contrary to the Refugee Applications Commissioner's findings (which was not the subject of the appeal, nor was there any cross appeal or suggestion put to the Applicant on notice that it would be an issue in the appeal) and/or contrary to the country of origin information provided. In the alternative this demonstrated that the first named Respondent failed to apply the correct test as to whether there was a forward looking risk of persecution and confined himself to consideration of past acts of persecution only. By reason of the foregoing the stated ground was that the decision is ultra vires, in breach of fair procedures and irrational.

2) The first named Respondent did not deal with any other aspect of the Applicant's claim other than the assault. It was submitted to the Tribunal that due to the blasphemy laws in Pakistan there was a real risk of persecution by the state and this was not considered at all by the first named Respondent. Similarly the Applicant gave evidence (the court's emphasis) of his lifelong fear of persecution in Pakistan as a result of his religion. He cannot live openly in Pakistan as a Christian. This was supported by the country of origin information submitted. However the first named Respondent did not address this at all, and it appears that this falls within the first named Respondent's apparent finding that such discrimination of the Applicant would be subject to does not amount to persecution. As such the first named Respondent has failed to take into account relevant factors, placed undue weight on irrelevant factors and has acted unreasonably, irrationally and is in breach of fair procedures.

3) The first named Respondent did not refer, other than in passing to the country of origin information submitted. The first named Respondent did not give any reasons as to why he did not do so nor did he set out any reasons why the Applicant would not suffer persecution on the basis of country of origin information submitted. This is all the more important in circumstances where the Applicant left Pakistan initially for a period of two years in the hope that the situation would improve there, but in fact the situation has deteriorated. In the premises, the first named Respondent was under a greater duty to consider the country of origin information and the forward looking test in respect of persecution and was irrational and ultra vires not to do so.

4) The first named Respondent held that the Applicant's account of the assault was not credible on three grounds:-

a) The first finding is that he asserts the Applicant gave inconsistent evidence in relation to the August incident. It is not clear exactly how the Applicant's account is not consistent. It may be that the first named Respondent found that there were two different accounts of how the incident terminated. However, all the accounts given by the Applicant are consistent in that it is clear that other people came upon the scheme and he managed to escape.

b) The second finding appears to be that the matter in which the assailants were armed is inconsistent. However, in his questionnaire he stated that they beat him with bats and then one man took out a gun and started firing in the air. At Q. 20 of his interview he stated that they attacked him and he had a painful body and when asked if they were armed he stated they had guns. He gave the same evidence at the Tribunal. (the court's emphasis)

c) The third issue is that the first named Respondent also questioned the motives of the Applicant's assailants in circumstances where the Applicant cannot realistically be expected to account for the actions and motivations of his persecutors.

In the premises, the allegation that the first named Respondent's account of the assault lacks credibility is irrational.

5) The first named Respondent also make credibility findings in respect of the exact dates of the Applicant's medical treatment. The Applicant gave substantially credible and consistent evidence in this regard, and a finding that there was a discrepancy between fifteen days and three weeks is irrational.

6) The first named Respondent states that he considered the Applicant's reasons for failing to apply earlier and finds them implausible on the basis of his assertion and Professor Hathaway's book, which states that ‘if a person is truly fleeing persecution and delays in seeking international protection, such conduct can go to credibility’. The first named Respondent did not give any adequate reasons as to why the reasons were implausible. The Applicant gave clear evidence that when he arrived the Applicant believed the situation in Pakistan would improve over the course of his time in the state. When the matters had not improved, in particular after hearing about the murder of the Governor of Punjab, the murder of the Minister for Minorities and the Aasiya Bibi blasphemy case, where his visa was about to run out he applied for asylum. Aasiya Bibi was a Pakistani Christian woman who was convicted of blasphemy by a Pakistani court and received a sentence of death by hanging. The first named Respondent appears to have misdirected himself in law that where a person does not apply for asylum at the first available opportunity this should be held as a credibility factor and therefore his stated reasons were implausible. The first named Respondent has to give consideration to the reasons put forward as to why there was a delay. The Applicant put forward his reasons but there was no substantive consideration of these reasons. In the circumstances this finding is irrational and ultra vires.

7) The first named Respondent also relied upon a subjective view of the Applicant's demeanour in holding against him on credibility grounds. In the absence of specific issues in relation to his demeanour and presentation at the Tribunal (this court's emphasis), this decision is irrational. The first named Respondent in...