High Court of Ireland Decisions

Judgment Title: E. v MJELR & Anor

Neutral Citation: [2009] IEHC 603


High Court Record Number: 2007 1697 P

Date of Delivery: 21 December 2009

Court: High Court

Judgment of Mr. Justice Patrick McCarthy delivered on the 21st day of December, 2009.

1. By notice of motion dated the 17th December, 2007, the applicant seeks leave to apply for judicial review and in particular an order of certiorari to quash the decision of the second-named respondent made on 22nd November, 2007 whereby the Tribunal member affirmed the recommendation of the Refugee Applications Commissioner that the applicant be refused refugee status. The grounds upon which relief is sought are (i) that the Tribunal member failed to take into account relevant considerations, namely evidence and country of origin information that supported the applicant’s claim that he was persecuted by reason of his membership of the Hezb-i-Islami political organisation and (ii) that the Tribunal member erred in law in determining that the applicant did not face persecution for a Convention reason. The applicant also sought an extension of time.

Background
2. The applicant is a national of Afghanistan. He is of Pashtun ethnic origin and was born in the Balkh region of Northern Afghanistan on 26th April, 1977. He arrived in Ireland in 2004 and sought refugee status. He completed a questionnaire on 24th September 2004 in which he stated that he feared persecution on the grounds of race, membership of a particular social group and political opinion. He claimed that he fled persecution in Afghanistan when an attempt was made to forcibly marry his fiancée to the son of the commander of Jamiat-e-Islami who was also described as the commander of the region. The applicant claimed that he and his family were members of another political organisation, Hezb-i-Islami. “A fight occurred between the commander, his son, his body guards and members of the applicant’s family. The incident claimed four lives, including that of the applicant’s uncle, the son of the commander, his bodyguard and a friend of the applicant. Following this incident the applicant fled from Afghanistan as he feared the commander would return and there would be “what he described an armed battle in the village. The applicant’s cousins fled around the same time and were subsequently killed. Others members of his family fled to Iran.

3. On 11th April, 2005, the Refugee Applications Commissioner rejected the applicant’s claim for refugee status, stating that: “Taking into consideration the above analysis of the applicant’s claim, it is difficult to ascertain a Section 2 Convention link. It does not appear that the applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, rather his claim is based on a fear of returning to Afghanistan because he was in the company of people who were responsible for killing the commander’s son and bodyguard.” The applicant appealed to the Refugee Appeals Tribunal. On 22nd November, 2007, the Tribunal upheld the recommendation of the Refugee Applications Commissioner. The Tribunal member stated that he was satisfied as to the credibility of the applicant, who had presented a coherent and cogent account of the events leading up to his departure from Afghanistan. However, he was not satisfied that there was any nexus to the Convention in relation to the applicant’s fear of persecution if returned to his country of origin. The Tribunal member stated:

“The applicant stated at the outset that he feared persecution because of his political or perceived political opinions on the one hand, or because of his Pashtun background on the other. The applicant spoke of his membership of the Hezb-i-Islami in support of his contention that this is the reason for the persecution he fears.

Nonetheless, it is clear from the applicant’s own testimony, that the reason why he has encountered difficulties have not arisen because of his involvement with any particular political grouping (or membership of his tribe), but rather because of his engagement to his cousin in circumstances where the local commander wished for his son to marry the same girl. This fact arises not because of the applicant’s political beliefs or opinions, or even because of his ethnic background, but because of the fact that the girl in question happened to be his fiancée. Thus, the reason why he is liable to be persecuted was that he or his uncle didn’t want this to occur.

Similarly in relation to his ethnic background, although the applicant did not make a great play of this in the course of his evidence or in the submissions of his counsel, no information has been provided to substantiate the claim that he has been targeted for persecution because he is a Pashtun.

I therefore find as a fact that the reason for the persecution is because of the applicant’s personal circumstances in the context of his marital arrangement, which circumstances arise independently of political beliefs or affiliations or ethnic group membership. As these personal circumstances do not equate to the reasons set out in the Convention, the applicant cannot be a refugee if the reason for the persecution feared is primarily based on these circumstances. Whilst this finding may appear harsh in light of the applicant’s personal circumstances, and indeed the applicant may be in fear because of this issue, my jurisdiction is limited to the determination of whether the persecution feared is linked to one of the Convention reasons.”

Extension of time
5. The extension of time sought in this case is three days. The applicant received the decision of the Refugee Appeals Tribunal on Friday, 30th November, 2007. He contacted his solicitor by telephone on Monday 3rd December with respect to challenging the decision. A brief was prepared for counsel’s opinion on judicial review. This was sent on 5th December. Counsel’s opinion was furnished on 10th December. Counsel also requested further information about the applicant for the purposes of drafting proceedings. Draft proceedings were completed on 13th December and sent to the solicitor for the applicant. The applicant then had to travel to Dublin to swear the affidavit on 14th December. Counsel for the respondent did not oppose the application for an extension of time. I am satisfied that good and sufficient reasons have been shown for the delay, which is only three days outside the statutory time limit, and I accordingly grant the extension of time sought.

Submissions on behalf of the applicant
6. Counsel for the applicant, Colm O’Dwyer BL, submitted that the Tribunal member had failed to consider the political dimension of the applicant’s claim. On the applicant’s evidence, it was clear that the commander had mixed motives for his persecution of the applicant, and that the commander was in a position to persecute the applicant because of the applicant’s, and his family’s, political connections to Hezb-i-Islami. The commander had used his State authority to attack and persecute the applicant and members of his family. The Tribunal member had erred in law in finding that there was no Convention nexus to the accepted risk of persecution, having regard to the political dimension of the persecution. Country of origin information submitted by the applicant also supported the applicant’s claim that members of Hezb-i-Islami may be subject to persecution in Afghanistan. The applicant had given evidence of his and his family’s involvement in Hezb-i-Islami and this was not disputed by the Tribunal member. His questionnaire clearly detailed his personal involvement as having served in Hezb-i-Islami for four years. Prior to that, the applicant worked as a cook and servant with a commander of Hezb-i-Islami. All of his family members were attached to this organisation.

7. Mr. O’Dwyer referred to a large volume of country of origin information which was before the Tribunal member which detailed the control of regions by war lords and local commanders, and the risk to persons in conflict with power brokers. The country of origin information also made reference to difficulties faced by persons associated with Hezb-i-Islami. Mr. O’Dwyer accepted that a trigger for the persecution of the applicant may have been the applicant’s intended marriage to the girl whom the commander wished his son to marry, but that the applicant faced persecution because of his political association with Hezb-i-Islami. Mr. O’Dwyer pointed out that the test in refugee law is a forward-looking one, namely whether the applicant will face persecution if returned to Afghanistan. In addition he relied upon the reference by Professor Hathaway, the leading academic author, to all so-called “but far” test_

“The but for test requires only that a particular level of jeopardy faced by the applicant be linked to civil or political status, not that the whole of the risk be uniquely associated with that status.”

Submissions on behalf of the Respondent
9. Counsel for the respondent, Ms. Emily Farrell BL accepted as a matter of law that if the Tribunal member had found that there were mixed motives for the persecution, one having a Convention nexus, then the applicant would fall within the definition of a refugee. However, in her submission it was very clear that the Tribunal member had expressly found that this situation did not occur in this case. With regard to the risk posed by involvement with Hezb-i-Islami, Ms. Farrell submitted that the applicant and his family members had fled the region due to the dispute with the commander regarding the applicant’s marriage. In his questionnaire, the applicant had stated that prior to leaving Afghanistan, he was giving donations to Hezb-i-Islami but he had ceased to serve in the organisation. In his report, the Commissioner placed weight on the fact that the applicant did not refer to membership of Hezb-i-Islami as his reason for leaving Afghanistan.

10. Ms. Farrell also referred to country of origin information which was before the Tribunal. She referred in particular to the Danish fact-finding report which noted that the International Crisis Group was of the opinion that Hezb-i-Islami does not exist today as a political party but as a loose structure of warlords: the risk of persecution in Afghanistan depends on the history of the former member of Hezb-i-Islami. Ms. Farrell submitted that the commander would be in a position to abuse his authority in order to persecute the applicant for personal motives regardless of whether or not the applicant had any involvement in a political party. She submitted that there was no evidence to show that the applicant would obtain protection if he was not involved with Hezb-i-Islami and such evidence would be necessary before an applicant would fall within the parameters set out in R v. Immigration Appeal Tribunal and Another (ex parte Shah), [1999] 2 A.L. 629 and Islam v. Secretary of State for the Home Department. On all of the information before the Tribunal member, it was entirely within his jurisdiction to find that the applicant was being targeted by the commander solely by reason of his relationship with his fiancé and the gun fight which ended with the commander’s son being killed. The involvement of the applicant with Hezb-i-Islami was entirely irrelevant to the question of whether or not he was at risk of persecution.

11. Ms. Farrell submitted that the Tribunal member was satisfied on the basis of all the material before it that the sole reason for the persecution was because of the applicant’s personal situation regarding his engagement and has expressly excluded the finding that the applicant was targeted because of his membership or involvement with a political party or membership of his tribe. Ms. Farrell referred to the judgment of Lord Hoffman in Shah and submitted that there was no evidence in the present case, equivalent to the evidence in Shah, that the State would not assist the applicant because he is involved with Hezb-i-Islami. Country of origin information supported the respondent in this regard. The reasons for the persecution and the absence of State protection were to the effect that such was not due to his involvement with the political party. The absence of State protection can only be relevant if it is connected to a Convention reason where the persecution itself does not have a Convention nexus. The applicant was not left without a remedy: he could apply to the Minister for subsidiary protection. The question before this Court was whether the Tribunal member erred in law in finding that the applicant was not within the section 2 definition of a refugee. Ms. Farrell relied upon the decision of (Frank) Clarke J. in Lelimo v. Minister for Justice, Equality and Law Reform I [2004] 27 R 178 in support of her argument that the Tribunal member had correctly applied s. 2 of the Refugee Act 1996. In her submission, the fact that the agent of persecution was in a position of power or tantamount to the State was not relevant to the question of whether there was a Convention nexus. The Tribunal member had had regard to all the relevant matters in so far as the Tribunal member specifically decided that the reason for the persecution was not discriminatory and was personal. Ms Farrell also referred to the applicant’s own evidence that his cousins had previously worked for Hezb-i-Islami and then for the government in support of her argument that members of Hezb-i-Islami were not generally at risk of persecution in Afghanistan.

The relevant law
12. This case involves an examination of first principles of asylum law. The definition of a refugee is set out in s. 2 of the Refugee Act 1996, which states:-

“In this Act "a refugee" means a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country…”

"By including in its operative provisions the requirement that a refugee fear persecution, the Convention limits its humanitarian scope and does not afford universal protection to asylum seekers. No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. And by incorporating the five Convention reasons the Convention plainly contemplates that there will even be persons fearing persecution who will not be able to gain asylum as refugees.”

“From the facts outlined by O’Sullivan J. [in the decision granting leave], it is clear that there are significant grounds for believing that the applicant may suffer harm if she returns to South Africa. Unfortunately she did not qualify for refugee status because, in the words of the Refugee Appeals Tribunal, “unfortunately, the assault carried out on the applicant does not amount to persecution for any reason contemplated by s. 2 of the Refugee Act, 1996 (as amended).” The undoubtedly correct reasoning behind that decision was that the motivation for the treatment of the applicant was unconnected with a reason contemplated by s. 2 of the Refugee Act.”

“What is the reason for the persecution which the appellants fear? Here it is important to notice that it is made up of two elements. First, there is the threat of violence to Mrs. Islam by her husband and his political friends and to Mrs. Shah by her husband. This is a personal affair, directed against them as individuals. Secondly, there is the inability or unwillingness of the state to do anything to protect them. There is nothing personal about this. The evidence was that the state would not assist them because they were women. It denied them a protection against violence which it would have given to men. These two elements have to be combined to constitute persecution within the meaning of the Convention. As the Gender Guidelines for the Determination of Asylum Claims in the U.K. (published by the Refugee Women's Legal Group in July 1998) succinctly puts it (at p. 5): "Persecution = Serious Harm + The Failure of State Protection."

Answers to questions about causation will often differ according to the context in which the question is asked: see Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. [1999] 2 AC 22. Suppose oneself in Germany in 1935. There is discrimination against Jews in general, but not all Jews are persecuted. Those who conform to the discriminatory laws, wear yellow stars out of doors and so forth can go about their ordinary business. But those who contravene the racial laws are persecuted. Are they being persecuted on grounds of race? In my opinion, they plainly are. It is therefore a fallacy to say that because not all members of a class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class. Or to come nearer to the facts of the present case, suppose that the Nazi government in those early days did not actively organise violence against Jews, but pursued a policy of not giving any protection to Jews subjected to violence by neighbours. A Jewish shopkeeper is attacked by a gang organised by an Aryan competitor who smash his shop, beat him up and threaten to do it again if he remains in business. The competitor and his gang are motivated by business rivalry and a desire to settle old personal scores, but they would not have done what they did unless they knew that the authorities would allow them to act [my emphasis throughout] with impunity. And the ground upon which they enjoyed impunity was that the victim was a Jew. Is he being persecuted on grounds of race? Again, in my opinion, he is. An essential element in the persecution, the failure of the authorities to provide protection, is based upon race. It is true that one answer to the question "Why was he attacked?" would be "because a competitor wanted to drive him out of business." But another answer, and in my view the right answer in the context of the Convention, would be "he was attacked by a competitor who knew that he would receive no protection because he was a Jew."

In the case of Mrs. Islam, the legal and social conditions which according to the evidence existed in Pakistan and which left her unprotected against violence by men were discriminatory against women. For the purposes of the Convention, this discrimination was the critical element in the persecution. In my opinion, this means that she feared persecution because she was a woman. There was no need to construct a more restricted social group simply for the purpose of satisfying the causal connection which the Convention requires.

Mr. Blake, in supporting this argument, suggested that the requirement of causation could be satisfied by applying a "but for" test. If they would not have feared persecution but for the fact that they were women, then they feared persecution for reason of being women. I think that this goes from overcomplication to oversimplification. Once one has established the context in which a causal question is being asked, the answer involves the application of common sense notions rather than mechanical rules. I can think of cases in which a "but for" test would be satisfied but common sense would reject the conclusion that the persecution was for reasons of sex. Assume that during a time of civil unrest, women are particularly vulnerable to attack by marauding men, because the attacks are sexually motivated or because they are thought weaker and less able to defend themselves. The government is unable to protect them, not because of any discrimination but simply because its writ does not run in that part of the country. It is unable to protect men either. It may be true to say women would not fear attack but for the fact that they were women. But I do not think that they would be regarded as subject to persecution within the meaning of the Convention. The necessary element of discrimination is lacking: compare Gomez v. Immigration and Naturalization Service, 947 F.2d 660.

I am conscious, as the example which I have just given will suggest, that there are much more difficult cases in which the officers of the state neither act as the agents of discriminatory persecution nor, on the basis of a discriminatory policy, allow individuals to inflict persecution with impunity. In countries in which the power of the state is weak, there may be intermediate cases in which groups of people have power in particular areas to persecute others on a discriminatory basis and the state, on account of lack of resources or political will and without its agents applying any discriminatory policy of their own, is unable or unwilling to protect them. I do not intend to lay down any rule for such cases. They have to be considered by adjudicators on a case by case basis as they arise. The distinguishing feature of the present case is the evidence of institutionalised discrimination against women by the police, the courts and the legal system, the central organs of the state.”

17. The court must be mindful that the decision-maker’s assessment should be an objective one and the goal is to determine the real reason for the persecution. It is well-established, and indeed was accepted by counsel for the respondents, that where there are mixed reasons for the persecution, it is sufficient that one of them relates to a Convention ground.

18. Professor Hathaway, has summarised the position relating to the causal nexus in asylum law in the following terms:-

“Most fundamentally, both the language and the context of the Refugee Convention make clear that the required causal nexus may be established by evidence of the reason for the threat or infliction of harm, for the withholding of State protection, or simply the predicament faced (whether intentional or not). A Convention ground need not be the sole, or even the dominant, cause of the risk of being persecuted, but it must be a contributing cause to the risk. The same test should be applied whether the risk is experienced individually or as part of a group, and whether in war or in peace.” (Hathaway, “The Causal Nexus in International Refugee Law” (2001-2002) 23 Michigan Journal of International Law 207, at 209).

(i) Not all fears of persecution will entitle an applicant to a declaration of refugee status, pursuant to s. 2 of the Refugee Act, 1996 (as amended). It must be established that an effective cause of the persecution, or the absence of State protection, is linked to one of the five grounds covered by the Convention. That is to say, that the risk of persecution possesses a discriminatory element.

(ii) The decision-maker must objectively assess the reasons for the persecution feared. The decision-maker should consider the reason in the mind of the perpetrator for inflicting the persecutory treatment. He will then ask if that is the real reason or if there is some other effective reason.

(iii) A similar analysis will be carried out where the discriminatory element is claimed in respect of the absence or failure of State protection. The decision-maker will objectively assess the effective reason why State protection is not available to the applicant.

(iv) Where there are mixed reasons for the persecution, it is sufficient that one of those reasons relates to a Convention ground. The trigger for the persecution may lack a Convention nexus, but if one of the effective reasons for the persecution is Convention-related (for example, where State protection is not forthcoming because of a discriminatory policy of the State), that is sufficient.

(v) It goes without saying that, in conducting this objective assessment of whether a Convention nexus exists, in either context, the decision-maker must have regard to relevant country of origin information (Horvath v. Secretary of State [1999] I.N.L.R. at 17, Pearl J.)

“It is not desirable that a decision be parsed and analysed word for word in order to some possible infelicity in the choice of words and phrases… the whole of the decision must be read and considered in order to reach a view as to whether or not, when the decision is read in its entirety and considered as a whole, there is a reasonable basis for the decision maker reaching the conclusion…”

“The Court must have regard to the decision in the round, to the real capacity of the alleged error to have affected the correctness of the process by which the decision was reached, and also to the discretionary nature of judicial review. In respect of the latter, it seems to follow that even where the court may be satisfied that there was some error in the process it can refuse relief. Where it is also satisfied that such errors as did occur did not go to the heart of the decision, such as would render the decision unlawful.”

22. The court has considered fully all of the papers submitted in the course of the present application for leave to apply for an order of certiorari. The court has further had regard to all of the submissions made by counsel on behalf of the parties, including those made in writing and to the case law cited therein.

23. I do not think that there is any real doubt but that the Tribunal member found as a fact that the reason for persecution is because of the applicant’s personal circumstances in the context of his marital arrangements and that they arose independently of politicial beliefs or ethnicity and not for a Convention reason. He went on to say that the persecution feared was “primarially based on these circumstances”.

24. I stress the importance of not parsing and analysing decisions out of context (or extracts therefrom) in cases of this kind because it seems to me that what is sought to be done to is infer that there was more than one reason for persecution and, in particular one where a convention nexus existed because the word “primarily” was used: it seems to me that if one were to reach this conclusion, one would would have to take that word wholly out of context. I have set out what I consider to be the relevant extracts from the Tribunal’s decision at para. 3 above, but I think it is worth repeating the conclusion of the Tribunal member where he found as a fact:-

“…that the reason for the persecution is because of the applicant’s personal circumstances in the context of his marital arrangements, which circumstances arise independently of polictical beliefs or affiliation or ethnic group or membership. As these circumstances do not equate to the reasons set out in the Convention, the applicant cannot be a refugee”.

“… in a nutshell… that he (the Tribunal member) has not really considered the political demension of the case and we would submit on his evidence there clearly is an aspect of mixed motive in this case, that the commander, while he may have had personal motivation to get the applicant, as such, or to persecute the applicant, that there was a connection in the way he was able to do that with the aplicant’s political beliefs and the political beliefs of his family and their connection to the political group and that the commander clearly used his state authority to attack and persecute the applicant and members of his family.”

25. I am accordingly not satisfied that the applicant has demonstrated substantial grounds in respect of this aspect of the Tribunal members decision: with respect to the issue of whether or not involvement with Hezb-I-Islami or Pashtu origin the Tribunal records explicitly that on the applicant’s own testimony he encountered difficulties because of the marriage issue. The Tribunal member further concluded that no information had been provided to substantiate the applicant’s claim that he had been targeted for persecution because of the format. As facts, accordingly, he held against the applicant on these two grounds and this he was entitled to do on the evidence.

26. I therefore refuse leave in this case.