M.A U-H v Minister for Justice and Others

JurisdictionIreland
CourtHigh Court
JudgeMS JUSTICE M. CLARK
Judgment Date28 June 2012
Neutral Citation[2012] IEHC 572
Date28 June 2012

[2012] IEHC 572

THE HIGH COURT

Record No. 923 J.R./2011
U-H (MA) [Pakistan] v Min for Justice & Ors
JUDICIAL REVIEW

Between:

M. A. U. H. (PAKISTAN)
APPLICANT
-AND-
THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND
RESPONDENTS

REFUGEE ACT 1996 S17(1)

GERMANY v Y; GERMANY v Z 2013 1 CMLR 5 2013 IMM AR 87

R (TARIQ (ORSE MEHMOOD)) v SECRETARY OF STATE FOR THE HOME DEPT UNREP 19.6.2009 2009 EWHC 1390 (ADMIN)

IMMIGRATION ACT 1999 S3

T (LA) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 2.11.2011 2011/47/13240 2011 IEHC 404

REFUGEE ACT 1996 S5

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

AFOLABI v MIN FOR JUSTICE & ORS UNREP COOKE 17.5.2012 2012 IEHC 192

L (F) v MIN FOR JUSTICE UNREP HOGAN 10.5.2012 2012 IEHC 189

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

SIVSIVADZE & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 26.4.2012 2012 IEHC 137

D (HI) & A (B) v REFUGEE APPLICATIONS CMSR & ORS UNREP CJEU 6.9.2012 (OPINION OF ADVOCATE GENERAL)

D (T) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 25.1.2011 2011/10/2394 2011 IEHC 37

M (P) v MIN FOR JUSTICE & ORS UNREP HOGAN 28.10.2011 2011/34/9389 2011 IEHC 409

M (P) [BOTSWANA] v MIN FOR JUSTICE & ORS (NO 2) UNREP HOGAN 31.1.2012 2012 IEHC 34

RSC O.84

INTERNATIONAL COVENANT ON CIVIL & POLITICAL RIGHTS ART 18(3)

CARLTONA LTD v CMRS OF WORKS & ORS 1943 2 AER 560

D (N) [NIGERIA] v MIN FOR JUSTICE UNREP COOKE 2.2.2012 2012 IEHC 44

L (MM) [ANGOLA] v MIN FOR JUSTICE UNREP CLARK 21.3.2012 (EX TEMPORE)

IMMIGRATION LAW

Deportation

Judicial review - Leave - Certiorari - Subsidiary protection - Leave to remain - Member of Ahmadi faith - Fear of persecution - Restriction on religious freedom - Irrationality -Irrationality of decision in light of country of origin information before respondent - Unlawful delegation of ministerial duty - Deportation order not signed by respondent - Respondent failed to personally make lawful determination on refoulement - Failure to provide effective remedy - Proportionality of theoretically indefinite deportation order - Whether conclusion on state protection rationally supported by country of origin information -Whether unlawful delegation of ministerial duty - Whether error in failing to personally make lawful determination on refoulement - Whether deportation order must be signed by respondent - Whether justifiable restriction on religious freedom - Whether respondent failed to provide effective remedy - Federal Republic of Germany v Y and Z (Opinion of Advocat General) (C-99/11 and C-71/11) [2013] 1 CMLR 5 followed - LAT v Minister for Justice and Equality [2011] IEHC 404, (Unrep, Hogan J, 2/11/2011); Afolabi v Minister for Justice and Equality [2012] IEHC 192, (Unrep, Cooke J, 17/5/2012); Sivsivadze v Minister for Justice and Equality [2012] IEHC 137, (Unrep, Hogan J, 26/4/2012); ND v Minister for Justice and Law Reform [2012] IEHC 44, (Unrep, Cooke J, 2/2/2012); PM v Minister for Justice and Equality [2011] IEHC 409, (Unrep, Hogan J, 28/10/2011); PM (Botswana) v Minister for Justice and Law Reform (No 2) [2012] IEHC 34, (Unrep, Hogan J, 31/1/2012) applied - Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 followed - Meadows v Minister for Justice and Law Reform [2010] IESC 3, [2010] 2 IR 701; FL v Minister for Justice and Equality [2012] IEHC 189, (Unrep, Hogan J, 10/5/2012); R (Tariq) v Secretary of State for the Home Department [2009] EWHC 1390 (Admin), (Unrep, English High Court, 19/6/2009) considered - MML v Minister for Justice and Equality (Unrep, ex tempore, Clark J, 21/3/2012) distinguished - Refugee Act 1996 (No 17) ss 5 and 17 - Immigration Act 1999 (No 22) s 3- Relief granted (2011/923JR - Clark J - 28/6/2012) [2012] IEHC 572

H(MAU) v Minister for Justice and Equality

Facts The applicant was a Pakistani national and a member of the Ahmadiyya religion. The applicant”s claim for asylum and for subsidiary protection had been rejected. Judicial review proceedings were instituted with the applicant contending that the conclusions reached by the State regarding the availability of state protection were irrational in the light of the country of origin information available. It was the applicant”s contention that country of origin information would indicate that in Pakistan state authorities were not sympathetic to Ahmadiyya followers, were enforcing blasphemy laws and did not come to the aid of Ahmadi victims of religiously motivated attacks. On behalf of the respondent it was contended that most Ahmadis lived without interference day to day and did not end up in jail for blasphemy. The Minister”s decision could not be described as irrational based on the information before him.

Held by Clark J in granting leave to seek judicial review: It would seem arguable that no reasonable person having sight of the relevant country of origin information could have reached the conclusion that state protection was available the applicant as an Ahmadi in Pakistan. While it could be argued that the country had a functioning police and judicial system, it was equally clear that the authorities were not sympathetic to and did not protect Ahmadis who faced criminal charges under blasphemy laws. The respondents” argument that international protection was not warranted because Ahmadis did not face difficulties if they practiced their faith in private was not compelling. The Pakistani blasphemy laws were not a justifiable restriction on religious freedom in accordance with United Nations International Covenant on Civil and Political Rights or under the Geneva Convention Relating to the Status of Refugees. Leave would be granted on the basis that the subsidiary protection and deportation decisions insofar as they were based on the country reports relied upon were irrational and unreasonable.

1

The applicant is a national of Pakistan and a member of the Ahmadiyya religion. His claim for asylum has been rejected and the Minister for Justice and Equality has refused his applications for subsidiary protection and for leave to remain and has made a deportation order against him. The applicant seeks leave to apply for orders of certiorari quashing (i) the Minister's decision under s. 17(1) of the Refugee Act 1996 to refuse him refugee status; (ii) the Minister's decision to refuse him subsidiary protection; and (iii) the Minister's decision to make a deportation order against him. He also seeks declaratory relief. The negative decisions of the Refugee Applications Commissioner and Refugee Appeals Tribunal were never challenged. The leave hearing took place on the 7 th June 2012 in Court 26. Mr Gary O'Halloran B.L. appeared for the applicant and Ms Ann Harnett-O'Connor B.L. appeared for the respondents. There is an injunction in place restraining the deportation of the applicant pending the determination of the proceedings.

Background
2

The applicant carries a passport which confirms his status as a member of the Ahmadi faith. It also contains a travel visa to India which predates his travel to Ireland on a valid student visa. The facts underlying his applications for protection are that before coming to Ireland he lived in the Punjab province of Pakistan with his family who are devoted followers of the Ahmadiyya religion. They have all suffered harassment and discrimination as a result of their religious beliefs. He himself encountered verbal and physical abuse when attending school and college and eventually was forced to leave and study at home. In his spare time he was active in mosque activities which included instructing the children in their community in the basics of their faith. As a result the local Sunni Mullah targeted him in his sermons saying he must convert.

3

The applicant recounted attacks from members of the Khatm-e-Nabuwwat. After one such attack he was refused medical treatment and when he complained of the attack to the police, they refused to register his complaints and instead showed him a copy of the blasphemy laws directed to the Ahmadis and other decreed non-Muslims. His father then made arrangements to get him a study visa for Ireland and he left Pakistan in March 2008. He studied at a business school in Dublin but returned home in September 2008 when his mother fell ill. During that visit he suffered further abuse and received threats and he says that in October 2008 he was beaten up by a group of Khatm-e-Nabuwwat students whose mosque had been build adjacent to the Ahmadiyya mosque which he attended. He moved to the city of Rabwah, the headquarters of the Ahmadiyya community, where he stayed for ten days before returning to Ireland to resume his studies. He decided to apply for asylum a number of weeks later. Country of origin information (COI) reports relating to Pakistan confirm that the Ahmadis in Pakistan are considered to be blasphemers because they consider that they are Muslims. They are regularly attacked by fundamentalist sections of the mainstream and majority Sunni Muslim faith in Pakistan.

4

The asylum authorities rejected his claim, finding it implausible that he should have returned to visit his mother if he feared the persecution alleged and placing weight on his failure to apply for asylum as soon as practicable after arriving in Ireland. Doubts were expressed about the extent of his involvement with the Ahmaddiya community in Pakistan and his knowledge of the differences between the two sects of Ahmadis. However, the fact of being an Ahmadi was not specifically rejected. Because of his delay in applying for asylum, his appeal was determined on a documents only basis.

The Submissions
5

The applicant seeks leave on grounds 1 and 11 (unlawful delegation of ministerial duty), 8 (failure to provide an effective remedy), 12 (unconstitutionality of indefinite deportation order) and 15 (irrationality)...

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