N (A) (an Infant) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 16 October 2015
• Neutral Citation: [2015] IEHC 699
• Court: High Court
• Date: 16 October 2015

[2015] IEHC 699

THE HIGH COURT

[No. 1076 J.R./2011]

N (A) (an infant) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

BETWEEN

A. N. (AN INFANT SUING BY HER FATHER AND NEXT FRIEND A. N.)

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE AND EQUALITY,

ATTORNEY GENERAL AND IRELAND

RESPONDENTS

Asylum, Immigration & Nationality – The Refugee Act 1996 – Fear of persecution – Certiorari – Council Directive 2005/85/EC – European Communities (Eligibility for Protection) Regulations – Fair procedures – Availability of state protection

Facts: The minor applicant sought an order of certiorari for quashing the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner that the applicant not be declared a refugee. The mother of the applicant contended that there existed well-founded fear of persecution of the applicant in the country of origin owing to membership of a particular social group. The applicant further contended that the decision of the first named respondent was influenced by the conclusions reached in the failed asylum applications of the applicant's parents in contravention of the Council Directive 2005/85/EC.

Ms. Justice Faherty granted an order of certiorari to the applicant and remitted the matter to the first named respondent for a de novo hearing before another member. The Court observed that the first named respondent did not give clear and cogent reasons for its finding that a convention nexus had not been established. The Court opined that the failure to seek state protection could not itself defeat an asylum claim and the first named respondent was entitled to consider the personal circumstances of the mother of the applicant which made her not to register a complaint before the relevant authority. The Court found that any finding as to internal relocation with respect to the minor should be made after taking into account the assessment of internal relocation of both, the mother as well as the father of the minor applicant.

1 JUDGMENT of Ms. Justice Faherty delivered on the 16th day of October 2015

Extension of Time

2 1. A short extension of time was required for the purposes of the present proceedings. The court was satisfied to grant the extension of time.

Background

3 2. The Applicant is a female minor who was born in Ireland on 28 ^th March, 2011 to Pakistani parents. An asylum application was submitted on her behalf on 27th April, 2011 by her mother who claimed that "she fears members of her family will kill her daughter if she goes to Pakistan". A questionnaire was duly completed on 9 ^th May, 2011 which made reference, inter alia, to the applicant's fear of persecution on grounds of race to the applicant being in fear for her life; that she "may be murdered"; and that the applicant had "all the threats and difficulties [her] parents have".

4 3. The section 11 interview was conducted with the applicant's mother on 31 ^st May, 2011 following which the s. 13 report issued on 2 August 2011. The RAC recommended that the applicant not be declared a refugee. The report stated, inter alia,

"the applicant's case is based on a stated fear of persecution in Pakistan from members of her extended family. The applicant's mother claims that her mother and her mother's two brothers were opposed to her marriage to [the applicant's father]. She claims that her mother and her mother's two brothers will harm the applicant as they do not like her husband."

5 Under the "well-founded fear" heading, the report stated:-

"It is noted that both of the applicant's parents' claims for asylum have been refused by the ORAC and at appeal, therefore a similar finding is appropriate in this case. A file copy of the Section 13 reports of the aforementioned applicants are attached for reference at Appendix A& B. As no separate claim has been advanced by this applicant's mother, no separate issue had to be considered in relation to this applicant."

6 4. Under the heading "State Protection & Internal Relocation", the Commissioner noted the contention that the "… police would be unwilling to help the applicant as her relatives have connections to powerful and influential people in the police and the provincial assembly. However, she was unable to state who these people were." In answer to the argument that no governmental or non-governmental organisations would be able to help the applicant, he stated: "There appears to be no reason to suggest that these organisations would be unwilling or unable to help the applicant should she require it." The Commissioner also found against the applicant's mother's claim that any suggestion of relocation within Pakistan would not be a solution to the perceived threats from her extended family. The report stated "It appears unlikely that the people she fears are even aware of the applicant'sexistence… Given this, along with the sheer size and population of Pakistan, and the localised nature of the applicant's mother's fears, it is considered that the applicant would be able to live in Pakistan with her parents, away from her mother's relatives."

7 5. In the Notice of Appeal (filed on 22 ^nd August, 2011) the applicant claimed that a fear of persecution arose by reason of membership of a particular social group. The submissions which were made to the Tribunal were that the RAC:

8 · Erred in fact and in law by deciding that the Applicant did not meet the criteria set out in the Convention as defined by s. 2 of the 1996 Act, as amended.

9 · Erred in fact and in law in failing to apply the criteria for determining the application in a spirit of justice and understanding as recommended by the UNHCR Handbook.

10 · Erred in fact and law in applying the wrong burden and standard of proof and failed in its duty to properly investigate the persecution complained of.

11 · That the applicant's credibility was such that the Commissioner erred in not giving her the benefit of the doubt.

12 6. The appeal took place by way of oral hearing on 21 ^st September, 2011. The Tribunal's decision issued on 18 ^th October, 2011 and it affirmed the Commissioner's recommendation not to declare the applicant a refugee.

13 7. In the "Analysis of the Applicant's claim", it was noted that at the hearing a number of decisions were handed in, including " Shah v. Islam [1999] 2 AC 629 and S.A. v. the Secretary of State for the Home Department, together with an Amnesty International Report and a Pakistani Human Rights Watch report and that the presenting officer handed in the decisions relevant to the applicant's parents together with the judgment of Clarke J. in INM v. the Minister for Justice [2009] IEHC 233.

14 8. The Tribunal Member went on to find that "nothing in the evidence would lead me to a conclusion that the infant is entitled to protection."

15 9. The analysis continued with the decision-maker invoking the decision in Shah and Islam to further support his "view that the infant is not in need of protection."

16 10. He then referred to the applicant's mother's claim who:

"… has been the subject of a refusal and internal relocation was considered and found to be appropriate."

17 I find that the Applicant's mother has not adduced any evidence to show that the State is unwilling or unable to protect her and her Defendant [sic] daughter. In circumstances where Karachi has in excess of 25 million people living there, I find it neither plausible nor credible that she would be at any risk in Karachi. I do not find anything in the evidence on behalf of the Applicant differs from her mother's application.

18 The Applicant's mother is a university educated person and is in a better position than most to internally relocate."

19 11. With reference to the UNHCR Position Paper on Relocation, February 1999, the Tribunal Member considered the applicant's position as follows:-

"Even if the Applicant had a well-founded fear of persecution, which I do not believe she has, in this Applicant's case it would appear that internal relocation presented a viable alternative notwithstanding the Applicant's claim to be at risk in the entire state."

20 12. Citing the decisions of the House of Lords in R. v. Secretary of State for the Home Department, ex parte Sivakumaran [1988] AC 958; Shah v. Islam [1999]2 AC 629; Horvath v. Secretary of State for the Home Department [2001] 1 AC 489; the Canadian Supreme Court decision in Canada (Attorney General) v. Ward [1993] 2 SCR 689 709; Hathaway & Foster's "The Law of Refugee Status"; the decision in Kadenko v. Canada (Solicitor General) [1996] 143 DLR(4^th) 532 and Regulation 7 of the European Communities (Eligibility for Protection) Regualtions 2006, the Tribunal Member opined

"I am of a view that the Applicant can reasonably be expected to stay in a part of the Applicant's country where there is no well-founded fear of being persecuted or real risk of suffering serious harm. In reaching this conclusion, I have had regard to the general circumstances of [sic.] prevailing In [sic] that country and the personal circumstances of the Applicant."

21 When the state in question is a democratic state, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question; the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her."

22 13. Quoting, inter alia, a judgment of the Federal Court of Canada (Thirunavaukkarasu 109 D.L.R. 4^th 662)), the Tribunal Member noted that the judge in that case (Linden J.):

"went on to observe that...