K (S) and Others v Refugee Appeals Tribunal and Others
|Ms. Justice Faherty
|06 March 2015
| IEHC 176
|06 March 2015
 IEHC 176
THE HIGH COURT
Asylum – Immigration & Nationality – The Refugee Appeals Tribunal – Judicial Review – The Refugee Act, 1996 – Whether denial of oral hearing is in violation of constitutional and natural justice.
Facts: The applicants sought an order of certiorari quashing the decision of the first named respondent for its refusal to declare the applicants as refugees. The first named applicant contended that she was denied an opportunity of oral hearing in the case.
Ms. Justice Faherty granted an order of certiorari quashing the decision of the Refugees Appeals Tribunal and remanded back the case to a different member of the Tribunal. The Court held that Tribunal erred in following the principles of constitutional and natural justice by making credible findings without giving the opportunity of an oral hearing to the first named respondent with legal representation.
1. The applicants sought an extension of time in which to bring these proceedings and I am satisfied, from the contents of the first named applicant's affidavit, to grant the application.
2. This is a telescoped hearing of an application for leave to apply for judicial review together with substantive relief, in effect, an order of certiorari quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicants not be declared refugees and notified to the first named applicant by letter dated 24 th September, 2010.
3. The applicants are a Pakistani mother and child who arrived in the State on 9 th September, 2009, and applied for asylum on 19 th October, 2009. The first named applicant claims a fear of persecution in Pakistan as a result of the response to her decision to abandon her religion (Islam). The first named applicant claims that she began to question Islam whilst at university and this led to numerous rows with her parents. She claims that they forced her into an arranged marriage with a husband who harassed her, denied her food, placed restrictions on her and was physically abusive. She claims that after she became pregnant, numerous attempts were made to harm her in an attempt to cause her to miscarry, in circumstances where she had refused to abort her daughter. Her in laws as well as her husband were verbally and physically abusive. This situation continued after her daughter was bom. The first named applicant claimed that this led to her leaving home after an incident where her mother in law attempted to smother her. She sought assistance at the school where she worked and was given accommodation there for herself and her daughter. After her in laws informed the school authorities that she was not a follower of Islam, she lost her job. This was in May 2009.
4. Following that the first named applicant and her child went to Lahore after a fatwa had been issued against her. She remained in Lahore for four months and she claims that she was assisted by her brother and sister in law (resident in Ireland) in obtaining a visa to come to Ireland. The first named applicant claims that she believed that things would quieten down and had intended to return to Pakistan. However, after her arrival in Ireland, her brother went to Pakistan to ascertain the position and on his return advised her not to go back as her situation had not improved.
5. While in Pakistan and prior to relocating to Lahore, the first named applicant had gone to the police but they did not assist her, calling her " a bad woman". The first named applicant claims that if she and her daughter are to return to Pakistan, she fears that her husband or his family will kill them. Furthermore, as someone who has renounced her religion, the first named applicant claims she will suffer State persecution and that State protection will therefore not be available to her.
6. The first named applicant completed an ASY1 Form on 21 st October, 2009, and on 2 nd November, 2009, she completed the application for refugee status questionnaire.
7. She underwent a s. 11 interview on 12 th November, 2010 with the assistance of an interpreter.
8. The s. 13 report of the Refugee Applications Commissioner (dated 16 th December, 2009) issued on 14 th January, 2010.
9. In her report, the Commissioner noted the history of persecution as recounted by the first named applicant and quoted from country of origin reports which stated, inter alia, as follows:-
"Domestic violence was widespread and serious problem. Husband reportedly beat, and occasionally killed their wives. Other forms of domestic violence included torture and shaving. In laws abused and harassed married women…"
"Following an objective analysis of …country of origin information, it would appear that domestic violence remains a problem in Pakistan. Furthermore, a disbelief in Islam could make a woman's circumstances more difficult."
10. However, the Commissioner rejected the credibility of the first named applicant's claim on a number of grounds: She noted that the first named applicant's contention that her problems emanated from her disbelief in Islam and that she had not been a Muslim for several years. She noted however from country of origin information that Pakistan required religious affiliation to be listed on passports. The applicant had designated her religion as Muslim on her passport which issued on 28 th March, 2009. The Commissioner rejected the first named applicant's explanation that she herself had not filled in the passport noting that the first named applicant had several university degrees and it was thus difficult to accept that she would not complete her own forms to obtain a passport. It was also noted that the first named applicant wore a headscarf for the duration of the interview. While stating that it was not possible to say with any degree of certainty whether the first named applicant had denounced Islam, the aforementioned issues nevertheless undermined the validity of her assertions in that regard. The Commissioner also found it difficult to understand, given the family circumstances outlined by the first named applicant, how she could have had control not only of her own documents but those of her husband when applying for the passport for her daughter which issued in December 2008.
11. The Commissioner also found it unusual that while the first named applicant claimed she had lost both her and her daughter's passports since their arrival in Ireland, she was able to produce a photocopy of the visa page of her passport to the offices of the ORAC subsequent to her interview. The Commissioner found it unusual "that the applicant could produce this evidence if her passport is in fact missing".
12. The Commissioner also made the following findings:-
"It would appear the applicant arrived to this State in early September 2009. She was asked why she waited until 19 October to seek asylum. She stated 'I came here just for a change. I did want to go back. But then my brother contacted me and told me it was not safe. Everybody is still searching for me. Also I was worried that my visa would expire. I always wanted to go back, but then my brother told me it was not safe.'
During the course of the applicant's interview, she had stated she fled [ ] after a Fatwa was issued against her. She stated she feared she would be killed. She described how she had no contact with her parents after they refused to offer their support when her husband beat her for the first time… She described living a life of isolation in Lahore for four months.
Given the situation the applicant described, it is difficult to understand how she had an intention to return to Pakistan when she first arrived, and only decided to apply for asylum when her brother told her it was not safe there …A delay in seeking asylum may indicate a lack of subjective fear of persecution, the reasoning being that someone who was truly fearful would claim asylum at the first opportunity. The applicant's case is based on incidents that allegedly occurred prior to her departure from Pakistan, yet she waited nearly six weeks after her arrival before seeking asylum. The applicant's delay in seeking asylum raises concerns with regards to her stated subjective fear. She has not provided reasonable explanation for failing to seek asylum immediately after her arrival."
13. The cumulative effect of the Commissioner's findings led to "a significant credibility deficit". Thus, as the first named applicant's general credibility was not established, she had "failed to satisfy the well founded fear element of the convention".
14. Notwithstanding the above finding, the Commissioner considered the availability of national protection. It was noted, having regard to country of origin information, that State protection would be difficult for a woman allegedly abused by her husband. On the question of internal relocation, noting the first named applicant's level of education, the Commissioner found it both possible and reasonable that she and her daughter could internally relocate elsewhere in Pakistan, for example Lahore.
15. The s. 13 report went on to make the following finding under s. 13(6) of the 1996 Act:-
"The applicant's general credibility has not been established. Having regard to the above, I find that Section 13(6)(c) of the Refugee Act 1996 (as amended) applies to this application, in that 'the...
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