M.S.R (Pakistan) v The International Protection Appeals Tribunal ; M.S. v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 26 November 2018
• Neutral Citation: [2018] IEHC 692
• Date: 26 November 2018
• Court: High Court
• Docket Number: [2018 No. 386 J.R.] [2018 No. 437 J.R.]

BETWEEN

M.S.R. (PAKISTAN)

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

M.S.

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2018] IEHC 692

[2018 No. 386 J.R.]

[2018 No. 437 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Immigration and asylum – Credibility – First information report – Applicants seeking asylum – Whether the respondent erred in rejecting the first information report

Facts: The applicants are a husband and wife from Pakistan. The husband claimed persecution in Pakistan dating back to 2000, arising from an alleged land dispute. The husband moved to the U.K. on a student visa on 25th December, 2007. He returned to Pakistan in 2009 and claimed he married the wife in secret, although the wife had been promised as a fiancé to her cousin. The applicants claimed a second wave of persecution as a result of the alleged marriage. The husband returned to the U.K. to arrange for the wife’s, visa which was obtained in February, 2011. On 10th March, 2011 the wife travelled to the U.K. She claimed she was shot at on the way to the airport. She claimed she did not know who had fired on her. The husband claimed persecution in the form of receiving threatening telephone calls. It was claimed that the wife’s father filed a first information report (FIR) claiming that the wife had been abducted and it was further claimed that the husband’s father was detained as a result. The husband’s permission to remain in the U.K. expired in March, 2012 but he remained illegally in that country until May, 2015. At that point the applicants travelled to Ireland and first conceived of the notion of applying for asylum one month later. On 13th October, 2017 their protection claims were rejected by the IPO. Those decisions were appealed to the first respondent, the IPAT, on 8th November, 2017 and the appeals were dismissed in decisions of 23rd April, 2018. The tribunal member did not accept the FIR as genuine and also rejected purported newspaper articles having regard to their provenance, considering it implausible that pristine copies would have been retained for four years by a friend. A medical report regarding a scar on the husband’s leg was not of value because it was not necessarily caused by the attack claimed. The applicant’s accounts were rejected as incoherent and implausible, and adverse inferences were drawn from their failure to apply for asylum in the U.K., reinforced by the fact that the applicants had had the benefit of the legal advice. The High Court (Humphreys J) granted leave on 11th June, 2018, the primary relief being certiorari of the IPAT decisions. The husband’s grounds were the following: (1)(i) the rejection of the FIR; (1)(ii) the error in rejecting newspapers; (1)(iii) the alleged unfair rejection of a medical report; (2)(i) the alleged failure to address the core claim; (2)(ii) unfairness and speculation; (2)(iii) the failure to apply for asylum in the U.K.; (2)(iv) dismissing the applicants’ explanations; (3) the error in the assessment of country information. The wife’s grounds were the following: (1) an unduly harsh reading; (2) the failure to give weight to the applicants’ evidence; (3) the rejection of the medical report; (4)(i) the failure to address the core claim; (4)(ii) unfairness or conjecture; (4)(iii) the failure to apply for asylum; (5) the failure to have regard to up to date country information.

Held by Humphreys J that the fact that the applicants lived in the U.K. for years without claiming asylum, and only came to Ireland and asserted persecution after the visas ran out, spoke volumes, not to mention the fact that the husband lived in Pakistan for many years after the original alleged persecution. Humphreys J held that the IPAT was perfectly entitled to draw adverse inferences from such a situation and that the legalistic dust-cloud thrown up on their behalf did not change that fact. Humphreys J noted that the tribunal member who saw and heard the applicants and was in the best position to assess the credibility of their account rejected that account. Humphreys J held that no basis to disturb such a finding had been made out.

Humphreys J held that the applications would be dismissed.

Applications dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 26th day of November, 2018

1 The applicants are a husband and wife from Pakistan. The husband claimed persecution in Pakistan dating back to 2000, arising from an alleged land dispute. When I asked Mr. Eamonn Dornan B.L. for the husband about this he claimed that the applicant was not relying on it but rather on later events, although when I pointed out that this original alleged attack seemed to be central to a number of grounds he then changed position and said he was relying on it. However, the husband nonetheless remained in Pakistan for a further seven years after this alleged persecution. The father in law, described by the tribunal member as the husband's ‘ bête noire’, is supposed to have ‘ a great and sinister influence over the locality and even its police’ according to the tribunal member, but at the same time has been unable to win the 20 year old court case arising out of this land dispute.

2 The husband moved to the U.K. on a student visa on 25th December, 2007. He returned to Pakistan in 2009 and claimed he married the wife in secret, although the wife had been promised as a fiancé to her cousin. It was, the tribunal member said, ‘ just good fortune that caused her said cousin to be delayed in returning from his work in Dubai to claim her as his bride … that seems entirely too unwieldy and unlikely ever to have been conceived or followed through’. The applicants claim a second wave of persecution as a result of the alleged marriage.

3 The husband returned to the U.K. to arrange for the wife's, visa which was obtained in February, 2011. On 10th March, 2011 the wife travelled to the U.K. She claimed she was shot at on the way to the airport in an implausible tale described by the tribunal member as ‘ a dramatic account she was somehow spotted and tracked down by her antagonists within one day of her fleeing her home town.’ She claimed she did not know who had fired on her. The husband claimed persecution in the form of receiving threatening telephone calls. It is claimed that the wife's father filed a first information report (FIR) claiming that the wife had been abducted and it is further claimed that the husband's father was detained as a result. The husband's permission to remain in the U.K. expired in March, 2012 but he remained illegally in that country until May, 2015. At that point the applicants travelled to Ireland and first conceived of the notion of applying for asylum one month later.

4 On 13th October, 2017 their protection claims were rejected by the IPO. Those decisions were appealed to the IPAT on 8th November, 2017 and the appeals were dismissed in decisions of 23rd April, 2018. The tribunal member did not accept the FIR as genuine and also rejected purported newspaper articles having regard to their provenance, considering it implausible that pristine copies would have been retained for four years by a friend. A medical report regarding a scar on the husband's leg was not of value because it was not necessarily caused by the attack claimed. The applicant's accounts were rejected as incoherent and implausible, and adverse inferences were drawn from their failure to apply for asylum in the U.K., reinforced by the fact that the applicants had had the benefit of the legal advice.

5 I granted leave on 11th June, 2018, the primary relief being certiorari of the IPAT decisions. Statements of opposition were delivered on 15th November, 2018. I have received helpful submissions from Mr. Dornan for the husband, Mr. Paul O'Shea B.L. for the wife and Ms. Eva Humphreys B.L. for the respondents.

Husband's case

Ground 1(1): rejection of the FIR

6 Overall the submission made under this heading misunderstands what was before the tribunal. The tribunal had two documents:

(a) a photocopy of what purported to be an FIR with a stamp on it. The stamp did not purport to certify the copy as correct. The applicants have not actually averred that the stamp was placed on the photocopy as opposed to on the document copied, so their point under this heading fails in limine. While they cannot make the point, even if they could the stamp does not purport to certify the accuracy of the document.

(b) The tribunal also has a certified translation of the photocopy, stamped by the translator. The tribunal was not rejecting the correctness of the translation but rather the reliability of the photocopy document being translated.

7 It is submitted that the tribunal erred in rejecting the FIR on the basis that it was a photocopy and had no authenticable identifying mark, as found by the tribunal at para. 4.6 of the husband's decision. There has been a lot of confusion about this document, for which the applicants are entirely responsible by making inaccurate statements to both the IPAT and indeed the court. The s. 39 report says that the applicant ‘ submitted a copy of an FIR … this document is a photocopy and bears no authenticable identifying mark’. The husband's notice of appeal to the IPAT states that ‘ an original FIR was submitted’. This was an inaccurate statement. Indeed, it was jettisoned by the applicant's lawyers when the matter came before the court. The husband's solicitor's affidavit at para. 7 says ‘ the FIR with translation which was furnished is a certified copy bearing a stamp from the police. Needless to say, the original version will be retained by the police’. While that statement repudiates the previous inaccuracy in the applicants” position...