E. I. and Another v Minister for Justice, Equality and Law Reform and Another

JurisdictionIreland
JudgeMr. Justice Colm Mac Eochaidh
Judgment Date30 January 2014
Neutral Citation[2014] IEHC 27
CourtHigh Court
Date30 January 2014

[2014] IEHC 27

THE HIGH COURT

[No. 187 J.R./2010]
I (E) & I (A) (minors) v Min for Justice & Refugee Appeals Tribunal (O'Gorman)
No Redaction Needed
JUDICIAL REVIEW
E. I. AND A. I. (MINORS SUING BY THEIR NEXT FRIEND I. G. M.)
APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND MICHELLE O'GORMAN ACTING AS THE REFUGEE APPEALS TRIBUNAL
RESPONDENTS

D (K) [NIGERIA] v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP CLARK 1.11.2013 2013 IEHC 481

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7

Asylum & Immigration law - Judicial review - Credibility - Findings - Relocation - Pakistan - Risk - Corroborating evidence

Facts: The applicants were the children of Pakistani parents who claimed asylum in Ireland. The claimants argued that internal relocation was inappropriate as honor killing was practiced throughout Pakistan. The Tribunal had made two adverse credibility findings, asserting that there was an absence of corroborating evidence. The Court considered whether there was a risk of persecution or serious harm in the proposed area of relocation and whether it was reasonable to expect the applicant to stay in the place.

Held by MacEochaidh J. that the Court would not consider the complaints made in respect of the credibility findings and would grant the orders of certiorari sought. A greater enquiry was required as to whether the applicants and their parents were subject to such restrictions. The absence of corroborating evidence was not a sufficient reason to discount the possibility that the people listed were her family.

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JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 30th day of January 2014

2

1. The minor applicants are the children of Pakistani parents born in Ireland in 2006 and 2008. The parents claimed asylum in 2005. These applications were not determined for reasons which are irrelevant to these proceedings. The Pakistani parents of the minor applicants gave evidence at the oral hearing which described their persecution fears. The claim for asylum advanced on behalf of the minor applicants is based on the circumstances of their parents.

3

2. The parents come from different social strata within Pakistani society. It is said that the mother is from a superior caste to the father. Her family disapproved of the relationship accordingly. The father was approached by the police, it is said, who warned him that there would be consequences if he continued the relationship. In 2003, he moved to a city 500km or 600km away but continued a clandestine relationship with the mother. In 2005, the mother's family arranged for her marriage to another man. In view of this development the mother and father married and immediately left for Ireland in fear of their lives. Country of origin information confirmed that honour killings of women take place in Pakistan.

4

3. The Tribunal made two adverse credibility findings in respect of the father's narrative, primarily based upon his failure to mention certain matters at first instance. The credibility findings are in somewhat equivocal terms. The language used is as follows:

"The applicant's failure to mention this event prior to the appeal hearing, which is central to the applicant's parents' account, calls into question the credibility of the stated claim and undermines the well foundedness of the applicant's stated fear [emphasis added]."

5

To the second matter, the Tribunal Member said:

"The applicant's father stated at the appeal hearing that his brother was tortured on 28 th June 2005 as he had assisted the applicant's parents. No mention of this torture was made prior to the appeal hearing. The applicant's father's inconsistent testimony in relation to a central part of the stated account further calls into question the stated account and the well foundedness of the applicant's fears." [Emphasis added]

6

I should also add that the Tribunal Member indicated that the lack of knowledge of the parents as to the countries they traversed en route to Ireland "calls into question their general credibility". [emphasis added]

7

4. The Tribunal Member proceeded to make a reasonably elaborate internal relocation finding following what I have referred to as somewhat equivocal credibility findings. Rather than describe what was said by the Tribunal Member, I quote from her remarks in the relevant part:

"Notwithstanding the credibility issues that arise and if the applicant's parents testimony was accepted, it appears that internal relocation to escape the applicant's mother's relatives would be a viable alternative for the applicant."

8

5. The Tribunal Member then sets out a description of the provisions of the 'UNHCR Position Paper on Internal Relocation' and certain Canadian case law on this question. The Tribunal Member then continued:

"Pakistan's population is stated to be in and about 180 million. The applicant's mother indicates that her family is influential and she has provided lists of names of people to whom she states she is related. Apart from the applicant's parents' assertions, there is nothing to indicate that the people listed in the documents submitted at the hearing and post-hearing are relatives of the applicant's mother and that they are actively seeking the applicant's parents. The applicant's parents have no contact with their families in Pakistan and therefore the applicant's grandparents and family would be unaware of the applicant's birth. Were the applicant and her parents to return to Pakistan and live in an area where there are no family members, considering the size and population of Pakistan and the time that has elapsed since the applicant's parents came to Ireland, it is not plausible that they would located. Considering the size and population of Pakistan, the time that has elapsed since the applicant's parents came to Ireland, the applicant's parents' education, internal relocation to an urban area within Pakistan would be a viable alternative for the applicant with her parents [sic]."

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6. The main issue for decision in these proceedings is whether the passage just quoted constitutes a lawful determination that internal relocation is a solution to the fear of persecution, if believed. The possibility of internal relocation was canvassed with the applicant's parents at the oral hearing. The Tribunal Member notes that "the applicant's father said that he would be found in any province in Pakistan and as he was a chef, staff would find out about his circumstances". In addition, the Tribunal reports that:

"When asked if they could move to another area of Pakistan to escape, the applicant's father said they could not. He said that his wife had studied home economics and that she had a Master's in Interior Design and that she also had a qualification in child development and food nutrition. It was put to the applicant's father that country of origin information would suggest that the family could relocate and the applicant's father disagreed."

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7. With respect to the mother's testimony, the Tribunal Member reports that:

"The applicant's mother said that her family would not allow her to marry her husband as he was from a lower caste. She said that she was told that if she married her husband that her family would harm him, that she would be disowned and if they saw her they would kill her."

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In reply to the Presenting Officer, the applicant's mother said she could not move elsewhere as she had relatives in different cities and she would be located. She said that if they were located that she or her husband could be killed and her children would not be adopted."

12

In legal submissions, the representatives of the claimants said that:

"....internal relocation was inappropriate as honour killing was practiced throughout Pakistan".

The Law
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8. In a recent judgment, Clark J. reviewed various decisions dealing with the principles governing the Tribunal's decision making on internal relocation. She identified the following principles:

"The following principles can be said to apply to an assessment of the internal relocation alternative:"

(i) An inquiry into the availability of internal relocation is only appropriate where a protection decision maker a...

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