M.Z.(Pakistan) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 15 February 2019
• Neutral Citation: [2019] IEHC 125
• Court: High Court
• Docket Number: [2018 No. 242 J.R.]
• Date: 15 February 2019

BETWEEN

M.Z. (PAKISTAN)

APPLICANT

AND

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

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2019] IEHC 125

Humphreys J.

[2018 No. 242 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Immigration and asylum – Subsidiary protection – Certiorari – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether the applicant was eligible for subsidiary protection

Facts: The applicant, in May, 2015, left the U.K. for Ireland and then made a claim for international protection on 14th May, 2015 to the Refugee Applications Commissioner. Asylum was refused by the Commissioner on 15th August, 2016. He appealed from the refusal of asylum on 3rd November, 2016. Following the commencement of the International Protection Act 2015 on 31st December, 2016, he applied for subsidiary protection and was interviewed under s. 35 of the 2015 Act. That application was refused on 12th September, 2017. He then appealed that refusal to the first respondent, the International Protection Appeals Tribunal, on 3rd October, 2017. The tribunal rejected the appeals on 20th February, 2018. Its decision, as far as it concerned the rejection of the asylum claim, was not challenged; only the aspect of the decision rejecting the subsidiary protection claim. The High Court (Humphreys J) granted leave on 23rd March, 2018, the primary relief being an order of certiorari quashing the decision of the tribunal to the effect that the applicant was not eligible for subsidiary protection. Ground 1 alleged that “the first named applicant erred having made positive credibility findings in the applicant’s favour and having found that he was subject to past persecution that he was not at risk of being subject to inhuman and degrading treatment or the risk of execution in the future”. Ground 2 alleged that “the first named respondent erred in law in failing to give proper probative weight to the medico-legal documents furnished by the applicant which raised a rebuttable presumption that the applicant had suffered harm in the past”. Ground 3 alleged that “the first named respondent erred and acted inconsistently in finding that the applicant would not be at risk on return as a civilian due to indiscriminate violence in a situation of internal armed conflict”.

Held by Humphreys J that the fact that country information indicated that individuals were sometimes targeted, even fatally in an individual instance of extortion, did not amount to evidence that the applicant was facing a realistic risk of execution or death, particularly in relation to a couple of relatively isolated incidents that occurred eight years before the tribunal decision. Humphreys J held that it was not the law that if a decision-maker accepted any element of the applicant’s story that he or she must make a finding that the applicant was entitled to protection. Humphreys J held that, leaving aside a medico-legal report that is diagnostic, a fact-finder is entitled to consider that such support, if any, is given by a report to an applicant’s account is outweighed by other evidence, having considered all relevant matters in a fair manner. Humphreys J held that, as illustrated by the judgment of Faherty J in F.S. v. Minister for Justice and Equality [2017] IEHC 621, sporadic incidents of persecution do not necessarily meet the test in Case C-465/07, Elgafaji v Staatssecretaris van Justitie (CJEU Grand Chamber, 17th February, 2009), at para. 45. The tribunal noted country information that extortion and targeted killings had “dropped markedly” and said that “the COI demonstrates that there is not such a high level of indiscriminate violence orchestrated by MQM in Karachi that the applicant merely by his presence there can be said to have shown substantial grounds” of real risk. It also noted updated COI in 2017 showing an improvement in the security situation. Thus Humphreys J held that there was no error or inconsistency in the decision as alleged.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of February, 2019

1 The applicant was born in Pakistan in 1969 and lived most of his life in Karachi with his wife and children. His father worked on a market stall and he worked as a fire-fighter and at a mill. He claimed that between 2004 and 2010 his wages were stolen. This aspect was accepted by the International Protection Appeals Tribunal (at para. 4.14 of its decision) to the limited extent that it is accepted that his wages were stolen at least once. However, the tribunal did not accept that this happened more than six times given the applicant's inconsistent evidence on this point (para. 4.15). The tribunal accepted that the applicant's father and other stall-holders in the market were subject to extortion by a group known as MQM on the basis that that was consistent with country information (para. 4.16). The tribunal also accepted the account of at least one fight involving the applicant at the market, and accepted that persons called to the family home after this incident at the market stall and threatened violence. Whether that was directed against the applicant alone or against the applicant's father as a stall-holder was neither accepted nor rejected (para. 4.16). The applicant gave evidence to the tribunal that he was injured in an acid attack while working on the market stall with his father. That was comprehensively rejected by the tribunal. He claimed that the stall was destroyed in January, 2010 and that the father no longer ran it. That aspect was accepted (para. 4.20).

2 The applicant left Pakistan in 2010 and came to the U.K. on a valid visa for a six-month period. In 2011, he bigamously ‘ married’ a Jamaican national in the U.K. He then applied for residency on the basis of this fraudulent marriage, which was refused, and the marriage was regarded as one of convenience. He remained in the U.K. for four and a half years and was unlawfully present for almost four of those years.

3 He says that in July, 2013 he went to a solicitor to get advice on asylum. He said that a secretary or office assistant advised him and that he left before speaking to the solicitor. This account was deemed incredible by the tribunal. He had also given odd answers in that regard, saying that there was not enough time, that he had to wait for hours and that lawyers were charging. Around the same time as this alleged visit he received correspondence from the Home Office to the effect that he was an over-stayer. The applicant said that he did not remember such correspondence and that he went of his own volition to get advice on asylum and not on foot of any correspondence. He gave inconsistent answers at different times about whether the secretary or office assistant was female or male. His account in that regard was not accepted by the tribunal members who did not believe the claim that the applicant did not receive the Home Office correspondence.

4 In May, 2015, he left the U.K. for Ireland and then made a claim for international protection for the first time on 14th May, 2015 to the Refugee Applications Commissioner here, not having previously applied for asylum in the U.K. He and the second purported ‘wife’ apparently divorced after three years. Asylum was refused by the Commissioner on 15th August, 2016. The applicant did not initially disclose the fraudulent marriage during the Commissioner's proceedings. He appealed from the refusal of asylum on 3rd November, 2016. Following the commencement of the International Protection Act 2015 on 31st December, 2016, he applied for subsidiary protection and was interviewed under s. 35 of the 2015 Act. That application was refused on 12th September, 2017. He then appealed that refusal to the International Protection Appeals Tribunal on 3rd October, 2017. An oral hearing took place on 28th November, 2017. Mr. Ciaran Doherty B.L. appeared for the applicant. The tribunal rejected the appeals on 20th February, 2018. Its decision, as far as it concerns the rejection of the asylum claim, is not challenged; only the aspect of the decision rejecting the subsidiary protection claim.

5 I granted leave on 23rd March, 2018, the primary relief being an order of certiorari quashing the decision of the tribunal to the effect that the applicant was not eligible for subsidiary protection. A statement of opposition was filed on 24th July, 2018. I have received helpful submissions from Mr. Eamonn Dornan B.L. for the applicant, and from Mr. Peter Leonard B.L. for the respondents.

Ground 1 - failure to find for the applicant given that the entire story was not rejected

6 Ground 1 alleges that ‘ the first named applicant erred having made positive credibility findings in the applicant's favour and having found that he was subject to past persecution that he was not at risk of being subject to inhuman and degrading treatment or the risk of execution in the future’.

7 The formulation of this ground is somewhat tendentious because the core of the applicant's story was rejected. The primary claim of persecution or serious harm, namely the alleged acid attack by members of the MQM, was not accepted as being credible by the tribunal.

8 There are three elements to subsidiary protection: (a) risk of death penalty or execution (b) risk of torture or inhuman or degrading treatment or punishment and (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence. Ground 1 only challenges the decision insofar as it relates to execution and inhuman or degrading treatment. The question of indiscriminate violence is raised separately in Ground 3.

9 As regards execution, the tribunal found perfectly lawfully that there was ‘ no evidence’ that the applicant would ‘ face serious harm in terms of …death...