F.S. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 30 June 2017
• Neutral Citation: [2017] IEHC 621
• Docket Number: [2012 No. 395 J.R.]
• Court: High Court
• Date: 30 June 2017

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED) AND IN THE MATTER OF THE IMMIGRATION ACT 1999 (AS AMENDED) AND IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

F. S.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

[2017] IEHC 621

[2012 No. 395 J.R.]

THE HIGH COURT

Asylum, Immigration & Nationality – The Refugee Act 1996 – The Immigration Act 1999 – The Illegal Immigrants (Trafficking) Act 2000 – Deportation – Discretionary remedy – Council Reg. EC (No. 343/2003 Dublin 11 Regulation) – Illegal entry into State – Lack of well-founded fear of persecution – Forced marriage

Facts: The applicant sought an order of certiorari for quashing the first respondent's decision to deport him. The applicant contended that the first respondent had failed to pay attention to the fact that he had fear from non-State agents in the country of origin. The first respondent argued that it had appropriately assessed the country of origin's information and viability of internal relocation for the applicant in relation to his stated fears and, as per the prevalent laws in the country, the applicant was well equipped to unilaterally dissolve the forced marriage union or relocate to another place.

Ms. Justice Faherty refused to grant the relief to the applicant. The Court held that the first respondent's decision was apt, cogent and rational as it had properly assessed the available country of origin's information. The Court held that an analysis of refoulement was done by the first respondent by exploring the option of internal relocation.

JUDGMENT of Ms. Justice Faherty delivered on the 30th day of June, 2017

1 This is a telescoped hearing, in which the applicant seeks an order of certiorari by way of application for judicial review quashing the decision of the respondent to deport him, as made on 3rd April, 2012.

2 A short extension of time was required to commence the within proceedings, which the court was satisfied to grant having regard to the contents of para. 7 of the applicant's grounding affidavit.

3 The applicant is a national of Pakistan. He says that he left Pakistan in 2001 when he entered the United Kingdom on a student visa. According to the applicant, he overstayed his UK visa and worked illegally in that jurisdiction until he was detected in 2004. On 14th May, 2004, he lodged an application for asylum in the UK which was refused. He subsequently fled to Ireland, arriving on 10th October, 2004. Again, he worked illegally in this jurisdiction until he was detected in early 2008. He applied for refugee status on 6th March, 2008, and completed his application on 10th March, 2008. He completed an asylum questionnaire on 18th March, 2008, wherein he stated that he left Pakistan on account of family problems and lack of freedom.

4 By letter dated 23rd September, 2008, the applicant was advised by the Office of the Refugee Applications Commissioner (ORAC) that it had been determined that his application for asylum was one that should be properly examined by the UK, pursuant to the provisions of Article 13 and Article 16(1)(e) of the Council Regulation EC (No. 343/2003 (Dublin 11 Regulation)). A Transfer Order was duly made on 7th October, 2008. ORAC's determination was upheld by the Refugee Appeals Tribunal by a decision dated 3rd November, 2008.

5 Subsequently, however, on foot of his application for refugee status of 6th March, 2008, the applicant was invited to attend an interview with ORAC on 24th May, 2010. It is common case that the applicant did not attend this interview and by letter dated 22nd June, 2010, he was advised that the investigation of his asylum application under s. 11 of the Refugee Act, 1996, was terminated and that it was recommended that he should not be declared a refugee. According to the applicant, he did not receive the notice calling him for s. 11 interview as he had changed address.

6 The applicant was duly invited by the first named respondent to make representations as to why he should not be deported. Representations were made by his solicitors by letters dated 20th July, 2011, 1st November, 2011 and 11th January, 2012.

7 The representations focused on the applicant's fear of exposure to forced marriage if he was returned to Pakistan, general security conditions within Pakistan, the length of time the applicant had spent in the State and his various medical conditions.

8 In particular, with regard to s. 5 of the Refugee Act, 1996, as amended ('the 1996 Act') (prohibition of refoulement),the applicant's solicitor submitted:

'The applicant fears for his safety if returned to Pakistan, as he does not want to be forced into an arranged marriage and also wants to live an [i]ndependent life which would be denied him in Pakistan and is also afraid of the general prevailing circumstances of repression in the country at present and the dangerous powder keg which could be ignited at any time. The applicant is here six years and nine months approximately has a job to step into, speaks fluent English, has Hepatitis B, has integrated fully into society and would love to make a contribution to the country.'

9 The representations were accompanied by a letter from the applicant which read as follows:-

'There is not just one reason, but lots of reasons why I do not want to return to Pakistan. Everyday people are being killed there. Life is not safe there. Everyday there are suicide bombers. People have attacked the Police Academy in Lahore, and a lot of people died during that attack. Now the United Nations has declared that Pakistan is a war zone. There is no freedom there. There are a lot of restrictions there.

I also have a lot of personal family problems there, that I don't understand. I want to live my life my own way. I cannot choose who I want to marry if I got back there. I will be forced to have an arranged marriage. This is a complicated situation. You tell me who would like to go there in that situation?

I have been here a long time. Sometimes I don't remember who I am. I am mentally disturbed and I am sick. I am attending a doctor at Cork University Hospital.

If I go back, I can't live my life the way I want to. There are no advantages for living in that society. There is no justice. Rich people buy the justice, but poor people can't buy justice. There is no justice system there. There is no order there. Law is not equal. I want to become normal. I want to start my life here.'

10 The applicant also furnished a letter which advised that he had an offer of employment in the State. A letter from his landlord was also furnished advising of the applicant's good character. There were other letters of similar ilk.

11 On 11th January, 2012, the applicant's solicitor furnished the first named respondent with a medical report which advised that the applicant suffered from depression. In the accompanying letter, the first named respondent was entreated to grant the applicant leave to remain on the basis of his duration in the State, his fluency in English, the fact that he had a job to step into and because of his medical condition.

12 On 12th April, 2012, the first named respondent advised the applicant of the making of the deportation order and that the first named respondent was satisfied that the provisions of s. 5 (Prohibition of Refoulement) of the1996 Act had been complied with.

13 Accompanying the letter and deportation order was a copy of the 'examination of file' pursuant to s. 3 of the Immigration Act, 1999 ('the 1999 Act').

14 The Court was advised that the applicant has in fact been deported to Pakistan on foot of the deportation order.

15 The within proceedings were instituted on 8th May, 2012. In the course of the hearing, it was confirmed by counsel for the applicant that the decision to deport was being challenged on the grounds that:-

1. The first named respondent, in determining whether or not the deportation of the applicant would be in breach of the principle of non-refoulement, erred in law and in fact in finding that the remedy for forced marriage was divorce.

2. The first named respondent erred in law in making a finding in respect of internal relocation without conducting any assessment or identifying any place of feasible relocation for the applicant.

16 At this juncture, it is apposite to set out the first named respondent's considerations on s. 5 of the 1996 Act.

17 The applicant's representations made were addressed as follows:-

'[I]t is noted that the applicant's claim is based upon a fear of serious harm emanating from non-State agents in Pakistan, namely, the people he fears would force him into an arranged marriage. It is noted further, that the applicant has fears in relation to the ongoing security situation in Pakistan. In relation to the applicant's stated fear relating to undergoing a forced marriage, country of origin information should be examined in order to assess the likelihood of the applicant being able to avoid such a marriage in the event of his return to Pakistan. The United States State Department sets out the following in this regard:-

"Although the government generally did not interfere with the right to marry, local officials on occasion assisted influential families in preventing marriages to which the families were opposed. The government also failed to prosecute cases in which families punished members (generally women) for marrying or seeking a divorce against the wishes of other family members..."

...

The preceding item of country of origin information indicates, inter alia, that although arranged (or forced) marriage remains a problem in Pakistan, and that local officials have helped prevent marriages opposed by families, and failed to prosecute certain cases in which a family member married or sought a divorce against the wishes of the...