GN (Pakistan) v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 26 June 2015 |
| Neutral Citation | [2015] IEHC 399 |
| Court | High Court |
| Date | 26 June 2015 |
| Docket Number | Record No. 2010/38 JR |
[2015] IEHC 399
THE HIGH COURT
JUDICIAL REVIEW
Stewart J.
Record No. 2010/38 JR
IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), IN THE MATTER OF THE IMMIGRATION ACT 1999 IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 Section 3(1)
Asylum, Immigration & Nationality – The Refugee Act 1996 – Appeal against the decision of the Refugee Appeals Tribunal – Fear of persecution – Reg. 5 (3) of the European Communities (Eligibility for Protection) Regulations 2006
Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent affirming the decision of the Offices of the Refugee Application Commission that the applicant should not be declared a refugee. The applicant contended that the first named respondent had failed to address the core issue of the applicant's claim of fear of persecution in the country of origin being under vigil of the Taliban.
Ms. Justice Stewart granted an order of certiorari to the applicant and remitted the matter for de novo consideration by a different member of the first named respondent. The Court held that the first named respondent's determination of adverse credibility findings in the absence of documentation supporting the applicant's version was not reasonable. The Court found that there was ambiguity in the decision of the first named respondent that on the one hand acknowledged the death of family members of the applicant by the Taliban and on the other hand rejected the plea advanced by the applicant that he was spared and kept under vigil to seek explanations.
This is telescoped hearing for judicial review seeking certiorari to quash a decision of the Refugee Appeals Tribunal dated 29th September, 2009, affirming the recommendation of the Offices of the Refugee Application Commission that the applicant should not be declared a refugee, and remitting the appeal of the applicant for de novo consideration by a different tribunal member.
The applicant is a national of Pakistan and was born on 23rd March, 1973, in the north western area of Pakistan. His stated difficulties arose as a result of the conflict between the Taliban and the government forces. The following is the applicant's account of the events that gave rise to the alleged persecution.
The applicant married a woman from Gondo on 26th June, 2007, which is located in Swat Valley, an area controlled by the Taliban, and he visited his wife's family there regularly. On 10th March, 2008, government forces killed a number of Taliban supporters. On 18th March, 2008, Taliban members called to his in-laws' house and warned him to provide them with information in respect of his contacts with the state authorities. He believes he was suspected on account of not being from the area. On 28th March, 2008, shots were fired at him. On 3rd April, 2008, his wife was with him at her parent's house when the Taliban again arrived. The applicant succeeded in fleeing. However, his parents-in-law were killed and his wife was abducted. He has not learned of her fate since then. His shop was bombed on 12th April, 2008, and he was again shot at on 5th May, 2008.
The applicant states that he made arrangements with an agent; he fled Pakistan, arriving in Dublin airport on 15th July, 2008. The applicant applied for asylum on 16th July, 2008 on completed an ASY1 form shortly thereafter. A Pashto interpreter was provider for the s.11 interview, which was conducted on 9th February, 2009. The Offices of the Refugee Applications Commissioner (ORAC) issued the s.13 report in respect of the applicant's claim, signed by two officers and dated 25th and 29th February, 2009. The recommendation contained therein was that the applicant not be declared a refugee. The commissioner made eight credibility findings against the applicant. The report goes on, under the heading “state protection”, to consider the availability state protection and the feasibility of internal relocation. The report does not make a definitive findings in relation to the aspect of state protection, but does state, in the final sentence at p.72 of the booklet: ‘It is considered difficult to believe that the Taliban would be able to track him down in Karachi and his alleged fear that they would do so is not considered to be a valid one.’
The applicant appealed the decision of the ORAC by form 1 notice of appeal, sent by the applicant's solicitors on 1st April, 2009. The applicant attended at the offices of the Refugee Appeals Tribunal (RAT) on 26th August, 2009, for an oral hearing in respect of his claim.
The RAT issued a negative decision in respect of the applicant's claim, affirming the recommendation of the ORAC that the applicant not be declared a refugee. The decision was dated 29th September, 2009, and issued to the applicant on 3rd December, 2009, by registered post. That letter was returned to the RAT marked “not called for”. The decision was re-issued to the same address on 18th December, 2009, and this was received by the applicant.
The tribunal member made a series of observations in regard to the applicant's claim, set out at pp.115-117 of the booklet. First, the tribunal member refers to a report from Refworld of 14th January, 2009, which is a Human Rights Watch report published on the UNHCR's Refworld website, and quotes from part thereof as follows:
‘Throughout 2008 Taliban suicide bomb attacks and operations continued in the settled areas of the north west frontier province. Battles between pro Taliban militants and government security forces in the NWFP's Swat valley displaced civilians and led to severe insecurity.’
The tribunal member then goes on to state:
‘…I find it difficult to accept that the Taliban members would allow Mr. [applicant] one week to give an explanation as to his activities if, in fact, they actually suspected him of being involved in providing information to the army that led to the killing of eight or ten of their members. The general profile of the Taliban would lead one to think that the Taliban would take out revenge on somebody who had provided information to the authorities on them and especially if such information led to the loss of life of any of their members. This is one items of credibility that I intend to take into account in the overall assessment of this appeal. It is a significant item when one considers that the main reason why this man left Pakistan was related to the activities of the Taliban and his general fear of them.’
The tribunal member then avers that there were five attacks that the applicant alleges were perpetrated upon him or members of his family, all of which he says he reported to police. The lack of evidentiary documents to substantiate the police reports affected the applicant's credibility, according to the tribunal member who states: ‘The absence of such documentary evidence must question as to whether or not these incidents ever took place.’
The decision then goes on to deal with the issue of state protection, quoting from newspaper articles where the Pakistani state authorities had prevented attacks, regained areas from Taliban control and arrested insurgents. The tribunal member then states that:
‘It is clear from the foregoing extracts that the proactive approach being taken by the security forces must provide some form of protection for this Appellant. There is no absolute guarantee of protection within any jurisdiction. There is a functioning police force and army in Pakistan as is evident from the foregoing country of origin information.’
The tribunal member then refers to...
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