S.R v Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: MS JUSTICE M. H. CLARK
• Judgment Date: 29 January 2013
• Neutral Citation: [2013] IEHC 26
• Judgment citation (vLex): [2013] 1 JIC 2903
• Court: High Court
• Date: 29 January 2013

[2013] IEHC 26

THE HIGH COURT

Record No. 302 J.R./2012

R (S) [Pakistan] v Refugee Appeals Tribunal & Ors

Between:

S. R. [PAKISTAN]

APPLICANT

-AND-

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

RESPONDENTS

RSC O.86

A (SI) [SUDAN] v REFUGEE APPEALS TRIBUNAL (BRENNAN) & ORS UNREP CLARK 4.10.2012 2012 IEHC 488

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS PARA 202

REFUGEE ACT 1996 S11(B)

EEC DIR 2004/83

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) SI 518/2006 REG 5

EEC DIR 2004/83 ART 3(A)

EEC DIR 2004/83 ART 3(B)

EEC DIR 2004/83 ART 3(C)

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 26.11.2009 2009/47/11883 2009 IEHC 353

REFUGEE ACT 1996 S13

A (I) & ORS v PAKISTAN CG 2007 UKAIT 00088

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

SINGH & ORS v BELGIUM UNREP ECHR 2.10.2012 (APP NO. 33210/11)

IMMIGRATION

Asylum

Application for leave to seek judicial review - Pakistan - Ahmadi faith - Credibility assessment - Correct approach to evaluation of refugee claim - Country of origin information - Medical report - Treatment of submitted documentation - Internal relocation - State protection - Error of fact - Error of law - Irrationality - Error of fact and law by Commissioner - Substantial grounds - Whether substantial grounds for quashing decision on credibility - Whether conclusions on internal relocation and state protection rationally based - Whether error of law - R(I) v The Minister for Justice, Equality and Law Reform [2009] IEHC 353, (Unrep, Cooke J, 24/7/2009) applied - KK (Ahmadi, unexceptional, risk on return) Pakistan [2005] UK AIT 00033 (4/2/2005); A & Ors (Ahmadis, Rabwah) Pakistan CG [2007] UK AIT (23/10/2007) and Singh & Others v Belgium (App No 33210/11), (Unrep, ECHR, 2/10/2012) considered - Rules of the Superior Courts 1986, O 84, r 20 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Refugee Act 1996 (No 17), s 11B - Council Directive 2004/83/EC, art 4 - Leave granted; leave also granted for amendment of statement of grounds to include additional grounds (2012/302JR - Clark J - 29/1/2013) [2013] IEHC 26

R(S) v Refugee Appeals Tribunal

Facts The applicant was a national of Pakistan and had made a claim of asylum in Ireland. As part of the applicant”s claim it was contended that he was a member of the Ahmadi faith and had been subject to persecution in Pakistan where it was perceived by some to be a blasphemous sect. The claim had been rejected and it had been found, inter alia, that the applicant had not established a well-founded fear of persecution. The applicant sought to have the decision quashed by way of judicial review. The respondent contended that the fact that applicant had returned to Pakistan on a couple of occasions and that his family lived in Pakistan was inconsistent with a fear of persecution.

Held by Clark J in quashing the decision of the respondent: The finding on the availability of State protection to Ahmadis ran contrary to all country of origin information that was available including information available in the UK Tribunal determinations. The finding that the applicant had failed to seek state protection or that it would be available to him because he was a man with influence was irrational on the facts of the case. The respondent appeared to have incorrectly applied the guiding provisions as set out in S.I. No. 518 of 2006 and under Directive 2004/83/EC the “Qualification Directive”. No reference had been made to several highly relevant reports furnished by the applicant which were capable of supporting his assertions of persecution and discrimination.

1 1. The applicant is a national of Pakistan whose identity and membership of the Ahmadiyya Muslim faith is not in dispute. He seeks leave to apply for an order of certiorari quashing the decision of the Refugee Appeals Tribunal, notified to him on 26 ^th March 2012, which affirms the recommendation of the Refugee Applications Commissioner that he should not be granted a declaration of refugee status. The application for leave to apply for judicial review was heard on 19 ^th December 2012. Mr Gary O'Halloran B.L. appeared for the applicant and Ms Elizabeth Cogan B.L. appeared for the respondents.

2 2. In fact, the matter first came before the Court on 22 ^nd November 2012 as an application for an urgent priority hearing. The basis for such priority resembled those applications made in the Court of Criminal Appeal pursuant to Order 86 RSC in instances where a ground likely to succeed is identified and the convict is released on bail while the appeal against conviction is pending. The Court was therefore receptive to the application and directed notification to the respondents. By the time the respondents were notified, events had moved on in that the applicant had unlawfully left the State having travelled as far as Singapore via Frankfurt on someone else's passport. He was detained by the immigration authorities in Singapore and returned to the State and to his direct provision accommodation in Foynes, Co. Limerick. While there, he experienced significant personal difficulties. As soon as the Minister was made aware of those personal difficulties, he arranged for the applicant's transfer to alternative accommodation. The applicant explained that he left Ireland in an act of desperation as he believed that he could apply successfully for asylum in Australia which was his destination.

3 3. The leave application was listed for hearing on 18 ^th December 2012 and the respondents were asked if they would agree to a telescoped hearing bearing in mind the common ground in the case as the applicant's identity and his membership of the Ahmadi faith was accepted. The respondents would not consent either to a telescoped hearing or to the other option suggested by the Court namely that the leave application would be dealt with by way of written submissions and the hearing date would be reserved for the substantive hearing should that prove necessary. The Court was informed that the application for judicial review would be fully contested on the basis that the applicant had twice returned to Pakistan while he was living in the State on a student visa, that members of his family lived in Pakistan without harm and that he did not claim asylum in Ireland until he had been in the State for four years and that none of these facts were consistent with a fear of persecution.

Background to the claim

4 4. The applicant first came to Ireland in 2007 on a student visa. His visa was renewed annually and while studying, he worked within the permission of his visa as a security man. While here, he played cricket and travelled as part of the Irish team to the UK. He also visited relatives in the UK, Germany and Sweden. In 2009 he returned to Pakistan to visit his parents and then returned to Ireland to continue his studies. In 2011, having completed his course, he returned to Pakistan with the intention of remaining there for good as his parents were ageing and his mother was not well. However, events in his hometown of Rabwah / Chenab Nagar caused him to leave Pakistan, to return to Ireland on his student visa and to apply for asylum in this State. He already had a valid passport so he applied for a further study visa and travelled here on scheduled flights. On his arrival, he went to the Office of the Refugee Applications Commissioner (ORAC) in Mount Street but it was closed for a bank holiday weekend. He returned at the earliest possible opportunity on the following Tuesday and applied for asylum. He had all his ID documents with him including his passport which states that he is Ahmadi. He also submitted his national ID and university qualifications and his father's identity documents, a newspaper report calling for action to be taken against him, a copy of a First Information Report (FIR) registered against his father, medical records relating to an attack on his brother, a letter attesting to his membership of the Ahmadi faith and a copy of a book which mentioned the imprisonment of his father for reciting the call to prayer.

Decision of the ORAC

5 5. The Commissioner made a negative recommendation in his s. 13 report dated 14 ^th July 2011. In general, it was found that the applicant had not established a well-founded fear of persecution as he was an "unexceptional" Ahmadi and it was therefore "unlikely" that he would be targeted and persecuted if returned to Pakistan. This determination relied heavily on decisions of the UK Immigration Appeals Tribunal of 2005 and 2007 which found that although Ahmadis have been victims, in general victims were few in number relative to the 600,000 Ahmadis in Pakistan, and further that discrimination did not equate to persecution. The applicant's credibility was found to be undermined as he had lived without danger after an alleged attack in 2011. His credibility was also impugned because he had not produced any evidence relating to a 2005 attack and because he failed to apply for asylum until 2011. His return to Pakistan to see his parents in 2011 was held to be inconsistent with a fear of persecution.

The Appeal to the Tribunal

6 6. A large number of country of origin information (COI) reports were furnished to the Refugee Appeals Tribunal in advance of the oral hearing took which place on 11 ^th October and 5 ^th December 2011 and 31 ^st January 2012. Translations of documents were furnished, including a police FIR arising from a complaint made by the outraged brother of a university friend who expressed an interest in joining the Ahmadiyya faith following conversations with the applicant. The findings made by the Commissioner were specifically disputed at the oral hearing and the...