Z (S) (Pakistan) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 31 January 2012
• Neutral Citation: [2012] IEHC 47
• Court: High Court
• Date: 31 January 2012

[2012] IEHC 47

THE HIGH COURT

[No. 512 J.R./2011]

Z (S) [Pakistan] v Min for Justice & Ors

BETWEEN/

SZ (PAKISTAN)

APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

REFUGEE ACT 1996 S5

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

K (T) v MIN FOR JUSTICE UNREP HOGAN 9.2.2011 2011/29/7926 2011 IEHC 99

F (ISO) & ORS v MIN FOR JUSTICE UNREP COOKE 17.12.2010 2010/19/4624 2010 IEHC 457

EFE & OLUKAYODE v MIN FOR JUSTICE & ORS (NO 2) 2011 2 IR 798 2011 2 ILRM 411 2011/20/4992 2011 IEHC 214

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

CONSTITUTION ART 40.3.2

ALBION PROPERTIES LTD v MOONBLAST LTD & KILLALEA 2012 1 ILRM 439 2011/2/485 2011 IEHC 107

EEC DIR 2005/85 ART 39

DIOUF v MINISTRE DU TRAVAIL 2012 1 CMLR 8

M (P) [BOTSWANA] v MIN FOR JUSTICE & ORS (NO 2) UNREP HOGAN 31.1.2012 2012 IEHC 34

L (S) [NIGERIA] v MIN FOR JUSTICE UNREP COOKE 6.10.2011 2011/31/8496 2011 IEHC 370

A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011/1/84 2011 IEHC 381

EEC DIR 2005/85 ART 3(3)

EEC DIR 2004/83 ART 15

IMMIGRATION ACT 1999 S3(1)

U (MA) & ORS v MIN FOR JUSTICE (NO 1) UNREP HOGAN 13.12.2010 2010/50/12672 2010 IEHC 492

EUROPEAN CONVENTION OF HUMAN RIGHTS ACT 2003 S5(2)

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

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

RADOVANOVIC v AUSTRIA 2005 41 EHRR 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8(2)

CONSTITUTION ART 41

IMMIGRATION ACT 1999 S3(11)

EEC DIR 2004/83 ART 4(1)

M (M) v MIN FOR JUSTICE & ORS (NO 1) UNREP HOGAN 18.5.2011 (EX TEMPORE)

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

M (M) v MIN FOR JUSTICE (NO 2) UNREP HOGAN 5.9.2011 2011/34/9374 2011 IEHC 346

IMMIGRATION LAW

Subsidiary protection

Deportation order - Fear of persecution - Religious grounds - Risk of serious harm - Right to effective remedy - Absence of appeal - Right of equivalence - Constitutionality of deportation order made under s 3 - Declaration of incompatibility - Proportionality - Right of family - Whether denied effective remedy - Whether violation of principle of equivalence - Whether s 3 incompatible with European Convention of Human Rights Act 2003 - Whether expulsion proportional - Whether fair balance between interests of family life and effective immigration control- Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701; K v Minister for Justice [2011] IEHC 99, (Unrep, Hogan, 9/2/2011); F(ISO) v Minister for Justice (No 2) [2010] IEHC 457, (Unrep, Cooke, 17/12/2010); Efe v Minister for Justice (No 2) [2011] IEHC 214, [2011] 2 IR 798; Albion Properties Ltd v Moonblast [2011] IEHC 107, (Unrep, Hogan J, 16/3/2011); Diouf v Ministre du Travail, de l'Emploi et de l'Immigration (Case C-69/10) (Unrep, 28/7/2011); M(P)(Botswana) v Minister for Justice [2012] IEHC 34, (Unrep, Hogan J, 31/1/2012); L(S)(Nigeria) v Minister for Justice [2011] IEHC 370, (Unrep, Cooke J, 6/10/2011); A(BJS)(Sierra Leone) v Minister for Justice [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011); U v Minister for Justice [2010] IEHC 492; Emre v Switzerland (No 1) (App No 42034/04), (Unrep, ECHR, 22/5/2008); Emre v Switzerland (No 2) (App No 5056/10), (Unrep, ECHR, 11/10/2011); Radovanovic v Austria [2004] ECHR 169, (2005) 41 EHRR 6; M(M) v Minister for Justice (No 1) (Unrep, Hogan J, ex tempore, 18/5/2011) and M(M) v Minister for Justice (No 2) [2011] IEHC 346, (Unrep, Hogan J, ) considered - Refugee Act 1996 (No 17), s 5 - Immigration Act 1999 (No 20), s 3 - European Convention on Human Rights Act 2003 (No 20) - Directive 2005/85/EC, art 39 - Directive 2004/83/EC, art 4(1) - European Convention on Human Rights, arts 8 and 13 - Constitution of Ireland 1937, Arts 40.3.2 and 41 - Application adjourned (2011/512JR - Hogan J - 31/1/2012) [2012] IEHC 47

Z(S) v Minister for Justice and Law Reform

1 1. 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 now applies 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.

2 2. On the 14 ^th November, 2011, I granted the applicant a stay on the deportation order pending the outcome of the leave application. This is, accordingly, the judgment on that leave application.

3 3. Before considering seriatim the individual grounds advanced, it is convenient here to set out the background facts to the present proceedings. 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 Sabah. 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.

4 4. It is contended that this killing was witnessed and that the applicant came to 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. The applicant states

5 5. 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.

6 6. 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.

7 7. 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.

8 8. 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 and that even though he was not in hiding, he had come to no harm for a period of some four years. This decision was never challenged.

9 9. The Minister rejected his subsequent application for subsidiary protection on 5 ^th April, 2011. While the applicant's credibility was not disputed, the Minister nevertheless concluded that he was not satisfied that:

"the applicant had demonstrated that he is without protection in Pakistan and I do not think that there are any substantial grounds for believing that the applicant would be at risk of serious harm by death penalty or execution, torture or inhuman or degrading treatment in Pakistan if he is returned there."

10 10. So far as the deportation decision is concerned, the file prepared by the Minister's officials considered the case in some detail. Having set out country of origin information in some detail, the conclusion was reached that the prohibition on refoulement contained in s. 5 of the Refugee Act 1996, would not be breached, mainly because there was a functioning police force in Pakistan and that State protection would be available to the applicant. The officials also noted that it was in the interests of the common good that the integrity of the asylum and immigration systems be preserved. While not, perhaps, expressly articulated, the unspoken premise of the Irish asylum and immigration system is that persons who fall in their application for asylum and international protection will, generally speaking, be deported absent special circumstances suggesting the contrary. This, in essence, the reason why the Minister made the decision to deport the applicant, as the accompanying note in hand on the deportation decision file from Mr. Michael Flynn, the Assistant Principal, makes clear.

11 11. We can proceed to examine the grounds advanced to challenge that decision.

The challenge to the subsidiary protection and deportation decisions

12 12. While the Refugee Appeal Tribunal decision rejected the applicant's asylum claim, it is important to note that the Tribunal member did not do so on grounds of credibility. The applicant claimed asylum on religious grounds because of his association with other individuals that were involved in an attack and the killing of a member of Sipah e Sahaba. He contended that he was assaulted and detained by members of the...