U.M. v Refugee Appeals Tribunal and Others

JurisdictionIreland
JudgeMr. Justice McDermott
Judgment Date28 November 2014
Neutral Citation[2014] IEHC 578
CourtHigh Court
Date28 November 2014

[2014] IEHC 578

THE HIGH COURT

[No. 830 J.R./2009]
M (U) v Refugee Appeals Tribunal (Linehan) & Ors
No Redaction Needed
JUDCIAL REVIEW
IN THE MATTER OF SECTION 5(2)(a) OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000,

BETWEEN

U.M.
APPLICANT

AND

DENIS LINEHAN ACTING AS THE REFUGEE APPEALS TRIBUNAL
RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
FIRST NOTICE PARTY

AND

IRELAND AND THE ATTORNEY GENERAL
SECOND NOTICE PARTY

BITI v REFUGEE APPEALS TRIBUNAL (RYAN) & ORS UNREP FINLAY GEOGHEGAN 24.1.2005 2005/4/827 2005 IEHC 13

R (AS) [AFGHANISTAN] v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP RYAN 22.10.2010 2011/44/12453 2010 IEHC 514

S (FK) v REFUGEE APPEALS TRIBUNAL UNREP DUNNE 30.10.2009 2009/51/12917 2009 IEHC 474

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

Leave to apply for Judicial Review – Refugee Appeals Tribunal – Fear of Persecution – Affiliation with a political organization – Asylum claim – Documentary Evidence

The facts of this case involve an application for leave to apply for judicial review of the decision of the respondent, Refugee Appeals Tribunal, to re-affirm the decision of the Refugee Applications Commissioner, declining the applicant to be granted refugee status. The applicant, a Pakistani citizen, claimed that he was an active member of the Awami National Party (A.N.P.) an anti government political organization and was subject to an unfair or corrupt police investigation due to his willingness to speak out against government. For this reason he fled to Ireland. The issue came before McDermott J. in the High Court.

McDermott J. analyzed the applicant”s contention that the tribunal erred in their decision making process and he cannot obtain state protection as it was the state in the form of the local administrators who fabricated the criminal case against him. The applicant”s primary argument was that additional documents relating to the alleged police investigation were not duly taken into account at the RAT decision. The applicant”s submitted that because the documentary evidence which had been expressly relied upon before the Commissioner and in the notice of appeal and which was, on its face, relevant to the events on which credibility depended was ignored, not considered, and not mentioned in the contested decision the RAT erred. McDermott J considered the case law pertaining to credibility findings on asylum matters such as I.R. v. Minister for Justice, Equality and Law Reform [2009]. McDermott J acknowledged that the documents were clearly relevant to the asylum claim and was satisfied to grant leave to apply for judicial review on the grounds put forward by the applicant.

1

JUDGMENT of Mr. Justice McDermott delivered on the 28th day of November, 2014

2

1. This is an application for leave to apply for judicial review of the decision of the respondent (the Tribunal) dated 3 rd July, 2009, rejecting the applicant's appeal against the decision of the Refugee Applications Commissioner (ORAC) declining to recommend that he be granted refugee status. The decision was communicated to the applicant under covering report dated 13 th July, 2009, said to have been received by him and his solicitor on 14 th July. Nineteen grounds were set out in the statement of grounds relied upon.

3

2. The applicant is a Pakistani citizen born in the North West Frontier Province of Pakistan on 25 th March, 1969. He is a Muslim and of the Yousuf Zai ethnic group. His first language is Pashtu and he also speaks English and Urdu. He claims to be the holder of a BISE (a Fellow of Science qualification from Karachi University), a BA (University of Peshawar) and an LLB (Gonial University). He states that he worked as a lawyer from June, 1995 to January, 2006 and was registered with the District Bar Association, SWAT, NWFP Pakistan. He married in 2004 and his wife remains in Pakistan and they have no children.

4

3. The applicant claims that he was an active member of the Awami National Party (A.N.P.) and General Secretary of the party in his area. He asserted that his duties included creating awareness about the party and the alleged wrongdoings of the then Pakistani Government. The applicant submits that whilst making an anti-government speech in January, 2006 he was warned by the police to stop, but when he continued in the police attempted to arrest him and he fled the scene.

5

4. The applicant claims that the Pakistani Government, through local administrators, fabricated a criminal case against him because of his political beliefs and a warrant for his arrest was issued under s. 204 of the Criminal Procedure Code. He was declared an offender under s. 512 of the Code by the Court of Session in Pakistan.

6

5. The applicant also claims that as a criminal lawyer, while engaged as counsel for a claimant in a double murder case in January, 2007 the accused who were members of a notorious criminal gang absconded. He claims that they threatened him and that, if he returned to Pakistan, his life would be in danger from them.

7

6. His claim for asylum was based, therefore, on two matters:-

8

(1) The fact that he was declared an offender by the Court of Session in Pakistan due to his political affiniations and the conspiracy to fabricate a criminal case against him, and

9

(2) The danger he faces because of the threats he has received from professional criminals.

10

7. As a result of these threats he claims to have spent thirteen months living in the mountains of the District of Shangha, approximately 140 kilometres from his own village attempting to evade the police and other agencies. He does not claim that anything happened to him in Shangha, but he left because he felt like a prisoner there. He claims that he cannot obtain state protection as it was the state in the form of the local administrators who fabricated the criminal case against him.

11

8. The applicant claims the he secured assistance from an Indian agent who assisted him in obtaining fake and forged documentation and arranging his passage out of Pakistan for 1,000,000 rupees (Pak). He travelled to Delhi where he spent one month from 7 th March to 9 th April, 2007. He then travelled through the United Kingdom where he spent approximately a day at Heathrow Airport, from which he travelled to Belfast. He then travelled by bus from Belfast to Dublin on 11 th April, 2007. He is unable to produce any travel documentation as he claims this was returned to the agent and also that he never personally presented any documentation to the immigration authorities. He did not apply for asylum in India or England because Pakistan had extradition treaties in force with both countries.

Refugee Applications Commissioner
12

9. On 12 th April, 2007, the applicant applied for asylum. He was interviewed by ORAC on 27 th July and in a report dated 15 th August, it was recommended that he not be declared a refugee. The applicant appealed this decision to the Tribunal.

Tribunal Decision
13

10. Following on oral hearing on 2 nd September, 2008, a decision of the Tribunal was given on 3 rd July, 2009. A summary of the applicant's claim in respect of political persecution is set out as follows:-

"He said that he had problems in his home country of Pakistan because of his membership of the Awami National Party (A.N.P.). He joined that party in either 2001 or 2002. He said that he was General Secretary of the party in a place called T. His duty was to promote the party or create awareness of the party in question. As part of raising awareness of the party he highlighted the injustices created by the military rule of President Musharraf. He recalls a meeting that took place on or about the 22 nd day of January, 2006. He made a speech at the meeting criticising the government but prior to the meeting he was warned by the police not to make the speech in question. After that, a First Information Report (police report) was lodged against him and he knew that the police wanted to arrest him. However, he said that he managed to escape to a village in another district. After that the applicant fled to a place (in a different province) which was approximately 140m from his own village…It appears as if he stayed there for a period of thirteen months. At the oral evidence stage he stated that the warrant issued for his arrest on 6 th day of March, 2007. It was then that he left Pakistan and went o India. He claims that the actual warrant for his arrest issued after the First Information Report had been filed. He stated, at interview, that the arrest warrant was issued pursuant to s. 204 of the Criminal Procedure Code and was issued on 13 th day of February, 2006. He said that he received a certified copy of that on 5 th day of April, 2007....He did not make any contact with any of the nongovernmental organisations (NGO'S). He said that nothing remarkable happened to him when he was in (that province). He left…because he felt like a prisoner there."

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11. The Tribunal examined the applicant's claims in relation to his membership and participation in the A.N.P. in depth. It noted that when asked as to when he joined the party, he could not give an exact date or year. The Tribunal examined the country of origin information concerning the A.N.P. which was downloaded from the internet under reference www.awaminationparty.org.contactusasp.. A number of facts concerning the party were the subject of questions in the course of the s. 11 interview and in oral evidence. The Tribunal concluded that the applicant had little basic knowledge of the A.N.P. and that it was highly unlikely that he was a member of the party or that he would be persecuted on account of his alleged membership. In particular, the Tribunal relied upon the...

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