S.K. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 05 November 2014
• Neutral Citation: [2014] IEHC 520
• Court: High Court
• Date: 05 November 2014

[2014] IEHC 520

THE HIGH COURT

[No. 1118 J.R./2009]

K (S) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

S.K.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

HORVATH v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 AC 489 2000 3 WLR 379 2000 3 AER 577 2000 IMM AR 552 2000 INLR 239 2000 150 NLJ 1075

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

E (AE) v REFUGEE APPEALS TRIBUNAL UNREP CLARK 13.11.2009 [TRANSCRIPT NOT AVAILABLE]

B (GO) v MIN FOR JUSTICE UNREP BIRMINGHAM 3.6.2008 2008/2/390 2008 IEHC 229

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7

Z (V) v MIN FOR JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215 2003/49/12190

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 91

JANUZI v SECRETARY OF STATE FOR THE HOME DEPT 2006 2 AC 426 2006 2 WLR 397 2006 3 AER 305 2006 UKHL 5

T (D) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 3.11.2009 2009/54/13737 2009 IEHC 482

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7(2)

Judicial Review – Refugee Appeals Tribunal – Fear of Persecution – State Protection – Relocation – Pakistani National – Taliban

The applicant in this case, a Pakistani national, sought an order of certiorari quashing the decision of the first named respondent, the Refugee appeal tribunal, for its decision to reject the applicant”s request for refugee status on the grounds that if she were to return to Pakistan she would be subject to persecution due because of her membership of a particular social group or alternatively, because of her political opinion. The issue came before McDermott J presiding the High Court.

The applicant contended that she was a member of the Pashtun tribe and because of this among other factors she had a legitimate fear of Taliban aggression against her and her family. The Tribunal affirmed the decision of the office Refugee Application commissioner rejected the appeal on the grounds that a system of state protection exists in Pakistan and that the difficulties faced by the applicant could not be said to arise out of her Pashtun ethnicity, and that no country of origin information was referred to which illustrated difficulties faced by the Pashtun in moving to large cities such as Lahore and Karachi. The applicant submitted that the Tribunal erred in law in the manner in which it assessed the existence of state protection in Pakistan. While it is accepted that investigations occurred concerning the husband”s disappearance and the attack on the applicant”s father”s home, it is submitted that the Tribunal failed to assess whether there was effective state protection available to the applicant. McDermott J considered the test to be applied when considering the effectiveness of state of protection and was assisted by the cases, E.A.E v. Refugee Appeals Tribunal And B. v. Minister for Justice [2008]. McDermott J decided that it was an entitlement of the Tribunal to apply a presumption of state protection and held that the onus was on an applicant to demonstrate ineffective state protection. In regards to the suitability of relocating to Lahore or Karachi McDermott J. determined that the applicant could effectively avoid the Taliban in these predominantly anti-Taliban, secularized cities. McDermott J. concluded that it would be reasonable for the applicant to relocate to either Lahore or Karachi and it was demonstrably not unduly harsh for her to do so. McDermott J was not satisfied that the applicant had established that the decision of the Tribunal was fundamentally flawed on the grounds advanced, and the application must therefore be rightfully refused.

1 1. This is a telescoped hearing in which the applicant seeks an order of certiorari quashing the decision of the first named respondent (the Tribunal) made on 28 ^th September, 2009, upholding the decision of the Refugee Applications Commissioner not to recommend that the applicant be granted refugee status on the grounds of her membership of a particular social group or alternatively, because of her political opinion.

Background

2 2. The applicant is a national of Pakistan and comes from Waziristan, part of the Federally Administered Tribal Areas of Pakistan. She states that she is Pashtun and arrived in Ireland on 22 ^nd August, 2008, accompanied by her son, P.K., who was born in 23 ^rd March, 2004.

3 3. The applicant claims to have fled Pakistan because of fear of Taliban aggression against her and her family. She states in the ORAC questionnaire that her father arranged her marriage to his friend's son, which was customary in her tribe. Her future husband became disabled and the marriage did not proceed. A marriage was then arranged between the applicant and her first cousin, T.K., who was an influential tribal leader.

4 4. In April, 2004 the applicant's cousin, who was a Taliban member, was released from Guantanamo Bay. The applicant's husband attempted to reassure the Pakistani authorities that her cousin's return would not lead to any civil unrest or disturbances. However, it was claimed that her cousin was killed by the authorities in 2007.

5 5. The applicant also claims that her former fianceacute;e's brother, who was also a high ranking Taliban member, turned the Taliban against her husband, saying that he was involved in colluding in her cousin's death at the hands of the authorities. This deception was in revenge for the cancelled engagement. The deception led to the applicant's husband being attacked by the Taliban on two separate occasions. The applicant went to live at her father's house in Gomal, and her husband remained in the tribal village. The applicant also claims that her father's home was attacked ten days after her arrival and that a number of people were killed. She presumed that the Taliban were responsible as did the police who attended and investigated the matter as set out in the police report furnished in the course of the application. It should be noted that the father's house at Gomal was situated outside the province of Waziristan.

6 6. The applicant then left Gomal for Lahore, travelling with her son, a servant and a bodyguard. Her father provided for her financially. The applicant claims that she and her son suffered general discrimination from the authorities and people in Lahore and Karachi by reason of their Pashtun ethnicity. The authorities questioned her about where she came from and the local school allegedly refused to enrol her son. The applicant's presence was also said to be of concern to local people, who allegedly pressurised her landlord into evicting her.

7 7. While the applicant and her son were in Lahore, the applicant's husband vanished. It is alleged that the Taliban were involved in his disappearance and attempts were made by the applicant's father to find him. This included securing the assistance of Senator Saleh Shah, who made visits to Waziristan in an attempt to find the applicant's husband. A report was also made to local police and a missing person's application was made to the Supreme Court of Pakistan seeking assistance in finding him.

8 8. The applicant and her son relocated to Karachi in July, 2008 where similar discrimination allegedly occurred. The family was accused of membership of the Taliban. They remained in Karachi for five weeks after which the applicant's father arranged for the applicant and her son to leave Pakistan by paying an agent $16,000 to convey them out of the country. The applicant states that they travelled on false documents and arrived in Ireland in August, 2008 and applied for asylum.

The ORAC Decision

9 9. The Office of the Refugee Applications Commissioner (ORAC) investigated the applicant's claim based on the information provided in the questionnaire and following two interviews held with the applicant. The applicant's son was included in the claim. Her application was rejected because the reasons advanced for seeking asylum were found to lack credibility and because internal location and state protection were deemed to be available to her in Pakistan. This finding was appealed to the Refugee Appeals Tribunal.

The Tribunal Decision

10 10. A notice of appeal issued on 4 ^th March, 2009. The applicant submitted country of origin information to illustrate the current political and social situation in Pakistan, and specifically in the Warizistan area. The appeal was rejected. The tribunal member was satisfied to accept the applicant's credibility in respect of the events upon which her claim was based and, in particular, in respect of her belief that the Taliban were targeting her husband. However, the Tribunal rejected the appeal on the grounds that a system of state protection exists in Pakistan, relying upon the request made to the Supreme Court of Pakistan and Senator Shah for assistance in finding Mr. Khan and the initiation of a police inquiry into the attack on her father's home. Furthermore, internal relocation was availed of successfully in two instances following the attack in Gomal when the applicant moved to Lahore and Karachi. The disappearance of her husband was also reported to the police. The Tribunal concluded that the difficulties faced by the applicant could not be said to arise out of her Pashtun ethnicity, and that no country of origin information was referred to which illustrated difficulties faced by the Pashtun in moving to large cities such as Lahore and Karachi.

11 11. The Tribunal considered a number of documents in respect of the disappearance of her husband which she believed was orchestrated by the Taliban who had accused him of spying for the government. The documents contained information very specific to the applicant's case...