S.A.B. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 02 October 2014
• Neutral Citation: [2014] IEHC 495
• Court: High Court
• Date: 02 October 2014
• Docket Number: [2010 No. 42 J.R.]

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

S. A. B.

APPLICANT

AND

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

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2014] IEHC 495

[2010 No. 42 J.R.]

THE HIGH COURT JUDICIAL REVIEW

Asylum - Pakistani national - Faisalabad - Shia Muslim - President of mosque - Fear of persecution on return - Preliminary issues - Extension of time - Translation of grounding affidavit - s. 2 of the Refugee Act 1996 - Credibility findings - Timeline of events - Interim period - Authenticity of newspaper - Country of Origin Information

Facts The applicant stated that on 9 ^th January 2009 he led a celebratory procession of Shia Muslims in memory of Imam Hussain. He said the procession was attacked by the Taliban supporter, Eh-le-Hadiz, a splinter group of a terrorist organisation known as Sipah-i-Sahaba. Four members of this group were shot dead by some people in the applicant's procession. After the attack, the applicant discovered the police were looking for him. Consequently, he went to Rawalpindi where he stayed with a friend for two weeks. He then moved to Gujranwala, where he stayed with the grandparents of his friend for four weeks. A first information report was lodged with the police. He subsequently spoke to a lawyer who advised him that as he was being pursued for breach of Article 302 of the Criminal Code, he would be hanged if he was found guilty. The lawyer advised him to flee the country. His business partner made arrangements for the applicant to be taken out of the country by a trafficker. The applicant left Pakistan on 21st February 2009 and arrived in Ireland on 23rd February 2009. A s.11 interview was held. The authorities put to him that there was no media report of violence at the alleged procession. The applicant later provided a newspaper article discussing the event. The Refugee Applications Commissioner in the s. 13 report dated 30th June 2009 held that the applicant had not established a well-founded fear of persecution as required by s. 2 of the Refugee Act 1996. The applicant appealed this finding to the Refugee Appeals Tribunal (RAT).

Held The RAT made a number of credibility findings adverse to the applicant. It submitted the time span involved in the filing of the alleged complaint questioned the grounds and validity of the complaint. It referred to the six week period between the date of the procession and the date on which the applicant fled to Ireland. The applicant”s account gave the impression that he was living openly and without hindrance from the police and security forces. However, the RAT did not say whether it rejected the applicant's account in this regard. In the circumstances, the judge decided the applicant's account seemed to be a sufficient explanation for how he avoided police attention for that period of time. It was put to the applicant that there was no media report of the violence alleged. The judge said if the RAT was suggesting the newspaper was a forgery it had to do so in explicit terms. Also the RAT could have carried out further investigation on the newspaper by an Urdu translator to ascertain whether it was genuine or not. The judge considered I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353. He was not satisfied that the RAT was entitled to reject the documentary evidence without closer investigation. Furthermore, if it was going to reject the documentation it should have said this in clear and explicit terms. An assumption was later made that the attack did occur at all and the applicant was questioned as to why, if there were 400-500 people at the procession, no one was able to provide a witness statement in support of the applicant. The applicant submitted a large amount of Country of Origin Information (COI) to demonstrate that the police and judiciary in Pakistan were corrupt. The judge stated it was not sufficient for the RAT to cherry pick parts of the COI which supported the proposition that the police and judiciary were not corrupt. He stressed there must be a balanced and fair appraisal of all of the COI submitted. In relation to the final credibility finding, the judge ruled the RAT was entitled to reach a conclusion that the applicant had not provided evidence that members of the opposing sect were looking for him or that he would suffer retaliation should he be returned to Pakistan.

-The judge was satisfied that the applicant had established that the decision of the RAT was deficient in the ways outlined. The applicant was entitled to an order quashing the decision of the RAT dated 3rd December 2009. The judge therefore directed the matter be referred back for consideration by a different Tribunal Member.

Mr. Justice Barr

JUDGMENT of Mr. Justice Barr delivered on the 2nd day of October, 2014

1 The applicant is Pakistani national and was born on 26th September, 1974. He lived in Faisalabad with his parents, his wife and daughter. He is a Shia Muslim. He was the President of Imambargah, Aastana Haider Karar Association, which is the name of his mosque. He has held this position since July 2001. He owned a clothing business which was established in 1995 and carried on this business in partnership with another man.

2 It is the applicant's case that on 9th January, 2009, he led a celebratory procession of Shia Muslims in memory of Imam Hussain. The procession was attacked by the Taliban supporter, Eh-le-Hadiz, a splinter group of a terrorist organisation known as Sipah-i-Sahaba.

3 Four members of this group were shot dead by some people in the applicant's procession. After the attack, the applicant learnt that the police were looking of him. He went first to Rawalpindi where he stayed with a friend for two weeks. He then moved to Gujranwala, where he stayed with the grandparents of his friend for four weeks.

4 He learnt that a First Information Report had been lodged with the police and that was why they were looking for him. The applicant stated that he spoke to a lawyer who advised him that as he was being pursued for breach of Article 302 of the Criminal Code, he would be hanged if he was found guilty. The lawyer advised him to flee from the country. His business partner made arrangements for the applicant to be taken out of the country by a trafficker. The applicant left Pakistan on 21st February, 2009, and arrived in Ireland on 23rd February, 2009.

5 At the s. 11 interview, it was put to the applicant that there was no trace on the internet of any reports of the violence at the alleged procession. The applicant said that he would provide some documentation in relation to the event. He subsequently sent in a newspaper in which there was an article referring to him in the following terms:-

"Unidentified people attack the annual Yaum-e-Ashura (Ashura Dey) Procession with modern weapons.

Sudden attack causes stampede in the procession; officer in charge of security, chairman of the mosque, Imam Bargah committee and other workers kill four assailants in retaliatory action.

Local people set houses of Shia community on fire; a case against Amir HS.B. is lodged following an order of area magistrate.

Faisalabad (staff reporter): the annual Ashura Dey procession was attacked by arm miscreants on Multiana Road, Faisalabad. A stampede in the procession followed. The officer in charge of security of the procession, chairman of the mosque, Imam Bargah Astana Haider-e-Karrar committee and other workers fired in retaliation and shot four assailants down. The reporting of the incident caused widespread resentment. A demonstration was organised and some angry people set fire to houses of the Shia. The administration issued an order to the area magistrate to take immediate action and to take the situation under control. On receiving the order, the police lodged a case against the chairman of the mosque committee, A.H.S.B. under section 302 of PPC and launched the action to arrest the accused. "

6 The Refugee Applications Commissioner in the s. 13 report dated 30th June, 2009, held that the applicant had not established a well founded fear of persecution as required by s. 2 of the Refugee Act 1996 (as amended). The applicant appealed this finding to the Refugee Appeals Tribunal (RAT) which held an oral hearing on 12th November, 2009.

7 There was quite an amount of country of origin information (COI) before the Tribunal at this hearing. The following documents had been submitted:-

"First information report dated 9th January, 2009, second version of the first information report dated 9th January, 2009, copy of bank card, bank statements (six pages), documents certifying applicant as president of the committee at his mosque, documents stating that the applicant was an 'ardent member' of the Azadar Alliance for the district of Faisalabad, copy arrest warrant in respect of the applicant dated 13th April, 2009, human rights watch world report 2009 - Pakistan, UK border agency report on Pakistan dated 28th July, 2009, newspaper in Urdu language from Pakistan, translation of article referring to the applicant in the said newspaper, national ID card, letter from trade union certifying he was a member of the union. "

8 Before looking at the applicant's case in relation to the RAT decision it is necessary first to deal with two preliminary matters.

Extension of Time

9 Section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000, requires judicial review proceedings to be commenced within a period of 14 days from the date on which the applicant was notified of the RAT decision. In the present case, it is...