SZ (Pakistan) v Minister for Justice & Law Reform and Others

JurisdictionIreland
JudgeMr. Justice Hogan
Judgment Date01 March 2013
Neutral Citation[2013] IEHC 95
CourtHigh Court
Date01 March 2013
Z (S) [Pakistan] v Min for Justice & Ors (No 2)
BETWEEN/
SZ (PAKISTAN)
APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM, ATTORNEY GENERAL AND IRELAND (No.2)
RESPONDENTS

[2013] IEHC 95

[No. 512 J.R./2011]

THE HIGH COURT

Judicial Review - Refugee status - Deportation - Application for subsidiary protection refused - Validity of decision - Constitutionality - Immigration Act 1999 -

Facts: The applicant, who was originally from Pakistan, arrived in Ireland in December 2005 and applied for refugee status. He claimed that he had been targeted by members of Sipah e Sahaba, a radical Sunni Muslim organisation, because he was a Shia Muslim and involved in Shia voluntary groups. As a result, he claimed he was shot in the leg by a member of Sipah e Sahaba and then arrested and subjected to torture by police during interview in connection with the death of a member of that group. He travelled to different regions of Pakistan for four years with his family before escaping to Ireland alone. He claimed that if returned to Pakistan he faced persecution by the Sunni organisation with inadequate police protection available. The application was ultimately rejected in 2008 on the basis that he could be relocated in Pakistan which was proved by the four years of uninhibited travel that he had made prior to arriving in Ireland. His subsequent application for subsidiary protection was rejected on the same basis. It was further felt that a risk of serious harm had not been established. A deportation order was made.

The applicant sought a review of the subsidiary protection decision and the deportation order. On the 31 st January 2012, Hogan J refused leave to challenge the validity of the subsidiary protection decision and the deportation order on a variety of grounds. However, he left two matters to be determined pending the completion of the cases of Sivsivadze v. Minister for Justice, Equality and Law Reform [2012] IEHC 244 and Case C-277/11 MM v. Minister for Justice, Equality and Law Reform. These were subsequently delivered.

Held by Hogan J that the first issue to be determined was the constitutionality s. 3(1) of the Immigration Act 1999 which stated that a deportation order could potentially have lifelong effects. This matter was also considered in Sivsivadze v. Minister for Justice, Equality and Law Reform [2012] IEHC 244. It was held that the issue in that case was distinguishable from that of the applicant"s as there the matter considered was whether it was constitutional to grant a life long expulsion order when it involved a forcible separation from a family, potentially on a permanent basis. As the applicant"s family had remained in Pakistan, a deportation order would actually reunite them. Further, the challenge in Sivsivadze was ultimately rejected regardless of that potential consequence. The applicant"s ties with Ireland were also considered to be minimal. Leave to apply for judicial review on that basis was therefore refused on the basis that the applicant lacked the necessary standing.

The second issue was whether the Minister was obliged to supply a draft negative subsidiary decision to an applicant for comments prior to its adoption, which was dealt with and ultimately rejected in MM v. Minister for Justice, Equality and Law Reform. However, it was held that MM was clearly distinguishable from the present case as the applicant here had not had any negative credible findings made against him. Leave to apply for judicial review was therefore also refused on that ground.

Finally, the applicant had also applied to amend his statement of grounds to include a number of new issues. This was rejected on the basis that the matter was only adjourned to accommodate a decision on the remaining two matters from the original hearing.

Leave to apply for judicial review refused.

SIVSIVADZE & ORS v MIN FOR JUSTICE & ORS UNREP KEARNS 21.6.2012 2012 IEHC 244

M (M) v MIN FOR JUSTICE & ORS CASE NO C-277/11 22.11.2011 2012 WLR (D) 359

EEC DIR 2004/83 ART 4(1)

U (MA) & ORS v MIN FOR JUSTICE UNREP HOGAN 13.12.2010 2010/50/12672 2010 IEHC 492

IMMIGRATION ACT 1999 S3(1)

IMMIGRATION ACT 1999 S3(11)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(2)

EMRE v SWITZERLAND (NO 1) UNREP ECHR 22.5.2008 (APPLICATION NO 42034/04)

EMRE v SWITZERLAND (NO 2) UNREP ECHR 11.10.2011 (APPLICATION NO 5056/10)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 ART 8(2)

J C M (DEMOCRATIC REPUBLIC OF CONGO) v MIN FOR JUSTICE, EQUALITY AND LAW REFORM UNREP CLARK 12.10.2012 2012 IEHC 485

EEC DIR 2004/83 ART 4(1)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

M (M) v MIN FOR JUSTICE & EQUALITY (NO 3) UNREP HOGAN 23.1.2013 2013 IEHC 9

EEC DIR 2005/85 ART 39

D (HI) v B (A) CASE NO C-175/11 UNREP ECJ 31.1.2013

U (MA) v MIN FOR JUSTICE 2011 1 IR 749 2011 IEHC 95

U (MA) v MIN FOR JUSTICE UNREP HOGAN 13.12.2010 2010 50 12672 2010 IEHC 492

COX v ELECTRICITY SUPPLY BOARD (NO 2) 1943 IR 231 1942 76 ILTR 122

MCINERNEY HOMES LTD, IN RE UNREP SUPREME 22.7.2011 2011 IESC 31

1

1. This judgment is supplementary to the judgment which I delivered in these judicial review proceedings on 31 st January, 2012. In that judgment I had refused the applicant leave to challenge the validity of a subsidiary protection decision which had been taken by the Minister for Justice and Equality on a different variety of grounds. I had, however, left over two issues for determination by me at a later date pending the decision of the High Court in Sivsivadze v. Minister for Justice, Equality and Law Reform[20l2] IEHC 244 and that of the Court of Justice in Case C-277/11 MM v. Minister for Justice, Equality and Law Reform. As it happens, Kearns P. subsequently delivered his decision in Sivsivadze on 21 st June, 2012, and the Court of Justice delivered its judgment in MM on 22 nd November, 2012.

2

2. I will presently explain the potential significance of these two decisions and their relevance (if any) for the present case. It should be noted, however, that the applicant also seeks to amend his statement of grounds to include a number of issues which were not heretofore pleaded. Counsel for the respondent, Mr. Donnelly, understandably objects to this belated endeavour on the part of the applicant and insists that I have no jurisdiction to do so at this point.

The background facts
3

3. Before considering these questions it is, however, first necessary to narrate again the background facts which are relevant to this application. The applicant is a Pakistani national and a Shia Muslim who arrived here in December 2005, whereupon he applied for asylum. He is married and his wife and three children continue to reside in Pakistan. He had applied for leave to apply for judicial review to challenge both the Minister's decision to refuse to grant him subsidiary protection and the making of a deportation order against him. An important consideration is that the applicant has not, however, challenged the validity of a decision of the Refugee Appeals Tribunal dated 15 th September, 2008, as rejected his application for asylum.

4

4. On the 14 th November, 2011, I granted the applicant a stay on the deportation order pending the outcome of the leave application and I delivered the principal judgment on that leave application on 31 st January, 2012.

5

5. The applicant says that he worked for Shia voluntary groups in Lahore in the period from 1994-2001. Every year a commemorative ceremony was held for a particular deceased imam, but in 2001 one of the organisers was killed. The applicant's brothers and a friend wanted to avenge this death and to that end killed a member of Sipah e Sahaba. I should interpose here to observe that Sipah e Sahaba is a radical Sunni organisation which has been banned by the Pakistani authorities. The attitude of Sipah e Sahaba towards the Shia may be gauged by the fact that one of its objectives is to have the Shia treated as non-Muslims.

6

6. It is contended that this killing was witnessed and that the applicant came to be associated with these events. The applicant claims that on the evening of the attack he was shot in the leg by activists associated with Sipah e Sahaba, but that he managed to escape. The applicant was arrested by the police about one month later about this killing. He maintains that he was tortured and mistreated during this interview and that he needs ongoing treatment for slipped disks and spinal injuries as a result. Ultimately, however, the police came to realise that he was not involved in this incident and he was released.

7

7. After these incidents the applicant moved to Karachi with his family where they stayed three months with his aunt. After a further stay in Multan for six months, his wife and family moved back to Lahore, while the applicant returned to Karachi.

8

8. The applicant returned to Lahore in June, 2005 following assurances that he would not be harmed. However, following threats issued in anticipation of the annual commemoration for the deceased in October 2005, the applicant escaped to Kuwait before ultimately making his way to Ireland with the assistance of an agent.

9

9. The applicant's fear is based on the threat posed to by Sipah e Sahaba and a sister organisation, Lashkar e Jhangvi. He contends that there is no effective police protection and that, in any event, his previous experience with the Pakistani police was a very unpleasant one, so that he is unwilling to resort to them.

10

10. The applicant's asylum claim was ultimately rejected in 2008. The Tribunal member accepted the threat posed to members of the Pakistani Shia community by Sipah e Sahaba. His claim was nonetheless rejected, essentially on the basis that the applicant was able to successfully move about elsewhere in Pakistan...

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