M.H. v International Protection Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 28 June 2023
• Neutral Citation: [2023] IEHC 372
• Court: High Court
• Docket Number: [Record No. 2022/669 JR]

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (As Amended), And in the Matter of the International Protection Act 2015

Between:

M.H.

Applicant

and

The International Protection Appeals Tribunal

The Minister for Justice and Equality

Respondents

[2023] IEHC 372

[Record No. 2022/669 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 28 ^th day of June, 2023

INTRODUCTION

1 . This is an application for an order of certiorari of a decision of the International Protection Appeal Tribunal (hereinafter “the Tribunal”) affirming the first instance decision that the Applicant be refused refugee status and subsidiary protection status. The proceedings raise separate issues in relation to, firstly, the proper application of Article 15(c) of the Qualification Directive (2004/83/EC) [hereinafter “the Qualification Directive”] and s. 2 of the International Protection Act, 2015 [hereinafter “the 2015 Act”] and, secondly, the proper treatment of documents submitted in support of a claim as part of an assessment of general credibility.

BACKGROUND

2 . The Applicant is a Pakistani national who identifies as Kashmiri from the Pakistani occupied Azad Kashmir region. Azad Kashmir is located in the western part of the geographical Kashmir region. It is separated from the Jammu & Kashmir political region, which is occupied by India, by a border known as the Line of Control. The Applicant claims that he lived near the Line of Control, as did his forefathers.

3 . The Applicant was born on the 6 ^th of June, 1986. He married in 2005 however, his wife died in 2014. He is the father of 4 children, aged from 8 to 16 years. They remain in Azad Kashmir and the Applicant finds it difficult to obtain information as to their wellbeing. The Applicant is of Gojar ethnicity, the majority ethnic group of Azad Kashmir, and is a Muslim. The Applicant claims to be a member of a long-standing nationalist family advocating for a free and independent Kashmir. He claims that his grandfather was killed by Indian forces in 1993 and that his father was killed by Pakistani forces in 2003. He claims his family were activists with the political group Jammu Kashmir Liberation Front (hereinafter “JKLF”). The Applicant says he formally joined JKLF in 2007.

4 . Faced with ongoing threats from government forces, the Applicant procured a student visa to the UK and lived there from February, 2012 until 2015. He returned home on 3 occasions during this period for significant family events. The Applicant's student visa for the UK expired on the 9 ^th of May, 2015. On the following day, 10 ^th of May, 2015, he was detected seeking to board a ferry for Belfast. He was detained as an overstayer and imprisoned. He then claimed asylum in the UK on a false basis and this was refused. He was released from detention on the 12 ^th of July, 2015.

5 . The Applicant arrived in Ireland on the 16 ^th of July, 2015 and applied for refugee status on the 17 ^th of July, 2015. His application was refused by ORAC (Office of the Refugee Applications Commissioner) and he appealed to the Refugee Appeals Tribunal by Notice of Appeal dated the 23 ^rd of November, 2016. It bears note that in the report prepared pursuant to s. 13 of the Refugee Act, 1996 (as amended) the documents submitted (which at that stage included a reference letter purporting to be from the JKLF, registration papers with the JKLF Kotli and a JKLF membership card) were assessed and the authenticity of the documents were called into question based on their contents and appearance and in view of the Applicant's lack of knowledge of the history of the JKLF.

6 . Following the commencement of the 2015 Act, the Applicant completed a fresh questionnaire, whereby he also sought subsidiary protection and permission to remain, on the 13 ^th of July, 2018. On this occasion, it is clear from the s. 39 report that the documentation originally relied upon had been supplemented by a Court document, a death certificate and a newspaper article but again issue was taken with the authenticity of the documentation in view of the contents of the documents and their appearance. The IPO (International Protection Office) report of the 8 ^th of May, 2019 recommended refusal of the subsidiary protection application. This was notified to the Applicant by letter dated the 18 ^th of June, 2019.

7 . The Applicant appealed this decision to the Tribunal by letter dated the 3 ^rd of July, 2019. By letter dated the 29 ^th of August, 2019, the Applicant's solicitor submitted Grounds of Appeal which the Applicant himself had composed, together with supportive country reports and documentation including, most notably, a letter dated the 16th of July, 2019 from JKLF. Further submissions and country reports were submitted to the Tribunal by the Applicant's solicitor by letter dated the 2 ^nd of September, 2019. The oral hearing before the Tribunal took place on the 17 ^th of September, 2019. Following the hearing, by letter dated the 21 ^st of November, 2019, his solicitor submitted further country of origin information relating to the ongoing deterioration of conditions in Kashmir.

8 . In a decision dated the 27 ^th of January, 2020, the Tribunal rejected the appeals. That decision was challenged in judicial review proceedings bearing the Record Number [2020/185 JR]. These proceedings were compromised and the appeals were remitted for fresh determination by a different Tribunal member. Further documents were submitted to the Tribunal by letters dated the 10 ^th of January, 2022. The oral hearing on remittal was held before the Tribunal on the 12 ^th of January, 2022.

9 . On the 17 ^th of January, 2022, a redacted Tribunal decision wherein subsidiary status was granted to a person in light of the level of violence occurring in the Line of Control area of Kashmir was also submitted to the Tribunal. The redacted decision quoted extensively from recent country reports including: an EASO report entitled “ Situation in Pakistan-administered Kashmir” dated the 6 ^th of October, 2020; an Internal Displacement Monitoring Centre (IDMC) report entitled “ Pakistan: Displacement associated with conflict and violence 2020”; a Freedom House report entitled “ Freedom in the World 2020 – Pakistani Kashmir” dated the 4 ^th of March, 2020 and an EASO report entitled “Pakistan: Security Situation” dated 2020.

10 . In a decision dated the 24 ^th of May, 2022, the Tribunal rejected the appeals. This decision was notified to the Applicant by letter dated the 26 ^th of May, 2022, and received by the Applicant on or about Monday, the 30 ^th of May, 2022. This is the decision impugned in the within proceedings.

ISSUES

11 . The following issues arise on the Applicant's case as pleaded and argued before me:

• 1. Did the Tribunal fail to apply Article 15(c) of the Qualification Directive and s. 2 of the 2015 Act in refusing to recommend international protection?

• 2. Was there a structural failure in the treatment of documents by the Tribunal in making findings on credibility first and rejecting the documents on the basis of general credibility findings and without assessing the documents themselves?

IMPUGNED DECISION

12 . The impugned decision is detailed and runs to some fifty-one pages. While I refer hereinafter more specifically to the treatment of documents and the treatment of Article 15(c) considerations being the issues raised in the proceedings, fairness requires that I record that the report is replete with careful consideration of the Applicant's oral evidence. This evidence was found to be inconsistent in both material (e.g. the number of attempted arrests he had endured and where he actually lived in Kashmir) and minor respects (e.g. dates, the number of people arrested at the same time, work history). Credibility findings linked to inconsistencies in the Applicant's oral evidence have not been challenged. Similarly, reliance on the Applicant's admission that he was untruthful in respect of his claim insofar as he claimed to have returned four times to Pakistan (when he later accepted that he in fact returned three times) and that he had been untruthful to gain immigration advantage to support an adverse credibility finding are not challenged. In fact, adverse credibility findings were justified by reference to nine separate factors of the Applicant's claim, none of which have been challenged.

13 . At paragraph 2.2 of the Decision, the Tribunal sets out a detailed list of documents relied upon in support of the claim. At paragraph 2.6, the Tribunal states that all documentation on the Tribunal member's file has been considered before proceeding to give an outline of the Applicant's evidence during oral hearing. A summary of the Applicant's evidence is recorded and it is noted that the Applicant is seeking protection because of what happened to his father and what happened after he joined the JKLF.

14 . The Applicant told the Tribunal that he lived in Datote, near the Line of Control, 12 to 15 km on one side and 8 to 9 kms on the other side. A death certificate submitted in respect of his father's death was referred to and at paragraph 2.9 the Tribunal records:

“The reason the death certificate said 2015 rather than 2003 was because it was a mistake. The Appellant had a new letter issued from the local union council office, with an attestation.”

15 . At paragraph 2.17 the Tribunal further refers to the documentation submitted from the JKLF as follows:

“In respect of the documentation submitted, the Applicant received that from the JKLF after contacting them. The Appellant joined in 2007; the reason the card said 2012 was because he had to ask the office to issue him a card and the issue with the date was cleared in the letter from them.”

16 . At paragraph 2.19 the Tribunal makes further reference to documents submitted stating:

“If he...