E.S. v International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 07 October 2022
• Neutral Citation: [2022] IEHC 553
• Court: High Court
• Docket Number: [Record No: 2021/284 JR]

Between

E.S

Applicant

and

International Protection Appeals Tribunal

and

The Minister for Justice

Respondents

[2022] IEHC 553

[Record No: 2021/284 JR]

THE HIGH COURT

JUDICIAL REVIEW

International protection – Risk of persecution – Risk of serious harm – Applicant seeking to quash a portion of the decision of the first respondent – Whether the first respondent erred in law in finding that the applicant could avoid persecution by altering his occupation and consequently that an internal protection alternative existed

Asylum & immigration – Indian national – Claim of persecution – Judicial review – Internal Protection Alternative

Facts: The applicant was a Muslim and a citizen of India. The first respondent, the International Protection Appeals Tribunal (IPAT), accepted his claim that until 2017, he was a businessman working in the beef industry. In June 2017, he was attacked by cow vigilantes who insisted that he cease his trade and that he convert to Hinduism. The applicant arrived in Ireland in August, 2017 with two of his sons and applied for international protection claiming a risk of persecution in India within the nexus of religious belief, and a risk of serious harm. The core of his claim was that he had suffered religious persecution at the hands of Hindu nationalists because of his involvement in the beef industry. The applicant applied to the High Court seeking to quash the portion of the decision of the first respondent dated the 3rd of March, 2021 falling under the heading “Internal Protection Alternative”. In essence, the applicant contended that the first respondent erred in law in finding that he could avoid persecution by altering his occupation and consequently that an internal protection alternative existed.

Held by Phelan J that in view of the high threshold and careful consideration mandated in cases where an applicant would be recognised as a refugee but for the fact that he can safely relocate, the failure to assess the country of origin information (COI) in this case as to the risk for Muslims who have a known or perceived connection with the beef trade in the proposed alternative locations was concerning. When coupled with the failure to consider whether a requirement to refrain from lawfully pursuing a particular profession because of the associated risks constitutes persecution on the facts of this case, Phelan J was confirmed in her conclusion that the decision was unsustainable in law. Phelan J held that a proper application of the test in this case required the IPAT to consider why the applicant would cease his involvement in the beef industry and conceal his prior involvement if returned to India and whether, if it was concluded that he did so to avoid risk of persecution on religious grounds, then, on the facts of this case, such a restriction itself infringed his fundamental rights in a manner which reached a level or threshold which the law would regard as constituting “persecution”. Phelan J held that in this case that involved considering the impact on the applicant’s right to religious freedom as protected in law but also the significance from a human rights perspective of the applicant’s broader rights which included the right to work and the significance of the interference with such rights. Phelan J held that interference with broader rights may constitute persecution depending on the severity and extent of the interference and its impact. Phelan J held that, having found past persecution on religious grounds, the IPAT must also weigh the future risk upon relocation with proper regard to all COI which demonstrates the availability or otherwise of state protection against religious persecution in those areas. Phelan J held that the decision on whether alternative protection was reasonably available to the applicant on the facts in this case was a matter entirely for the IPAT having followed a correct methodology.

Phelan J held that she would hear the parties in relation to the appropriate form of orders to be made in view of the findings in this judgment.

Application granted.

Facts: The applicant was an Indian national who had arrived in the State with two of his sons and applied for international protection based on a risk of persecution in India for his religious belief, and a risk of serious harm. The applicant applied for judicial review of the first respondent’s finding that he could avoid persecution by altering his occupation in the beef trade and consequently that an internal protection alternative existed.

Held by Phelan J that the decision by the first respondent could not be sustained. The failure to assess the Country of Origin information as to the risk for Muslims who have a connection with the beef trade raised concerns. The Court also considered the failure to consider whether a requirement to refrain from pursuing a profession due to the associated risks constituted persecution meant that the decision was unsustainable in law.

The Court invited submissions from the parties as to the appropriate form of orders.

JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 7 ^th day of October, 2022

INTRODUCTION

1 . In these proceedings the Applicant seeks to quash the portion of the decision of the First Respondent dated the 3 ^rd of March, 2021 falling under the heading “ Internal Protection Alternative”.

2 . In essence, the Applicant contends that the First Respondent erred in law in finding that he could avoid persecution by altering his occupation and consequently that an internal protection alternative exists.

3 . These are the second set of judicial review proceedings brought by the Applicant in respect of the portion of the decision which falls under the heading “ Internal Protection Alternative”.

4 . The Applicant did not pursue at hearing a pleaded argument that the First Respondent had erred in finding that there was no discretion to grant a declaration of refugee status absent a consideration of the internal protection alternative under s. 32 of the International Protection Act, 2015 [hereinafter “the 2015 Act”] and so this claim will not be considered in this judgment.

5 . The Applicant is a Muslim and a citizen of India. The First Respondent has accepted his claim that until 2017, he was a businessman working in the beef industry. In June 2017, he was attacked by cow vigilantes who insisted that he cease his trade and that he convert to Hinduism.

6 . The Applicant arrived in Ireland in August, 2017 with two of his sons and applied for international protection claiming a risk persecution in India within the nexus of religious belief, and a risk of serious harm. The core of his claim was that he had suffered religious persecution at the hands of Hindu nationalists because of his involvement in the beef industry.

PROCEDURAL HISTORY

7 . In the interview conducted by the International Protection Office [hereinafter “the IPO”] under s.35 of the 2015 Act on the 14 ^th of September, 2018, the Applicant responded candidly that he would not be involved in the buffalo or cattle slaughter business again if he returned to India. Nevertheless, he was seeking protection in Ireland.

8 . On the 8 ^th of July, 2019, in a report pursuant to s.39 of the 2015 Act, the IPO recommended that the Applicant should be given neither a refugee declaration nor a subsidiary protection declaration. It appears from the report that the basis for this decision was the conclusion by the IPO that state protection is available. The Applicant appealed this recommendation to the International Protection Appeals Tribunal [hereinafter “the IPAT”]. While the Applicant originally sought an oral hearing, following a change in solicitors, his new solicitors sought a paper only appeal on his behalf. It was indicated that given the narrow parameters of the appeal, which was said to be directed to the question of availability of state protection in view of the grounds advanced for the finding made by the International Protection Office [hereinafter “the IPO”] refusing protection, a paper only appeal would be adequate. The Applicant's solicitor confirmed that it was considered that the appeal point was very net and could be dealt with fairly on the papers. In a response dated the 24 ^th of September, 2019 from the IPAT, the Applicant was reminded that all matters were open for consideration on appeal. In a reply dated the 1 ^st of October, 2019, the Applicant's solicitor accepted that the appeal gave rise to a de novo consideration of the papers but it was confirmed that the Applicant wished to proceed with a paper only appeal. It was, however, indicated that should issues requiring clarification arise, the Applicant could be requested to address same in writing or participate in an oral hearing directed to such issues as might arise.

9 . On the 4 ^th of December, 2019, IPAT affirmed the recommendation [hereinafter “the first decision”]. The appeal report was not exhibited, however, it is understood to be common case that in its first decision, the IPAT accepted that there was a reasonable chance the Applicant and his dependents would face a well-founded fear of persecution from the group that had previously attacked him, but that there was not a reasonable chance he and his dependents would face a well-founded fear of persecution from “ cow vigilantes” other than the group that attached him. The IPAT further found that State protection was not available, thereby not upholding the IPO decision in this regard. However, under the heading of “ Internal protection alternative”, the IPAT found that it was not unreasonable for the Applicant or his dependents to settle in Delhi, Bangalore or Hyderabad. Accordingly, in its first decision, the First Respondent accepted that the Applicant had been subject to incidences of persecution which had occurred because his occupation had led him to be the target of religious persecution. It also...