M.I.v Michelle O'Gorman and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 26 July 2013
• Neutral Citation: [2013] IEHC 368
• Date: 26 July 2013
• Court: High Court

[2013] IEHC 368

THE HIGH COURT

[No. 879 J.R./2009]

I (M) v Refugee Appeals Tribunal (O'Gorman)

JUDICIAL REVIEW

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AND THE REFUGEE ACT 1996, AS AMENDED, AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

BETWEEN

M.I.

APPLICANT

AND

MICHELLE O'GORMAN ACTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

FIRST NOTICE PARTY

AND

IRELAND AND THE ATTORNEY GENERAL

SECOND NOTICE PARTY

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S11

P (B) v MIN FOR JUSTICE 2003 4 IR 200

IMOH & ORS v REFUGEE APPEALS TRIBUNAL UNREP CLARKE 24.6.2005 2005/31/6393 2005 IEHC 220

JANUZI v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2006 2 AC 426

D (L) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MCGOVERN 7.7.2006 2006/14/2948 2006 IEHC 218

EEC DIR 2004/83 ART 8

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

A (C) v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP BIRMINGHAM (EX-TEMPORE) 27.7.2008 2008/1/1 2008 IEHC 261

B (G O) v MIN FOR JUSTICE UNREP BIRMINGHAM (EX-TEMPORE) 3.6.2008 2008/2/390 2008 IEHC 229

Asylum & Immigration law- Judicial Review- Relocation- Persecution- Inconsistency- Certiorari- Whether the applicant had demonstrated substantial grounds for leave

Facts: The applicant was a Pakistani national who claimed that his father had been murdered in a landowners” dispute. He sought certiorari of a decision affirming an adverse recommendation that he not be declared a refugee. The respondent had found that relocation was available to him. The respondent had also found that considering his age, education, the persecution he stated that he was fleeing from, it would be reasonable to expect that the applicant would have sought asylum earlier in the UK rather than in Ireland.

Held by McDermott J. that the Court was satisfied that the applicant had not demonstrated substantial grounds for leave. The decision of the respondent had been made within jurisdiction that relocation had been open to him. The decision of the respondent as to credibility had been supported by evidence of inconsistent accounts. The Court would not act as a Court of Appeal otherwise.

1 1. This is an application for leave to apply for judicial review by way of certiorari seeking to quash the decision of the respondent made on 2 ^nd June, 2009, which affirmed a recommendation of the Refugee Applications Commissioner pursuant to s. 13(1) of the Refugee Act 1996, that the applicant should not be declared a refugee. A number of other declaratory reliefs were also sought, but the only remedy of relevance is certiorari.

2 2. Twenty grounds for relief were set out in the statement of grounds. Grounds 1 to 6 were unstateable and not pursued, as were grounds 15 to 18 inclusive. Grounds 7, 8, 9, 10, 11. 12. 13, 14 and 19 concerned a challenge to the decision based on alleged deficiencies in findings relating to credibility and the issue of relocation. Ground 20 was a generalised ground of no relevance to the case.

Background

3 3. The applicant is a Pakistani national born on 23 ^rd March, 1978, in a village near the town of Sargodha in the Punjab where his family owned a 50 acre farm. He was educated to third level but left university after two years without completing his degree course to run the family farm following the death of his father. He lived with his mother. K.B., and his sisters Sh.N, S.N, and A.N. The court is now aware that the applicants mother and sisters arrived in Ireland and claimed asylum in 2007. Their applications for asylum failed and were not challenged by way of judicial review. They are subject to deportation orders which are under challenge injudicial review proceedings (2013 No.113 J.R.).

4 4. The applicant claimed that in or about 1996 his father attempted to purchase 25 acres bordering his land which also bordered the substantial holdings of a powerful neighbouring family. He claimed that his father paid a deposit for the land and other sums of money to the vendor but no documents were executed. In fact, the vendor sold the property to his more powerful neighbours without informing his father. His father discovered this when he sought completion of the sale. His family were then in dispute with the vendor about the sale and repayment of monies. The title to the land remains in the vendor's name. A number of meetings of the local elders were held in an attempt to resolve the matter. During that process on or about 6 ^th June, 1996, the applicant claims that his father was murdered at their home by an agent of the powerful rival landowner.

5 5. In the s. 11 interview the applicant described the killing. His father was sleeping in the smaller of two houses at the family compound with his uncle and his father's cousin. He stated:-

"I heard shots fired in the night time. We got up and I saw a person jumping the wall. I went into the house. My father was lying in pain. He was bleeding. He told me that one person was there and shot him. I went to the hospital. He was alive for five or six hours. My father died on the way to the District Hospital. I went to the police station to report it."

6 6. A police report (FIR) concerning his father's death was made by the applicant on 6 ^th June, 1996, at 3.15am in which the applicant states that he came out of the house having heard one shot and:-

"Saw a person jumping over the wall… who suddenly ran in the street and disappeared. We went to the courtyard…and saw that my father had a wound on the back of his left shoulder and on the front of his chest, a wound of the bullet coming out…A.M. said that an unknown person came in, jumping over…and ran away after firing at my father. After leaving my father H.N. in R.H.C…in an injured condition, I had to come here to register my report at the police station."

7 7. In the s. 11 interview the applicant stated that he heard shots and that his father died on the way to hospital, in contra distinction to the suggestion that he heard only one shot and went to the police station while his father was lying injured in the hospital.

8 8. Following his father's death the applicant claimed that he and his uncle engaged with the local elders in order to resolve the land dispute and also attempted to discover who killed his father. Matters were not resolved at the various meetings convened. He believed that the powerful neighbouring family was responsible for his father's death. Proceedings were initiated in the local civil court in Sargodha against the vendor. He claimed that when returning from a hearing in respect of that ease in 2002, he and his uncle were attacked at Sakasar village by four or five people. His uncle was shot and killed and he managed to escape through tall sugar cane. In his initial accounts he did not mention that he too had been shot but, much later, in oral evidence he informed the tribunal member that he had been shot in the leg indicating a scar said to have resulted from the wound.

9 9. Once again, the applicant filled out a police report (FIR) on 12 ^th August, 2002. In this account the two were said to be travelling to court, not returning from court, and the applicant stated that "the accused also fired at me but luckily I was safe". He stated in his s. 11 interview that he knew two of his assailants identified as cousins of the powerful family and that the police discovered that three others were also behind the attack. He accepted that the police investigated the case. He believed the powerful neighbouring family was also responsible for his uncle's death.

10 10. He also complained that this powerful family made constant complaints to the local police that he had been involved in numerous criminal offences in respect of which he was investigated on a number of occasions. He was arrested regularly and imprisoned for periods of up to one month during which he was allegedly tortured. He was never charged with any offence and there are no documents or medical reports to support these contentions. The applicant acknowledged that the civil case against the vendor remains open. The vendor was summoned to court and gave evidence that he received money from the applicant's father as a loan and not for the land. He claimed that the powerful neighbour paid him money for the land and he said that the vendor still holds title to the property.

11 11. The applicant left the farm for Lahore in 2004, where he remained for approximately two years. He and his family lived on savings. In December, 2006 he claimed that he was fired upon in the vegetable market in Lahore and again went to the police where he made out another complaint (FIR). After this incident his mother had a heart attack and the family then went to live in Rawalpindi. In the meantime he leased the lands.

12 12. While in Rawalpindi he claimed that two men came to his house, stated that they were Secret Police and that they wanted to investigate him. They said he was wanted by a Police Inspector and he went with them. When he got into the car he was blindfolded and taken into custody for a year. He was held in what he described as a private house in a "torture cell", not in a regular police station. He claimed that he was there from January, 2007 to January, 2008 and was ill-treated. His mother wrote a letter to the Chief Justice of Pakistan in Islamabad complaining about this abduction and claiming that it had been effected by the powerful neighbouring landowners through their own agents or through the agency of the Pakistani Secret Police. In this letter the abduction was alleged to have taken place on 12 ^th January, 2007. In his s.11 interview the applicant claimed that the High Court of Pakistan had appointed some "prosecutors" to the case who came to the...