K. H. B. and Another [Pakistan] v Refugee Appeals Tribunal and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 14 May 2015 |
| Neutral Citation | [2015] IEHC 294 |
| Court | High Court |
| Date | 14 May 2015 |
[2015] IEHC 294
THE HIGHT COURT
AND
Asylum – Judicial review – Refugee Act 1996 (as amended) – Leave to seek an order of certiorari.
Facts: The applicant sought an order by way of judicial review for leave to seek an order of certiorari quashing the decision of the respondent refusing the refugee status of the applicant claiming fear of persecution for a Convention reason. The respondent contended that the applicants' case would be moot owing to the political situation in the country of origin. The applicant claimed well-founded fear of persecution on account of political views and support.
Mr. Justice Barr held that the application for leave to seek an order of certiorari quashing the decision of the respondent refusing the claim for asylum would be granted. The Court rejected the contention of the respondent that the applicants' case would be moot owing to the political situation in the country of origin.
1. This is an application for leave to seek an order of certiorari by way of judicial review to quash the decision of the Refuge Appeals Tribunal ("the RAT") dated 25 th February, 2010, to affirm the recommendations of the Office of the Refugee Applications Commissioner ("ORAC") that the applicants be refused refugee status.
2. The notice of motion challenging the joint decision of the RAT dated 25 th February, 2010, was issued on 18 th May, 2010. This was outside the statutory time limit laid down by s. 5(2)(a) of the Illegal Immigrants Trafficking Act 2000, which provided that an application for leave to apply for judicial would have to be made within the period of 14 days commencing on the date on which the person was notified of the decision, unless the High Court considered that there was good and sufficient reason for extending the period within which the application could be made. The respondents are not opposing the applicants' application for an extension of time.
3. In their statement of grounds, at para. 12, it is stated as follows on behalf of the applicants:-
"The applicants sought advice from the Refugee Legal Service in relation to the prospects of judicially reviewing the decision of the respondents upon receipt of the decision, and instructed that an application be made for a certificate to bring proceedings. Due to lack of resources and pressure of work, legal advice was delayed and on due consideration of the file, the applicants were advised that there were difficulties with the decision but to engage informally with the respondents before pursuing proceedings. The attempt at informal resolution proved unsuccessful and the Legal Aid Board authorised a certificate for counsel's opinion on the 20 th April, 2010. Thereafter, a decision to issue a certificate was made on the 13 th May, 2010, and proceedings were drafted forthwith. The applicants are not responsible for the delay in the institution of the within proceedings."
4. Having considered the explanation proffered by the applicants for the short delay in this case, I am satisfied that there is good and sufficient reason for extending the period of time in which to initiate proceedings up to and including 18 th May, 2010, which was the date on which the notice of motion issued herein.
5. The applicants in this case are a nephew and uncle from Pakistan. They claim to have a well-founded fear of persecution on account of their involvement with Muslim League N Group (hereinafter referred to as "the N party") in Pakistan. The first named applicant's father (brother to the second named applicant) is reported missing, and it is believed that this was due to his similar political activities.
6. The first named applicant is a single man and was born on 15 th December, 1983. He is a Pakistani national, and received twelve years' education, having attended school in Pakistan from 1988 to 2000. The applicant claimed asylum in Ireland on the basis that he had a well-founded fear of persecution on account of his political views and support for the N party in Pakistan. The applicant stated that he fears being killed if returned to Pakistan.
7. The RAT noted that he submitted a birth certificate and a medical report from the Services Institute of Medical Services, Lahore in support of his claim. A SPIRASI report was also submitted.
8. The first named applicant claimed that he and his uncle received threatening phone calls in which they were told to leave the N party and to join the Pakistan Muslim League Q ("the Q League"). The applicants refused to do so. As a result of this, they claim to have been kidnapped and taken to an unknown location, where they were detained for three days and tortured. Following this, the applicants were released and they claim to have spent seven days in hospital being treated for their injuries. The applicant explained that he and his uncle were kept in separate rooms in the dark. He said they were tied and held upside down and beaten. They claimed to have been told that this was happening to them as a result of their failure to leave the N party.
9. The first named applicant stated that his toenails on his left foot were pulled out and that he was beaten with a hot rod. The RAT decision notes that an issue arose as to whether it was the left or right foot; the questionnaire records that it was the right foot. The first named applicant stated that the people who had tortured them had inflicted these injuries. He said that he and his uncle were of the view that these people were either from the Secret Service or the Q League. He stated that when he and his uncle, the second named applicant, were in hospital, his father and another uncle went to the police and reported what had happened. The uncle made the report to the police rather than the first named applicant's father because, the applicant stated, his father was also a member of the N Party and feared that the same would happen to him. In this regard, reference was made to a letter from the first named applicant's uncle to the inspector general of police in Lahore.
10. The first named applicant also stated that he was given medicine and injections while in hospital, and that he was bandaged. He stated that he and his uncle returned to the N party, but not to the same extent as before.
11. The first named applicant claimed that his father was kidnapped in July 2007. He said that he and his uncle were fearful because of what they had been through and stated that they continued to receive threats. They were more fearful following the kidnapping of the first named applicant's father.
12. The first named applicant was asked to explain the circumstances of his father's kidnapping. He stated that his father went to the shop but did not return by evening. The family became suspicions and went to the police. He stated that his uncle reported the father as missing but that the police did not take much notice of this.
13. The applicant stated that on 28 th February, 2007, armed men came to his house at between half past one and two in the morning. He said they did not know who these men were, that it was dark, and that he did not see their faces. He said that there was a truck outside. These men knocked on the door of the applicants' house. The applicants were afraid; they looked from the roof and saw that the men had weapons, and since his father had been kidnapped, the first named applicant and his uncle decided to flee. They jumped over to the neighbouring house and exited through the neighbour's door. The applicant was asked why the men, who he and his uncle believed had come to kidnap them, would simply knock on the door. He said that they must not have wanted to wake the neighbours.
14. The first named applicant stated that he and his uncle went to the bus station in a rickshaw. From there they went to Faisalabad where they stayed for a month with his maternal uncle. However, his maternal uncle feared that he was jeopardising the safety of himself and his children by harbouring the applicants. He therefore arranged for the applicants to leave the country with the help of an agent. The agent, with whom the applicants met a couple of times, arranged their travel. On 28 th March 2007, the agent told the applicants to go to Lahore Airport early in the morning.
15. The agent provided them with fake passports, which were red in colour, and had photographs of the applicants in them. The first named applicant stated that he and his uncle travelled by Gulf Airlines from Lahore to Bahrain. They remained in Bahrain for a number of hours before travelling by air to Dublin, where they arrived on 30 th March, 2007.
16. The first named applicant stated that when they came to an immigration desk the agent would give them the passports to show. The agent told them to copy what he was doing.
17. The applicant was asked about the origin of the newspaper reports on file. He stated that his brother had sent them from Pakistan. The first named applicant said that he had no idea where his father was. The applicant was asked about what contact he had with his family in Lahore. He said that he speaks to his brother and sister and to his uncle's wife on the phone. He stated that they have a number of homes in Pakistan and that they moved around to different uncles' houses because they were afraid.
18. The applicant was asked why he did not stay in Pakistan and move around like other members of his family do. He said that his...
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