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Cite as: [2012] IEHC 284
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Judgment Title: T.M & Ors -v- Refugee Appeals Tribunal & Ors Neutral Citation: [2012] IEHC 284 High Court Record Number: 2011 259JR Date of Delivery: 17/07/2012 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 284 THE HIGH COURT JUDICIAL REVIEW [2011 No. 259 J.R.] IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), IN THE MATTER OF IMMIGRATION ACT 1999, AND IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1) BETWEEN T. M., R. T., M.H. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND R. T.), M.A (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND R.T.), M.H.A. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND R.T. ), Z.T. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND R.T. ) APPLICANTS AND
REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND LAW REFORM AND ATTORNEY GENERAL IRELAND RESPONDENTS
JUDGMENT of Mr. Justice McDermott delivered on the 17th day of July, 2012 1. Introduction 1.2 Leave to apply for judicial review of these decisions was granted by Hogan J., by order made the 24th January, 2012, on three grounds, two of which were:-
(2) The Tribunal erred in law and in fact in questioning the authenticity of the First Information Report on the basis of a credibility finding made in respect of the first named applicant’s evidence regarding the assault by members of Sipah E Sahaba (a militant religious group) on his family. The first two grounds arise in the following circumstances. 2. Background 2.2 T.M. a Sunni Muslim was a member of the Sunni Tehreek a politico religious group that was part of the Sunni Muslim Barelvi sect. He was secretary of his local mosque and a prominent member of his community. He was a jeweller and operated a successful business. A rival Muslim sect, the Sipah E Sahaba, now known as the Millat E Islamia, operated from a local mosque and was very violently opposed to certain religious and cultural practices favoured by T.M.’s sect. Though tensions existed for a number of years between the two sects, they erupted in violence at Faisalabad on the 27th February, 2010. 2.3 On that date T.M. was amongst the leaders of a religious procession celebrating the birth of the Prophet. As the procession passed by the mosque controlled by Sipah E Sahaba it was fired upon by members of that sect. A number of people in the procession were badly beaten and one child was reported to have died. As a result of the injuries sustained in the attack T.M. was taken to the casualty department of the local hospital where he was treated. He was discharged the following morning, the 28th February, 2010. 2.4 This incident has been well documented in media reports and a report designated a First Information Report (FIR) was prepared by the police. A number of police officers had accompanied the procession past the mosque from which the shots were fired. This report described how stones were initially thrown at the procession and then thrown back at the mosque in retaliation. Thousands walked in the procession. The walkers turned upon the police as they were dissatisfied with the police response to the shooting incident. The local police station was attacked and various vehicles were burnt and the outer wall of the police station was demolished. The rioters were dispersed with tear gas. They then entered a rival leader’s house and set it on fire. The house was looted. Shots were fired and stones thrown at the police from the mosque also. It is noted in the report that T.M. was taken to hospital as a result of injuries sustained. 2.5 On the 28th February, 2010, T.M. claims that he attended at his jewellers shop in the town which was then raided by six armed men who held him at gun point and robbed his safe of gold and cash. He was then forced to travel to his family home with this armed group. Upon arrival they terrorised his wife and children, threatening to kill them and assaulting them. He was robbed of further cash and the family was then locked into a room as the raiders searched the house. They told him that this was happening to him because he was secretary of his mosque and had been part of the procession in front of their mosque from which slogans had been chanted and stones thrown. The telephone wires to the house were cut. His household goods were scattered around the house. After two or three hours they freed themselves and the police were summoned. T.M. made a complaint to the police which was available to the first named respondent and to the court in the form of a further FIR. 2.6 Two aspects of this report which is dated the 28th February, 2010, became of importance to the applications for asylum and the grounds of this application for judicial review. Firstly, the report is said to have been made at 2.00pm on 28th February, 2010. Secondly, there is no specific allegation contained in the report that any of the children were individually and/or physically assaulted by the raiders though the parents later alleged that this was so. These two matters became relevant to the assessment of T.M.’s credibility when his case came to be considered by the first named respondent. I will return to this later. 2.7 After the events of the 27th and 28th February T.M. and his family fled immediately to his wife’s uncle’s home. They remained there for some nine or ten days. They then left Pakistan via Lahore. They arrived in Ireland on 9th March, 2010, having flown via Abu Dhabi. They initially stayed with a brother of the second named applicant. They entered the country lawfully on the basis of visas that had been obtained from the Irish embassy in Pakistan. They had previously visited Ireland on holidays in 2008. They intended to do so again in 2010 following the celebration of the Muslim festival in respect of which the procession of the 27th February, 2010, had been organised namely, Eid - Milad – un – Nabi (Festival of the Birth of the Prophet). 2.8 It is clear and T.M. and his wife accept that they had no intention of claiming asylum on their arrival at Dublin airport on the 9th March, 2010. Though their journey to Ireland had been preceded by dramatic and traumatic circumstances, as described by them in their applications, nevertheless they decided that they would travel to Ireland for the holiday as previously planned. 2.9 News reached T.M. that his shop had been attacked and burnt on the 15th March, 2010, by members of the rival sect. He was also aware that threats to him and his family were continuing and that dire consequences would follow if he and his family returned home. He was made aware that his wife’s uncle who had accommodated him and his family before they left Pakistan had been threatened by members of the rival sect. 2.10 A further FIR was filed in relation to the attack on his business premises on the 15th March, 2010. A neighbour had found that “all the doors of the house belonging to T.M. were opened and lights were on - a smell of fire on a small scale was perceived…the furniture looked to be burnt”. It goes on to state that further information indicated that persons belonging to Sipah E Sahaba entered the house and remained for approximately two hours and when leaving loaded household articles into a car. 2.11 Having considered the events that had occurred after they left Pakistan, T.M. and R.T. decided to apply for asylum on behalf of themselves and their children. The applications proceeded separately in that T.M. made one application and his wife, R.T., made an application on her own behalf and applications on behalf of the minor applicants M.H, M.A., M.HA.and Z.T. The applications were made on the 13th April, 2010. The Commissioner recommended that the applications be refused in June, 2010. The recommendations of the Commissioner were appealed to the Tribunal. An oral hearing took place on the 17th November, 2010. In a series of decisions dated 24th January, 2011, the Tribunal affirmed the recommendations of the Commissioner. The applicants were furnished with notice of these decisions on the 7th March, 2011. 3. The Tribunal Decisions 3.2 The Tribunal accepted that there had been widespread disturbances in Faisalabad on the 27th February, 2010, arising from the procession that took place to celebrate Eid-Milad-Un-Nabi. The tribunal member emphasised that the main reason he came to the conclusion that the claims were not valid pursuant to s. 2 of the Refugee Act 1996, related to the protection that was available for all of the applicants within Pakistan. He noted that even if he were to accept T.M.’s evidence, there was no doubt that protection was available for him and his family from the authorities within Pakistan. That aspect of the Tribunal’s determination is not challenged in these proceedings. The grounds upon which leave to apply for judicial review was granted are quite narrow and relate to the two issues of credibility, to which I earlier referred. 3.3 It is important to recall that the court has a limited function in relation to issues of credibility as a ground for an application for judicial review. The principles applicable to this type of case have been helpfully summarised by Cooke J. in I.R. v. the Minister for Justice, Equality and Law Reform and the Refugee Appeals Tribunal [2009] IEHC 353. It is not the court’s function to reassess credibility or to substitute its own view for that of the decision-maker. Its function is to scrutinise the decision in order to assess whether the process by which that decision was reached is legally sound and not vitiated by any material error of law. This judicial review application turns entirely upon the assessment of the credibility of the written and oral accounts by the applicants of their experiences in Pakistan. The decision-maker, for his part, had to consider whether the applicants had demonstrated that they had a genuine fear of persecution for reasons of religion. He then had to determine whether that subjective fear was objectively justified or reasonable and, therefore, well founded. I consider that the following extract from paragraph 11 of the judgment of Cooke J. provides useful guidance as to how the credibility grounds can be considered in this application:-
5. A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding. 6. The reasons must relate to the substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given. 7. A mistake as to one or even more facts will not necessarily vitiate a conclusion as to lack of credibility provided the conclusion is tenably sustained by other correct facts. Nevertheless, an adverse finding based on a single fact will not necessarily justify a denial of credibility generally to the claim. 8. When subjected to judicial review, a decision on credibility must be read as a whole and the Court should be wary of attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination in disregard of the cumulative impression made upon the decision-maker especially where the conclusion takes particular account of the demeanour and reaction of an applicant when testifying in person.” 3.5 The Tribunal concluded as follows in respect of this matter:-
3.7 The note of R.T.’s evidence suggests that she did not know what time the attack occurred at her home, but that it was in the afternoon. 3.8 Thus, it is clear from the note of evidence that neither T.M. nor R.T. gave evidence that the events at the family home took place at around 4.00 to 5.00 o’clock in the afternoon. Counsel on behalf of the respondents contended that the Tribunal ruling acknowledged that T.M. had stated that the police came to his house between 4.00 and 5.00pm on the 28th February, 2010, and that the note of the evidence tends to show the accuracy of the Tribunal’s note of evidence in this regard. It is clear from the note of evidence and it is the applicants’ case that the police responded to the call for assistance at or about 4.00 to 5.00pm. However, it is also clear from the note that T.M. gave an account of the incidents that continued from a period shortly after 11.00am until some time in the mid afternoon of the 28th February. To that extent the Tribunal finding misstates the evidence given by T.M. and R.T. However, the unresolved discrepancy remained between the fact that the police recorded the making of the complaint at 2.00pm, whereas the T.M. maintains that it was made to them between 4.00 and 5.00pm when they attended at the scene. 3.9 The second factual matter related to the evidence given in respect of the treatment of his family by those who raided his home on the 28th February. The Tribunal notes that T.M. stated in evidence that his children were assaulted by members of Sipah E Sahaba at the house. The Tribunal thought it “significant” that there was no reference in the FIR of any complaint to the police of any assaults on the children. He accepted that T.M. stated that his children were “terrified” by the attacks but noted that there was no direct reference to any physical attack on the children. This was deemed to be a significant item of credibility that undermined the authenticity of the description of events contained in the FIR that had been presented to the Tribunal. 3.10 The events described by T.M. in the FIR dated the 28th February, 2010, of the raid on his shop and his home, if true, could only be regarded as terrifying for him, his wife and his children. The raiders were armed, made death threats against him, his wife and his children, robbed him and forced him and his family members into a room and locked it. They remained locked in the room for two to three hours. The decision as to the credibility of the account given by T.M. and his wife clearly focused on the absence of a specific allegation that one or all of the children were individually assaulted by the raiders. 3.11 In his s. 11 interview, T.M. indicated that his children had been beaten “so much that they were really terrified”. He acknowledged that he had not reported that to the police. In her s. 11 interview, R.T. as part of her account of the incident at the house stated “they came to our house also and assaulted us and locked us in a room”. This was repeated when a s. 11 interview was conducted with R.T. in respect of the children. In the s. 11 interview concerning M.A., R.T. confirmed that “M.A. and his older brother M.H. had been subjected to a slight beating but nothing serious”. In the s. 11 interview concerning M.HA., she said “when they came the second time they beat the children slightly”. She also said “the family were beaten” on that day. This was repeated in the s. 11 interview in respect of Z.T. The absence of a specific allegation that the children were beaten from the FIR was put to T.M. in the course of the oral hearing. He explained he had not put it in the report because he was scared for the children. It is clear from the interviews that T.M. and R.T. complained that they had been threatened by the raiders about going to the police. 3.12 Counsel on behalf of the respondent submits that the Tribunal was entitled to have regard to this omission from FIR. Clearly the report did not contain any reference to a specific physical assault on any of the children. An explanation was offered for this by T.M. in evidence. It was submitted that it was a matter for the decision-maker to assess credibility on the basis of the materials and evidence presented and that there was nothing to indicate that the decision in this case had been made unfairly or without proper consideration of the evidence adduced. It is submitted that this finding was made entirely within jurisdiction. It was also submitted that this finding cannot be viewed in isolation but as part of the overall finding of the Tribunal. 3.13 Counsel for the applicants submitted that the conclusions reached by the first named respondent in respect of T.M.’s and R.T.’s credibility were so unreasonable as to be contrary to common sense, and that the decision of the Tribunal was disproportionate. 4. Conclusion 4.2 The Tribunal found that it had not been furnished with any convincing information that the police insofar as this complaint was concerned, failed to act or were in any way complicit with members of Sipah E Sahaba. The Tribunal was also satisfied from country of origin information that active steps were being taken by the government to curb terrorism in general in Pakistan and specifically in relation to Sipah E Sahaba. In this context the main body of the decision made by the Tribunal centres on the availability of state protection. He noted that it was well established that the primary recourse for protection must be to one’s home country. The first named respondent could not see any reason as to why the applicants could not have remained on in Pakistan and sought the protection of the police and ultimately the courts to secure their safety into the future. This was in accordance with principles set out in para. 100 of the UNHCR Handbook in relation to state protection and the application of Article 2 of the European Communities (Eligibility for Protection) Regulations 2006, which stated that:-
4.4 The Tribunal also held as a corollary to that finding that the question of internal relocation within Pakistan also arose. He noted that Pakistan is a huge country with a population of over 170 million people. The Tribunal found it difficult to accept that the family could not have relocated somewhere else in Pakistan. This option, the Tribunal concluded, drew into question “the well-foundedness” of the applicants’ fear should they return to Pakistan. 4.5 It is clear from the evidence that T.M. had effectively invoked the protection of his home government in Pakistan by making a complaint to the local police in respect of the offences committed against him. There was no evidence that this complaint was not acted upon by the police. Moreover, the Tribunal was satisfied from country of origin information that active steps were being and had been taken by the government in Pakistan to curb terrorism in Pakistan, and specifically the activities of Sipah E Sahaba. The Tribunal was, therefore, entitled to rely upon this fact as incompatible with the applicants’ claim. It follows that the Tribunal was entitled to conclude that the protection of T.M.’s country of nationality was available and that there was no ground based on a well founded fear for refusing to avail of it. The Tribunal also relied upon the fact that Article 2 of the European Communities (Eligibility for Protection) Regulations 2006 provided that “protection against persecution or serious harm” was to be regarded as provided “where reasonable steps are taken by a state…operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, where the applicant has access to such protection”. The core of the decision is based on the fact that the applicants in this case could have remained in Pakistan and sought the protection of the police and ultimately the courts to secure their safety in the future, as they had in the past. The Tribunal was also entitled as part of that core decision to come to the conclusion that the family could have relocated somewhere else in Pakistan. 4.6 It is important, therefore, to assess the respondents’ decision in its entirety. Its essence is that there was protection available to the family within Pakistan. This would have applied even if the comments had not been made in respect of credibility (see p. 21 of the decision). 4.7 I am not satisfied that the comments made by the Tribunal regarding the accounts given by T.M. and R.T. in respect of the discrepancy between the noted time of receipt of the complaint by the police in Pakistan and recorded in the FIR as 2.00pm on the 28th February, 2008 and the account by the applicants that they did not furnish their complaint until 4.00 to 5.00pm, relates to the substantive basis upon which the appeal was rejected. Further, the Tribunal was entitled to consider that discrepancy and the explanation offered for it by T.M. in assessing the credibility of T.M.. 4.8 The first named respondent was also entitled to have regard to the further discrepancy in the FIR of the 28th February, 2010, which made no reference to any allegation of a specific assault on any of the children during the course of the raid on the house by the militants and the fact that this emerged for the first time in the accounts given in the s. 11 interview by T.M. and R.T. The accounts are very bare in the detail provided and refer to the assaults as “slight assaults”. The explanation provided by T.M. for the absence of detail is that they did not wish to include their children in the complaint because of their fear for their safety in the light of the threats made against them. 4.9 These were facts which the Tribunal was entitled to assess and consider in relation to the credibility of the applicants’ account of the raid and to regard as significant to his consideration of that issue. The Tribunal carefully assessed this material in its proper context and without affording it an exaggerated standing. This is evident from the fact that the case was decided on the basis of whether the applicants could have remained in Pakistan to avail of the protection of Pakistan’s police and judiciary. Even if he had not made the comments on credibility the tribunal member would still have determined the cases on that ground which is not under challenge in these proceedings. 4.10 I am satisfied in the context of the evidence and materials available to the Tribunal that the applicants have not established that the tribunal member acted in a manner that was so unreasonable or disproportionate as to render his decision unfair or fundamentally flawed. I am satisfied that the appropriate process and procedures were applied by the first named respondent in this case in reaching his decision as to credibility. 4.11 Further, the first named respondent stated that these were comments as to credibility and emphasised that the central part of his decision related to whether, in fact, the applicants could have availed of protection in their national state of origin, Pakistan. 4.12 As outlined above the Tribunal could not see any reason why the applicants could not have remained on in Pakistan and sought the protection of the police and ultimately the courts to secure their safety into the future. This is the core of the first named respondent’s decision. It remains unchallenged by the applicants in these proceedings. The tribunal member noted that even if he had accepted the authenticity of the applicants account nevertheless, on this core issue he had no doubt that protection was available to T.M., R.T. and their children within Pakistan and that the question of internal relocation was a significant consideration which he felt was open to them in the circumstances. 4.13 I am, therefore, satisfied that the decision of the first named respondent in this case was made within jurisdiction and in accordance with fair process and procedures and, moreover, that the matters complained of were not central to the core of that decision. I will, therefore, refuse the relief claimed by the applicants herein.
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