J. A. v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 19 May 2015
• Neutral Citation: [2015] IEHC 342
• Court: High Court
• Date: 19 May 2015

J. A. v Refugee Appeals Tribunal & Ors.

JUDICIAL REVIEW

BETWEEN

J. A.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

[2015] IEHC 342

[No.555 J.R/2011]

THE HIGH COURT

Asylum – Immigration & Nationality – Refugee Appeals Tribunal – Refusal of asylum claim – Fear of persecution – Credibility of evidence – Convention nexus – Whether land owners constituted social group

Facts: The applicant sought judicial review of the decision of the first named respondent refusing refugee status to the applicant. The applicant contended fear of persecution in the country of origin owing to a feud with his cousin over land dispute resulting into a shooting incident between the applicant and his cousin. The applicant objected to the credibility findings made by the first respondent based on trivial issues such as mode of travel of the applicant from the country of origin to Ireland and contended that by reason of being a land owner, he belonged to a particular social group and thus had a Convention nexus.

Ms. Justice Faherty refused to grant an order quashing the decision of the first named respondent; however, the Court granted an order for severance of credibility findings made by the first named respondent. The Court held that a link must be established between the claimed persecutory fear and the Convention ground and that anticipated treatment should emanate by reason of being a member of particular group, and race. The Court found that the applicant's fear of persecution arose not by virtue of being a landlord but by intent of his cousin to harm him over land feud, which had not reasons in Convention nexus. The Court held that the first respondent did not make a rational analysis of the documents that it had been presented with contradictory information and thereby made some wrong credibility findings that needed to be severed.

1 JUDGMENT of Ms. Justice Faherty delivered on the 19thday of May 2015

2 1. This is a telescoped hearing wherein the applicant seeks judicial review of the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner not to give him refugee status.

Background

3 2. The applicant is a native of Pakistan. The claimed basis for his application for asylum relates to a land dispute involving the applicant and his cousin. It is claimed by the applicant that after family land was divided between the applicant's father and uncle, the former obtained land with road frontage and the latter got land at the back. The applicant's father's portion was then divided among the applicant and his four brothers and the applicant inherited the portion that was nearest to the road. This was to the displeasure of the applicant's cousin who wanted that portion for business purposes. All the applicant's brothers sold land to this cousin. The cousin then requested that the applicant sell his portion to him so that he could build a plaza or petrol station on it but the applicant refused to sell as he wished to keep the lands in order to provide for his wife and children. According to the applicant his cousin threatened him with harm if he did not sell. On the occasion of that particular threat, the applicant's uncle and older brother were present and they managed to calm things down. At that stage the applicant did not regard the matter as important as he did not think the cousin was serious. However, the subsequent encounter between the applicant and his cousin was more serious. On that occasion, the cousin came armed with a gun and had people to support him. In the course of a struggle his cousin dropped the gun; the applicant took the weapon and discharged a shot hitting his cousin in the leg. According to the applicant, this occurred on the 25 ^th or 26 ^th of July 2010. The applicant then fled the area for fear of being arrested and went to a friend in Islamabad where he stayed for 1½ months. One day while the applicant was out, his cousin arrived at his friend's house looking for him. A scuffle ensued between his cousin and his friend. His friend telephoned the applicant and told him not to go back and advised him to leave the country. He introduced the applicant to an agent who, after a month, brought him to Ireland. The applicant claimed that he travelled to Ireland by road and sea and spent the entire journey in trucks or containers. After leaving Pakistan, he travelled through Iran, Turkey and unknown countries (being boarded on a ferry on two occasions).

Procedural history

4 3. The application for refugee status was commenced on the 22 ^nd November 2010. The applicant underwent a section 8 interview on that date and duly completed an ASY1 form. He completed a questionnaire on the 30 ^th November 2010 and he underwent a section 11 interview on the 17 ^th January 2011. In his questionnaire, he claimed refugee status on the basis of a stated fear of persecution on grounds of race, membership of a particular social group and "family enmity". The section 13 report issued on the 17 ^th February 2011 and recommended that the applicant not be declared a refugee. While acknowledging that the claim could satisfy the persecution element of the refugee definition, it stated, inter alia,

"It is considered that the applicant's fear of the authorities in Pakistan is a fear of prosecution, not persecution."

5 4. Furthermore, it was considered "that it would not be unduly harsh for the applicant to internally relocate within Pakistan to avoid the threat posed by his cousin".

6 5. Under the heading "Nexus to Section 2 grounds", the report stated:-

"The applicant's case is based on a stated fear of persecution in Pakistan for reasons of race, membership of particular social group and 'Family enmity' (interview, Q22)"

7 The applicant claims that he will be killed by his cousin who wants to take possession of his land. It is clear that this is a criminal issue regarding the illegal seizure of the applicant's land and is not connected to any of the section 2 grounds.

8 Therefore, based on the provisions of section 2 of the 1996 Act and Regulation 10 of the 2006 Regulations, the applicant has not demonstrated he has a fear of persecution on any of the section 2 grounds of race, religion, nationality, political opinion and membership of a particular social group".

9 6. A notice of appeal was filed with the Refugee Appeals Tribunal under cover of letter dated 7 ^th March 2011. At para. 3, the applicant based his well-founded fear of persecution on grounds of "membership of a particular social group and politicalopinion". The accompanying "Grounds of appeal and Submissions" stated, inter alia:-

10 2 "1: The decision of the Refugee Applications Commissioner is appealed on the grounds that the Refugee Applications Commissioner erred in fact and/or in law in deciding that the appellant does not meet the criteria as set out in the 1951 UN Convention relating to the status of Refugees as amended by the 1967 protocol and as defined in section 2 of the Refugee Act 1996 (as amended).

11 The RAC erred in fact and in law in failing to apply the criteria for determining the said application in the spirit of justice and understanding as recommended in the UNHCR Handbook at paragraph 202. It is submitted that the RAC similarly erred in fact and law in applying the wrong burden and standard of proof in determining the application of the applicant and that RAC did not fulfil its duty under the Refugee Act 1996 in properly investigating the persecution complained of by the applicant."

12 7. Further submissions were set out, namely that the RAC erred in law and/or in fact in assessing the applicant's general credibility and in giving inadequate reasons for doubting his credibility. It was further submitted that the RAC erred in fact and in law by not giving the applicant the benefit of the doubt pursuant to para. 196 of the UNCR Handbook.

13 8. The appeal before the Refugee Appeals Tribunal took place on the 28 ^th April 2011 and on the 31 ^st May 2011; the Tribunal issued its decision rejecting the appeal.

14 9. The Tribunal Member made a number of credibility findings adverse to the applicant. In summary, they were as follows:

15 With regard to the applicant's travel, the Tribunal Member found, inter alia:-

16 · That the applicant could not have travelled as he alleged.

17 · That the applicant had not provided a full and true explanation of how he travelled to and arrived in the State and the Tribunal Member "had regard to this, and to section 11(b)(c) of the 1996 Act, as amended, in assessing the applicant's general credibility".

18 · It was not "possible for the applicant to successfully negotiate security at all the international frontiers using false documents (at all times held by the agent) without detection at any of these posts".

19 · It was not credible "that [the applicant] would have surrendered his passport to the agent, as he [suggests]."

20 · It was not accepted that the applicant did not possess a passport by way of identification because he had given that document to the agent.

21 · It was not accepted that the applicant had provided a reasonable explanation failing to submit his original passport in support of his identity.

22 10. The Tribunal Member proceeded to make a number of credibility findings in respect of the account given by the applicant of his struggle with his cousin and events subsequent to that encounter. Specifically, the Tribunal Member found:

23 · That it was not credible that the applicant "could have disarmed and then shot at his cousin with the cousin's own gun - while the cousin's two associated apparently looked on.."

24 · That it was not credible that the applicant was able to then flee the scene and board a bus and travel to Islamabad.

25 · That...