Z. H. and Others v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 30 January 2015 |
| Neutral Citation | [2015] IEHC 88 |
| Court | High Court |
| Date | 30 January 2015 |
[2015] IEHC 88
THE HIGH COURT
BETWEEN
AND
AND
Judicial Review – Order of Certiorari – Refugee Appeals Tribunal – Refugee Status – Extension of Time – Practice and Procedures – Persecution – Religion – Membership of a Particular Social Group
Facts: This case concerned a telescoped judicial review application for an order of certiorari quashing the decision of the Refugee Appeals Tribunal (RAT) refusing the applicants a recommendation of refugee status. The applicants were a Pakistani family unit comprising of a father, mother, and their four children. The applicants had claimed to have a well-founded fear of persecution by reason of their religion and owing to their membership of a particular social group. The applicants sought to challenge the decision of the RAT on the following grounds: (1) the Tribunal Member had erred by failing to make an assessment of the four minor applicant's claims which were to be considered as part of their mother's claim; (2) the Tribunal erred in failing to give the three eldest children an opportunity to be heard or seen before it and failed to consider the evidence of their attempted abduction or the attempts to bring them to the madrassa and train them in jihad; (3) the Tribunal failed to make an assessment on the intended forced marriages of the applicants' children and thus erred by considering that protection would be available to them if they had reported matters to the authorities; (4) the Tribunal Member's failure to take into account the minor applicants' claims meant that he could not have had regard to the "individual and personal circumstances of the protection applicants" in breach of the provisions of Reg. 5(1) and 5(2) of the EC (Eligibility for Protection) Regulations 2006; (5) the Tribunal Member erred in law by implying in his decision in respect of the second named applicant that it applied to the four minors without considering their particular circumstances and adjudicating separately in relation to their personal experience and circumstances; (6) the Tribunal Member erred in failing to make any determination with regard to the failure of the Refugee Applications Commissioner to supply the applicants with written documentation in a language they would reasonably be able to understand contrary to the provisions of Article 5 of Directive 2003/9/EC, the 'Reception Conditions Directive'; (7) the Tribunal Member erred in making adverse credibility findings where the Commissioner had made no adverse findings in relation to the applicants' identity and nationality; (8) the Tribunal Member's finding that their 'delay' in claiming asylum was not indicative of a person fleeing their country of origin was irrational and disproportionate insofar as their application for asylum was made one day after their arrival in the State and the fact that the applicants consistently asserted that they were following an agent; (9) the Tribunal Member erred in failing to make a finding with regard to the religion of the first and second named applicants, in the context of their claimed fear of persecution for religious reasons. Further, the applicants contend that the Tribunal failed to carry out a rational analysis of the country of origin and medicinal formation supplied; and (10) the Tribunal erred in his findings on the availability of state protection.
Held by Justice Barr, having regard to the seriousness of the allegations, the submissions presented and available evidence, that he would refuse to quash the decisions of the first named respondent dated 18th January, 2011. In respects of the complaint that the Tribunal did not hear evidence from any of the four children and did not give their position any separate consideration, it was accepted that no application was made by the applicants to have the children give evidence before the Tribunal. It was the opinion of the Court that the Tribunal did have adequate regard to the matters concerning the children. The Tribunal's findings were not vitiated by virtue of the fact that the children did not give evidence before it. It was further determined that the Tribunal had regard to the relevant evidence concerning the credibility of the story told by the first and second named applicants and found that they did not have a well-founded fear of persecution in their country of origin for a Convention reason. Thus, it was open to the Tribunal to make the finding that the children similarly did not have a well-founded fear of persecution for a Convention reason. The Court was further satisfied that the findings made by the Tribunal in relation to how the applicants travelled to Ireland and in particular the findings made concerning the production of passports at border controls were reasonable and based on the evidence. In respects of the adverse credibility finding, the Court was further satisfied that the tribunal had sufficient regard to the religious and medical issues which formed the core of the applicants' claims. Finally, the Court also determined that the Tribunal was correct in its decisions pertaining to internal relocation and the availability of State Protection. These, findings it was reasoned were open to the Tribunal based on the evidence before it.
1. This is a telescoped application for judicial review seeking, inter alia, an order of certiorari to quash two decisions of the Refugee Appeals Tribunal, dated 18 th January 2011, to refuse the applicants a recommendation of refugee status.
2. The applicants are a family unit comprising a father, mother, and their four children. The first named applicant in these proceedings is the minor applicants' father, and the husband of the second named applicant. The first named applicant made an application for asylum in his own right and it was considered and rejected on this basis. The second named applicant is the minor applicants' mother and next friend. The second named applicant consented to having her four children considered as part of her claim for asylum. It is noted that two of the minor applicants, F. H. and T. H., have now reached their majority.
3. The applicants sought an extension of time of approximately three weeks in which to initiate these proceedings. The respondents did not object to this, save insofar as the affidavits made any attempt to challenge the findings of the RAC in each case.
4. In the affidavit sworn by the first named applicant on 21 st February, 2011, he stated that when he received the decision of the first named applicant on 26 th January, 2011, he formed the opinion that he wished to bring judicial review proceedings. His former solicitors, the Refugee Legal Service, told him that if he wished to bring judicial review proceedings he would have to contact a private solicitor.
5. It took the first named applicant some time to find a private solicitor who was familiar with asylum law and was willing to take up the case on behalf of the first named applicant and his family. On 1 st February, 2011, the first named applicant made contact with his present solicitor, who agreed to take on the case. The proceedings were commenced by Notice of Motion dated 21 st February, 2011.
6. In the circumstances, I am satisfied that it is appropriate to extend the time for the bringing of the within proceedings up to and including 21 st February, 2011.
7. The applicants are a family from Lahore in Pakistan who arrived in the State on 2 nd February 2009. The applicants arrived by air transiting through Abu Dhabi having paid an agent some 4 million Pakistani Rupees (c. €30,000) to arrange their travel. The first named applicant was bom on 6 th August 1969 and is a Sunni Muslim. His first language is stated to be Punjabi but he can also speak English and he has had the benefit of both second and third level education. He refused to take part in an arranged marriage which his family had organised for him, and instead married the second named applicant on 4 th April 1993, despite his family's objections. He claims that his father is a strict Sunni Muslim who preaches in his own mosque and works for a religious organisation called Jamaat-ud-Dawa. The applicant claims that his father runs a madrassa, teaching Islamic theology, giving lessons on the Koran and training young people in jihad. The second named applicant was born on 18 th March 1974 and was raised as a Shi'a Muslim. She has also received twelve years formal education and owned and operated her own beauty parlour in Pakistan. She states that she converted to become a Sunni Muslim immediately after her marriage to the first named applicant in 1993. The applicants claim persecution by reason of their religion and owing to membership of a particular social group.
8. The content of the claimed fears of both the first and second named applicant are substantially the same, stemming as they do from the alleged failure of the first named applicant's family to accept the marriage between a Sunni and a Shi'a Muslim. In this regard, the applicants claim that the first named applicant's parents did not accept his new wife, and that tensions began on the birth of their first child on 14 th February 1994. After the child's birth the first named applicant's parents requested that he bring his son to see them but they refused to see the applicant's wife. The applicant refused on the basis that he knew that if he abandoned his wife his parents would either kill...
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