H. K. [Pakistan] v Minister for Justice, Equality and Law Reform and Another
| Jurisdiction | Ireland |
| Judge | MS. JUSTICE M. H. CLARK, |
| Judgment Date | 05 November 2013 |
| Neutral Citation | [2013] IEHC 479 |
| Court | High Court |
| Date | 05 November 2013 |
[2013] IEHC 479
THE HIGH COURT
REFUGEE ACT 1996 SCHED 2
AZEEZ v MIN FOR JUSTICE UNREP MAC EOCHAIDH 21.12.2012 (EX TEMPORE)
S (AW) v REFUGEE APPEALS TRIBUNAL (ZAIDAN) UNREP DUNNE 12.6.2007 2007/54/11567 2007 IEHC 276
R (H) [BELARUS] v REFUGEE APPEALS TRIBUNAL (MCCABE) & MIN FOR JUSTICE UNREP RYAN 8.10.2010 2011/44/12483 2010 IEHC 510
T (MLT) [CAMEROON] v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LINEHAN) UNREP CLARK 27.6.2012 2012/44/13049 2012 IEHC 568
DA SILVEIRA v REFUGEE APPEALS TRIBUNAL (HURLEY) & MIN FOR JUSTICE UNREP PEART 9.7.2004 2005/15/3102 2004 IEHC 436
IMMIGRATION
Asylum
Application for judicial review - Certiorari - Challenge to negative recommendation of Tribunal - Pakistan - Delay - Error of fact - Forward looking test - Whether errors of facts - Whether complete assessment of claim - Whether forward looking test applied - Azeez v The Minister for Justice Equality and Law Reform (Unrep, Ex tempore, MacEochaidh J, 21/12/2012); S(AW) v Refugee Appeals Tribunal [2007] IEHC 276, (Unrep, Dunne J, 12/6/2007); R(H) (Belarus) v Refugee Appeals Tribunal [2010] IEHC 510, (Unrep, Ryan J, 8/10/2010); T(MLT) v The Minister for Justice, Equality & Law Reform [2012] IEHC 568, (Unrep, Clark J, 27/6/2012) and Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436, (Unrep, Peart J, 9/7/2004) considered - Refugee Act 1996 (No 17), second schedule - Decision quashed; mMatter remitted to be heard afresh before a different tribunal member (2009/953JR - Clark J - 5/11/2013) [2013] IEHC 479
K(H) (Pakistan) v Minister for Justice Equality & Law Reform
Facts: The applicant, who was a member of the Ahmadi community, arrived in Ireland from Pakistan on the 11 th August 2006 and soon after applied for refugee status on the basis that he was in fear of serious harm and persecution if he was returned to his native country. It was the applicant”s contention that he had been targeted in Pakistan because of his membership of the minority Ahmadiyya movement religion, especially by a group known as Khatam-e-Nabuwat. In particular, the applicant outlined his problems with a Dr. [S], who was a member of Khatam-e-Nabuwat and the tenant of premises owned by the applicant. Allegedly, Dr. [S] refused to vacate the premises when requested to do so by the applicant, which resulted in the latter initiating court proceedings for possession. It was said that the relationship between the two subsequently deteriorated, and that the applicant was threatened, assaulted and shot at as a result. The applicant claimed that he reported these incidents to police, but that they refused to deal with his complaints when they were informed by Dr. [S] that he was an Ahmadi. The applicant then failed to attend court in respect of the possession proceedings after he was assaulted and threatened, which resulted in an arrest warrant being issued against him. After this, he alleged that he moved home but was assaulted once again because of his religious beliefs, which led to him leaving the country.
The application for refugee status was rejected by the Refugee Applications Commissioner. An appeal was launched which was similarly rejected before the Refugee Appeals Tribunal (‘the Tribunal’). It was said that asylum should be refused because the sole basis of the application was nothing more than a property dispute, which meant international protection was not required. Internal relocation and state protection was, therefore, not considered. An application for judicial review was made with the applicant arguing that the appeal had not been properly considered or understood as evidenced in the written decision of the Tribunal that said that the applicant claimed he would be targeted by the Ahmadi group if he was returned to Pakistan. The written decision also stated that the applicant had not experienced any great difficulties in Pakistan because of his religious beliefs prior to his dealings with Dr. [S] despite the fact that the applicant had provided evidence of previous difficulties and the fact that the written decision noted and accepted that he was involved in an incident in 1984 where several Ahmadi people were attacked and killed. It was further argued that the Tribunal had failed to apply a forward looking test in the case to determine whether there was a substantial risk of serious harm to the applicant if he was returned to his native country and whether state protection and internal relocation would be available.
Held by Clarke J that because it was well established that Ahmadi people faced extreme discrimination in Pakistan – by both private individuals and in specific legislation - it was important that a protection decision maker established whether an applicant was in fact a member of that religion. It was also said that country of origin information made it clear that persecution of Ahmadi people was especially high in areas where the Khatam-e-Nabuwat operated. It was said that in the applicant”s case, the Tribunal had accepted that he was an Ahmadi but said that his religion played no part in his engagement with Dr. [S]. By coming to this conclusion, it was held that only part of the applicant”s claim had been considered; in particular, it was said that an assessment of the discrimination the applicant faced prior to his difficulties with Dr. [S] was absent. Further, the Tribunal had failed to properly consider how the applicant”s faith had disadvantaged him in his dealings with Dr. [S] and Pakistani police.
It was also held that the Tribunal had been required to consider whether state protection was available if the applicant was returned to his native country because such a test was always relevant where it was established that an applicant was a member of a social group whose members suffered harassment and discrimination which was capable of amounting to persecution for Convention reasons. Such an assessment was required even if the Tribunal, after a proper consideration of the applicant”s claim, had been satisfied that the application was solely based on a property dispute. Because the applicant”s claim had not been considered in full and a forward looking test had not been applied, it was held that the Tribunal”s decision had to be quashed.
Decision of the Refugee Appeals Tribunal quashed. Appeal remitted for fresh consideration.
The applicant seeks an order of certiorari quashing the decision of the Refugee Appeals Tribunal (RAT) dated the 24 th June, 2009, to make a negative recommendation to the Minister in relation to his asylum application. He is a member of the Ahmadi community from Pakistan and argues that the Tribunal failed to apply a forward looking test in his case. Mr Ian Whelan B.L. appeared for the applicant instructed by Travers and Co. solicitors and Ms Siobhan Stack BL appeared for the respondents.
The applicant arrived in Ireland on the 11 th August, 2006, and sought asylum on the 15 th August, 2006. Following an oral hearing before the Refugee Appeals Tribunal on the 6 th November, 2007, a negative recommendation was made by decision dated the 24 th June, 2009. This decision was notified to the applicant by letter dated the 14 th August, 2009, which was received by him on the 17 th August, 2009. The proceedings before this Court were issued on the 17 th September, 2009, and are therefore outside the statutory time period. The applicant seeks an extension of time in the order of 16 days. The reasons for the delay in issuing proceedings were explained in his affidavit and are accepted by the Court and the extension will therefore be granted.
The applicant's background as a Punjabi and a member of the minority Ahmadiyya religion were accepted by the Tribunal Member. He claimed that he came to Ireland (via the United Kingdom) from Lahore in Pakistan, where he was married with four children. He fears that if he is returned to Pakistan he will face persecution based on his Ahmadi status. He gave evidence of experiencing such persecution in the past; on one occasion a group called Khatam-e-Nabuwat (which is vehemently opposed to the Ahmadiyya faith) attacked the mosque he attended and worshippers were killed and others arrested. After that incident the mosque closed and the Ahmadi community began attending prayer meetings at the applicant's house. Khatam-e-Nabuwat became aware of this and began harassing those attending. The applicant...
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