ZM v The minister for Justice
| Jurisdiction | Ireland |
| Judge | Ms Justice Tara Burns |
| Judgment Date | 25 January 2021 |
| Neutral Citation | [2021] IEHC 62 |
| Docket Number | Record No: 2019/940 JR |
| Court | High Court |
| Date | 25 January 2021 |
[2021] IEHC 62
Tara Burns
Record No: 2019/940 JR
THE HIGH COURT
JUDICIAL REVIEW
The Applicant seeks an order of Certiorari of the decision of the First Respondent made pursuant to s. 3(11) of the Immigration Act 1999, as amended, refusing to revoke a Deportation Order issued against him on 26 August 2016.
The Applicant is a national of Pakistan who arrived in the State on 23 September 2008. He applied to the Office of the Refugee Applications Commissioner (hereinafter referred to as “ORAC”) for refugee status but was refused such status on 7 April 2009. His appeal to the Refugee Appeals Tribunal (hereinafter referred to as “RAT”) was refused on 14 September 2009. A challenge was not taken by the Applicant to the determination of RAT.
The Applicant's claim for refugee status was based on an asserted family dispute with his cousin over land in his hometown. He claimed that his brother was murdered on 16 April 1994 and his father was murdered on 26 March 1997. The Applicant claimed he was wrongly charged with the murder of a friend of his cousin and spent 30 months in prison between 1998 and 2001, after which he was released on bail pending trial. After his release, the Applicant claimed that he moved with his wife and children to his in-laws home elsewhere in Pakistan until 2005 when he left that jurisdiction leaving his wife and children behind him. Prior to leaving that jurisdiction and after his release from jail, he claimed that he returned to his home village in 2003 for a wedding. On that occasion, the car in which he was travelling was shot at and his brother in law was injured. He claimed he returned home in 2005 to participate in local elections and was again shot at. He asserted that the murder investigation against him has been ongoing since 2001 and the family of the deceased have gathered witnesses to testify against him even though he was not present at the altercation where the man was killed. The Applicant's claim for protection was he feared that if returned to Pakistan he would be arrested and given the death penalty for a crime he did not commit.
The documents supplied to ORAC for the purpose of the asylum claim included fax copies of FIR reports where the murdered man had been named by the Applicant in relation to the land dispute. The Applicant asserted that it was because of this FIR that the family of the murdered man named the Applicant as his assailant.
ORAC assessed the Applicant's claim in the following manner:-
“The applicant claims that he was brought to court each month of his incarceration but made no mention of a prosecution when asked. He was asked if the case continued after his release. He asserted that he was on bail. It was put to the applicant that he was accused of murder, an extremely serious crime and was again asked for the details of the case in the four years from 2001 to 2005. He failed to answer this question directly and stated that shots were fired at him during this time. He was asked why he had not been charged or prosecuted during the seven years from his arrest to the time of his departure from Pakistan. He claimed that this was common and often the judges or solicitors were on holiday. It was queried with the applicant as to why he left in 2005, considering the case was ongoing for seven years at that stage, and why he fled, therefore projecting a guilty image rather than fighting his case in a court of law. He claimed that there was a Chief Justice in Pakistan who was sentencing people within forty days and reiterated that they had witnesses against him. The applicant was asked why he, or a member of his family, did not gather witnesses to counteract these witnesses. He asserted that a person who had been injured in the 1998 fight had been coerced by the deceased man's family to bear witness against him.”
ORAC found there was a number of credibility issues with the Applicant's evidence: he was vague on the purported court case against him; and he did not supply any verifiable documents that such a case was ongoing. ORAC found that it did not seem plausible that the case was ongoing for seven years at the time he left Pakistan if there was so much evidence against him, yet no verdict had been reached during such a lengthy period of time. ORAC also found that if the Applicant really believed that he would be wrongly sentenced to death and had been remanded for thirty months between 1998 and 2001, it did not seem logical that he would wait four years after his release before leaving the country. It also found that the Applicant had successfully internally relocated within Pakistan when he lived with his in-laws. ORAC ultimately found the Applicant had not established a well-founded fear of persecution.
The decision, on appeal, of RAT was that the Applicant had not established a link with any of the Convention grounds for any persecution he may have suffered, nor was the persecution element made out. The Tribunal specifically rejected that he was persecuted for reasons of his political opinion: his prosecution, if true, was motivated from personal revenge arising from a family row based on financial interest. RAT further found that there was nothing to suggest that his prosecution, if accepted as genuine, was politically selective, or that he was denied basic standards of fairness or that if convicted he would receive a differential or disproportionate punishment, particularly given his evidence at the hearing that he had been afforded legal representation and his lawyer had been allowed to cross-examine witnesses and that he had been released on bail in 2001. He also stated that three of the attackers who allegedly killed his brother had themselves been arrested and detained for some months before being released on bail. The Applicant had not demonstrated that the alleged prosecution in Pakistan resulted in serious violations of his human rights for any Convention reason, and there was no indication that the Pakistani authorities wished to bring false charges against the Applicant or deny him fair procedures for political reasons.
RAT went on to find that the Applicant's claim was lacking in credibility in several material respects. Of particular relevance to the instant case was RAT's finding that the Applicant's description of the ongoing trial procedures in Pakistan were implausible, incoherent and vague. All of the credibility findings made by ORAC were found to be valid. RAT also found the Applicant's failure to claim asylum in the first third country he transited, having transited through several, undermined the well-foundedness of his alleged fear of persecution. The conclusion drawn by RAT was that the Applicant's evidence was not credible.
RAT proceeded to find that if it was wrong about the credibility findings, it was satisfied that internal relocation was available to the Applicant. The Tribunal stated that where a person can access protection in another part of the country it cannot be said that there is a failure of state protection. As already noted, the decision of RAT was not challenged by the Applicant.
On 5 November 2009, the First Respondent notified the Applicant of his intention to issue him with a Deportation Order. On 26 November 2009, the Applicant made an application for subsidiary protection and an application for leave to remain within the State. Representations were also made by the Applicant in respect of the proposed Deportation Order on 26 November 2009.
The First Respondent deemed the Applicant's application for subsidiary protection to be withdrawn and therefore refused this application on 26 November 2014 after the Applicant had moved from the address where he had indicated, by compulsion, that he was residing at: correspondence issued to the Applicant between October 2013 and November 2014 had been returned marked “gone away”.
It transpired that the Applicant had left the State in early June 2012 and was residing in the United Kingdom. He has averred in an affidavit that he went to the United Kingdom to be with his sister-in-law who was diagnosed with cancer. She died on 5 June 2012. He then remained in the United Kingdom to assist his brother with the couple's four young children.
The Applicant was detected by the authorities in the United Kingdom as being unlawfully present in that jurisdiction. A request was made by the UK authorities on 12 February 2016 to “take back” the Applicant pursuant to the Dublin III Regulation. On the 25 May 2016 the Applicant was transferred from the United Kingdom to this State under the Dublin III Regulation.
On 26 August 2016, a Deportation Order issued against the Applicant. The Examination of File document reflects that refoulement was considered for the purposes of section 5 of the Refugee Act 1996. It states:-
“It was submitted on behalf of [the Applicant] in representations dated the 26th November 2009 that if returned to Pakistan he would continue to experience the same problems which he had previously experienced. It was submitted that he fears arrest and imprisonment if he is returned to Pakistan.
[The Applicant] made an application for asylum and subsidiary protection as set out above… [The Applicant] was refused a declaration of refugee status for failure to establish a well founded fear of persecution. Together with a failure to establish a convention nexus, the material elements of [the Applicant's] claim were found to be lacking in credibility. No new claimed fear has been made by [the Applicant] and nothing has been submitted which would suggest that the finding of ORAC and RAT should be departed...
To continue reading
Request your trial