N.E. (Minor Suing by his father and next friend M.E.A.) v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 14 January 2015
• Neutral Citation: [2015] IEHC 8
• Court: High Court
• Date: 14 January 2015

[2015] IEHC 8

THE HIGH COURT

[No. 39 J.R./2011]

E (N) (a minor) v Refugee Appeals Tribunal & Ors

JUDICIAL REVIEW

IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED),

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

N.E. (A MINOR SUING BY HIS FATHER AND NEXT FRIEND M.E.A.)

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND LAW REFORM, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

EEC REG 343/2003 ART 9(2)

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S13(6)(C)

REFUGEE ACT 1996 S13(5)(A)

EEC DIR 2005/85

N (SU) [SOUTH AFRICA] v REFUGEE APPLICATIONS CMSR UNREP COOKE 30.3.2012 2012/33/9649 2012 IEHC 338

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 REG 9(C)(2)

R (I) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

REFUGEE ACT 1996 S11

KRAMARENKO v REFUGEE APPEALS TRIBUNAL & ORS 2005 4 IR 321 2004 2 ILRM 550 2004/26/6170

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

M (P) v REFUGEE APPEALS TRIBUNAL (PILLAY) & ORS UNREP BARR 2.10.2014 2014 IEHC 497

Z (MU) v REFUGEE APPEALS TRIBUNAL (O'BRIEN) & MIN FOR JUSTICE UNREP EDWARDS 12.2.2010 2010/54/13568 2010 IEHC 141

I (E) & I (A) (MINORS) v MINISTER FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (O'GORMAN) UNREP MAC EOCHAIDH 1.30.2014 2014 IEHC 27

Immigration and asylum – Credibility – State protection – Applicant seeking refugee status due to fear of Pakistani authorities – Whether applicant”s father and next friend was a credible witness

Facts: The applicant is five years of age. He was born in Ireland but is a national of Pakistan and brought proceedings through his father and next friend (Mr A). In 2006, Mr A, while living in Pakistan, was alleged by the Federal Investigation Agency (FIA) to have obtained money from eight men in order to traffic them to Korea. It was alleged that Mr A did not send these men abroad as agreed but kept their money. Mr A was arrested and taken into custody. He was subsequently admitted to bail in 2007. Whilst on bail, Mr A fled from Pakistan to Ireland. In 2008, he applied for asylum. The immigration authorities conducted a search of EURODAC which revealed that Mr A had a valid visa to enter the UK. A take back request was made to the UK by the Irish immigration authorities which was accepted. Mr. A was directed to present himself to the Garda National Immigration Bureau to make arrangements for his removal to the UK. He did not comply and was classified as an absconder. The applicant was born in 2009 and when the period during which Mr A could be returned to the UK had elapsed, he applied to be readmitted to the asylum process. In 2010, his application for readmission was granted and he was directed to attend for interview. Mr A did not attend for interview. Mr A wrote to the Office of the Refugee Applications Commissioner (ORAC) seeking accommodation on behalf of himself and his family. He once again applied to be readmitted to the asylum process and his application was refused. Mr A made an asylum application on behalf of the applicant. Mr A attended for a s. 11 interview at which he spoke on behalf of the applicant. Mr A claimed that there was an attempt on his life in Pakistan by persons connected with the government who were also instrumental in bringing false charges against him. He also claimed that there was an attempt to kidnap his daughter still living in Pakistan. He feared that if the applicant returned to Pakistan, he would be at risk of death or kidnap. Mr A said that the reason for this persecution was that he refused to join the Muslim League. The ORAC recommended that the applicant should not be declared a refugee. It was considered that Mr A”s disregard for the immigration regulations of the State raised credibility concerns and cast doubt on the validity of the claim, and that that Mr A had not shown that the applicant would suffer persecution due to political opinion in Pakistan. It was also considered that the options of state protection and internal relocation would be available to the applicant. The ORAC report also concluded that no valid reason had been advanced by Mr A for the delay of almost a year and a half in applying for asylum on behalf of the applicant. The applicant appealed to the Refugee Appeals Tribunal (RAT) claiming that ORAC had erred in law and fact. The RAT affirmed the ORAC recommendation, concluding that that Mr A was fleeing prosecution. The applicant sought from the High Court an order of certiorari quashing the determination of the RAT and various declaratory reliefs primarily to the effect that the respondents (the Tribunal, Minister for Justice and Law Reform, and Attorney General) failed to provide an effective remedy to the applicant, on the grounds that the procedure adopted deprived the applicant of an effective remedy as required by Council Directive 2005/85/EC and the European Convention on Human Rights, and on grounds of an alleged failure to have any adequate regard to the applicant's submissions and documentation while placing undue reliance on adverse credibility findings in the parents' asylum application.

Held by Noonan J that the fact that documents submitted by the applicant were not specifically referenced by the Tribunal Member did not invalidate the decision; the applicant had not shown that any of the documents were probative of the core issue, namely that Mr A and by extension the applicant would suffer persecution for a Convention reason. Noonan J held that The RAT decision carefully examined the possibility of relocating to Karachi and considered the relevant demographics of that city. Quite apart from the internal relocation finding, Noonan J noted that the finding that the applicant had not established a failure of state protection was not challenged.

Noonan J held that the application should be dismissed.

Application refused.

Background Facts

1 1. The applicant in these proceedings was born on the 26th March, 2009 and is thus five years of age. He was born in Ireland but is a national of Pakistan and brings these proceedings through his father and next friend ("Mr. A").

2 2. Some time in 2006 or possibly early 2007, Mr. A, while living in Pakistan, was alleged by the Federal Investigation Agency ("FIA"), described as one of Pakistan's premier law enforcement agencies, to have been involved in human trafficking and to. have obtained substantial sums of money from eight men in order to traffic them to Korea. It appears to have been alleged that Mr. A did not send these men abroad as agreed but kept their money. This appears from an FIA document described as "First Information Report" dated the 5th July, 2007. It seems that in or around that time, Mr. A was arrested and taken into custody. He was subsequently admitted to bail on the 16th August, 2007.

3 3. Whilst on bail, Mr. A fled from Pakistan and appears to have arrived in Ireland sometime later in 2007. On the 30th January, 2008, Mr. A applied for asylum in Ireland. The immigration authorities here conducted a search of EURODAC which revealed that Mr. A had a valid visa to enter the United Kingdom. Article 9(2) of the Dublin II Regulations provides that where an asylum seeker is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for asylum. Accordingly, a take back request was made to the United Kingdom by the immigration authorities here which was duly accepted in June, 2008 by the UK authorities. In July, 2008, Mr. A was informed of this fact and on the 13th August, 2008, a letter was sent to Mr. A directing him to present himself to the Garda National Immigration Bureau on the 28th August, 2008 to make arrangements for his removal to the UK. Mr. A had solicitors acting on his behalf at this time.

4 4. Mr. A did not comply with the direction to present himself for removal from the jurisdiction and on the 2nd September, 2008, he was classified as an absconder. The applicant was born on the 26th March, 2009 and when the period during which Mr. A could be returned to the United Kingdom had elapsed, he applied to be readmitted to the asylum process. By letter of 13th January, 2010, his application for readmission was granted and he was directed to attend for interview on the 22nd January, 2010. This correspondence was returned and Mr. A did not attend for interview. On the 8th. February, 2010, his application was deemed withdrawn.

5 5. On the 25th March, 2010, Mr. A's solicitors wrote to the Office of the Refugee Applications Commissioner ("ORAC") stating that they no longer acted for him. However shortly thereafter, they appear to have been re-instructed because the solicitors wrote on the 28th April, 2010 to ORAC seeking accommodation on behalf of Mr. A and his family. On the 9th July, 2010, Mr. A once again applied to be readmitted to the asylum process and on the 3rd August, 2010, his application was refused. On the 11th August, 2010, Mr. A made an asylum application on behalf of the applicant herein who was then approximately 16 half; months old. On the 8th September, 2010, Mr. A attended for a s. 11 interview at which he spoke on behalf of the applicant. It appears that Mr. A claimed that there was an attempt on his life in Pakistan by persons connected with the government who were also instrumental in bringing false charges against him. He also claimed that there was an attempt to kidnap his daughter who is a small child still living in Pakistan. He feared that if the applicant returned to Pakistan, he would be at risk of death or kidnap. Mr. A said that the reason for this persecution was that he refused to join the Muslim League.

6 6. On the 21st September, 2010, the ORAC authorised officer...