H (S)(Pakistan) and Others v Refugee Appeals Tribunal and Others

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Stewart
Judgment Date18 February 2015
Neutral Citation[2015] IEHC 98
Date18 February 2015

[2015] IEHC 98

THE HIGH COURT

[No. 1456 J.R./2010]
H (S)(Pakistan) & Ors v Refugee Appeals Tribunal & Ors
No Redaction Needed
Approved Judgment
JUDICIAL REVIEW
IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED)
IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000
IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

S.H. (PAKISTAN)
I.H. (PAKISTAN)
S.K.F. (A MINOR SUING BY HER FATHER AND NEXT FRIEND S.H.)
APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND LAW REFORM, ATTORNEY GENERAL IRELAND
RESPONDENTS

IMMIGRATION

Refugee

Refugee Appeals Tribunal - Credibility - State protection - Internal relocation - Failure to make application for refugee status as soon as reasonably practical following arrival in State - Judicial review - Fair procedures - Obligation to provide reasons - Obligation to consider submissions - Whether adverse credibility findings unfairly made - Whether higher level of scrutiny applicable to paper-only refugee hearing - VM v Refugee Appeals Tribunal [2013] IEHC 24, (Unrep, Clark J, 29/1/2013) approved - CCA v Minister for Justice [2014] IEHC 569, (Unrep, Barr J, 25/11/2014) considered - Refugee Act 1996 (No 17), ss 11 and 13 - Relief granted (2010/1456JR - Stewart J - 18/2/2015) [2015] IEHC 98

H(S) v Refugee Appeals Tribunal

Facts: The applicants sought orders of certiorari against the decision of the first-named respondent affirming the decision of the Refugee Applications Commissioner for not giving refugee status to the applicants. The applicants contended that the first respondent erred in law by making credibility findings against the applicant in the paper-only appeal.

Ms Justice Stewart J. granted an order of certiorari to quash the decision of the first-named respondent. The Court held that in the paper-only appeal, when any credibility findings were made, the level of care and diligence exercised must be higher than where the first named-respondent had access to examine the applicant. The Court held that the rejection of documentary evidence with a bald assertion of it being not satisfactory would not meet the ends of justice and the first-named respondent was bound to give reasoned decisions. The Court held that the first-named respondent did not consider the fact that the applicants had already suffered persecution at the hands of the authorities and family in the country of origin. The Court opined that any suggestion of the relocation without making any inquires as to its suitability and conditions from the applicants would not be just and fair.

1

1. This is a telescoped hearing seeking orders of certiorari in respect of the decision of the Refugee Appeals Tribunal (hereinafter referred to as RAT) to affirm the decision of the Refugee Applications Commissioner that the applicants not be declared refugees. The decision of the RAT was made on the 14 th day of October, 2010, and was notified to the applicants no earlier than the 24 th day of October, 2010.

BACKGROUND
2

2. The applicants comprise a family unit namely as follows:

The first named applicant (hereinafter referred to as the husband) was born on the 29 th day of January, 1970; the second named applicant (hereinafter referred to as the wife) was born on the 18 th day of November, 1971; and the third named applicant is the daughter of the first and second named applicants and she was bom on the 24 th day of April, 2001 (and will be hereinafter referred to as the daughter).

3

3. The husband and the wife were married on the 26 th June, 1992 in Pakistan. The applicants allege that since their marriage they have lived through a reign of terror. The cause of this terror allegedly lies in the fact that the wife's family is Sunni Muslim (wahhabi) who work for an extremist militant group and are of the Malik caste. The husband is a Shia Muslim, and is from the Sayed caste, classified as inferior in Pakistan society. The wife's marriage to a third party had been arranged but instead she married the first applicant without her family's permission and, as a result, the applicants allege that each of them has suffered assault and the daughter has also suffered abduction attempts. They further assert that their limited financial circumstances constrained their ability to escape from the reign of terror.

4

4. The applicants claim that the alleged persecution, at the hands of the wife's family, occurred over a period of seventeen years. Over that period, a number of incidents are alleged to have occurred, that the applicants submit amounts to persecution, inter alia, that the wife was assaulted; there was an attempted abduction of the daughter; their family home was attacked; the husband received a head injury; and the extended family home was attacked and a cousin was killed. The applicants state that the wife's family is intent on taking some form of revenge on the daughter, and third applicant in these proceedings, as she is a result of a marriage to which they were opposed.

5

5. The husband's sister resides in Ireland and they maintain they finally left Pakistan with the assistance of the husband's sister in 2009. The applicants arrived in Ireland on the 15 th August, 2009, having travelled here on threemdash;month tourist visas which were issued by the Honorary Consul of Ireland in Karachi. The tourist visas expired on the 14 th day of November, 2009. After that date the applicants remained in this country without any lawful permission.

6

6. The applicants resided with the husband's sister and her family until around the time that their tourist visas expired. At that stage they moved out of the husband's sister's home in Cork and went to reside in a town some miles away. The first applicant states that he resided in that town until they ran out of money and decided to seek asylum in this jurisdiction. He stated that he did not apply for asylum before that time as he did not know about the asylum process but was advised by people in the town in which he had moved to, who were Bengalimdash;speaking asylum seekers, of the possibility of so applying. The applicants applied for asylum on 10 th March, 2010.

7

7. The husband, wife and daughter each made separate applications, firstly, to the Office of the Refugee Appeals Commissioner (ORAC), with the third named applicant, the daughter's application, being brought by her father and next friend, the first named applicant. All three applications were refused and recommendations made that the applicants should not be granted refugee status.

IMPUGNED DECISION
8

8. All three applicants appealed against that recommendation of ORAC to the RAT and three separate decisions were issued in respect of each three claimants. In the RAT decisions it states that the applicants had failed to established general credibility. Further, the tribunal found that state protection may have been available to the applicants had they sought it, rejecting the applicants claim that they had sought such assistance to no avail in the past. The tribunal further made findings in respect of internal relocation because the applicants had lived in another area of Pakistan where they were relatively safe for a number of years.

SUBMISSIONS
9

9. It was indicated to the Court by Mr. Mark de Blacam, S.C. on behalf of all three applicants that this Court could...

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