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Cite as: [2013] IEHC 26
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Judgment Title: S.R -v- Refugee Appeals Tribunal & Ors Neutral Citation: [2013] IEHC 26 High Court Record Number: 2012 302 JR Date of Delivery: 29/01/2013 Court: High Court Composition of Court: Judgment by: Clark J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 26 THE HIGH COURT JUDICIAL REVIEW Record No. 2012 / 302 J.R. Between: S. R. [PAKISTAN] APPLICANT - AND -
THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT OF MS JUSTICE M. H. CLARK, delivered on the 29th day of January 2013. 1. The applicant is a national of Pakistan whose identity and membership of the Ahmadiyya Muslim faith is not in dispute. He seeks leave to apply for an order of certiorari quashing the decision of the Refugee Appeals Tribunal, notified to him on 26th March 2012, which affirms the recommendation of the Refugee Applications Commissioner that he should not be granted a declaration of refugee status. The application for leave to apply for judicial review was heard on 19th December 2012. Mr Gary O’Halloran B.L. appeared for the applicant and Ms Elizabeth Cogan B.L. appeared for the respondents. 2. In fact, the matter first came before the Court on 22nd November 2012 as an application for an urgent priority hearing. The basis for such priority resembled those applications made in the Court of Criminal Appeal pursuant to Order 86 RSC in instances where a ground likely to succeed is identified and the convict is released on bail while the appeal against conviction is pending. The Court was therefore receptive to the application and directed notification to the respondents. By the time the respondents were notified, events had moved on in that the applicant had unlawfully left the State having travelled as far as Singapore via Frankfurt on someone else’s passport. He was detained by the immigration authorities in Singapore and returned to the State and to his direct provision accommodation in Foynes, Co. Limerick. While there, he experienced significant personal difficulties. As soon as the Minister was made aware of those personal difficulties, he arranged for the applicant’s transfer to alternative accommodation. The applicant explained that he left Ireland in an act of desperation as he believed that he could apply successfully for asylum in Australia which was his destination. 3. The leave application was listed for hearing on 18th December 2012 and the respondents were asked if they would agree to a telescoped hearing bearing in mind the common ground in the case as the applicant’s identity and his membership of the Ahmadi faith was accepted. The respondents would not consent either to a telescoped hearing or to the other option suggested by the Court namely that the leave application would be dealt with by way of written submissions and the hearing date would be reserved for the substantive hearing should that prove necessary. The Court was informed that the application for judicial review would be fully contested on the basis that the applicant had twice returned to Pakistan while he was living in the State on a student visa, that members of his family lived in Pakistan without harm and that he did not claim asylum in Ireland until he had been in the State for four years and that none of these facts were consistent with a fear of persecution. Background to the claim Decision of the ORAC The Appeal to the Tribunal The Tribunal decision 8. Following his secondary education in Chenab Nagar, he commenced his third level education in 2004 in the G.C. University of Faisalabad where it became known that he was an Ahmadi. Even though a talented cricket player, he was not included in any teams and was prevented from playing cricket because of his religion. When he made a written complaint to the university authorities no action was taken. He was attacked shortly afterwards in the university canteen and beaten with wooden clubs suffering a severe fracture of his right leg as a result. A medical report from a doctor in Ireland was furnished. This report confirms scarring at the fracture site consistent with the applicant’s description of a fracture secured with a plate and screws. His parents made a complaint to the police but no action was taken as it was claimed that the suspects could not be found. When he eventually recovered from his injuries and returned to Faisalabad, he saw that his attackers were still attending the University. They continued to harass him because he was Ahmadi. His parents advised him to study from home and arrangements were made with the university authorities for him to continue as an external student. He graduated after two years. His father later met another Ahmadi family whose son was studying in Ireland and decided that his son should follow the same course. The applicant then obtained a student visa for Ireland and attended courses in economics for four years before returning to Rabwah in January 2011. He did not even think of applying for asylum during his stay in Ireland as he believed that conditions for Ahmadis in Pakistan would improve. 9. The applicant said he had no problems when he visited Pakistan for three weeks in 2009 because he mostly stayed at home. In relation to life in Chenab Nagar (Rabwah) he said, “The majority of the people there are Ahmadi so we didn’t suffer any problems. But we would have fear of the anti Ahmadi groups in the area like Khatam e-Nabuwaat.” 10. He described a further attack of a far less serious nature when he was last in Rabwah in 2011. His family had links to the current leader of the Ahmadi faith. When he visited Ireland a photograph was taken of the applicant with the Ahmadi leader for whom the applicant provided security. This photograph was on the wall of his home in Rabwah. A university friend who was visiting asked about the photograph. This led to a discussion of his faith. The friend subsequently expressed an interest in joining. His family strongly disapproved and beat the friend whose brother then told the local mullah that the applicant had tried to convert him. A newspaper article was published which called for action to be taken against the applicant.3 The police then came to the applicant’s home but his father was able to deflect them from arresting the applicant by bribing them. His friend’s brother then made a complaint to the KN who organised an attack on the applicant on 17th April 2011. He was attacked with sticks by three motorcyclists who fled when they saw others coming. The applicant reported this to the police who said they would take action but the next day when the applicant came to register a First Information Report (FIR) the police were disinterested and asked him and his father to leave the police station. The applicant’s parents became very worried for his safety and decided that he should return to Ireland. He remained indoors without harm until it was time to leave for Ireland. His friend’s brother made an FIR to the police and then, dissatisfied with the actions of the police, brought legal action against the applicant under the blasphemy laws of Pakistan. Those documents were before the Tribunal. 11. The applicant said more generally that flyers were openly distributed saying his family should be killed and their shop burned. The police were afraid of the radical clerics. These problems were experienced by Ahmadis throughout Pakistan. His religion was very important to him and that he would like to practice his religion openly but could not do so anywhere in Pakistan. No Ahmadi is safe from the anti-Ahmadi groups though they tended to seek out the more enthusiastic people who were more involved in preaching. His parents were now old and his father was no longer involved in the administrative positions of the Ahmadiyya community nor did he now preach. His parents mainly stayed at home and no longer went to Friday prayers preferring to attend small gatherings in houses. His brother who remained in Pakistan was also trying to leave. Finally, the applicant explained that he did not apply for asylum earlier because he wished to live in Pakistan and hoped things would improve but the cumulative impact of all the instances of persecution after his return made him believe that he could no longer risk his life there. The Tribunal findings Submissions DECISION 15. The Court expressed its view that the negative tone of the Tribunal decision, the disregard of extensive evidence of well documented, State sponsored anti-Ahmadi legislation and the poor record of the police in either investigating or prosecuting individual acts of violence and property damage directed at Ahmadis were indicative of a decision so lacking in fairness as to be a nullity in law. The decision quotes extensively from legislative guidance found in the Refugee Act 1996, the ECs (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) (“the Protection Regulations”) and Directive 2004/83/EC (“the Qualification Directive”) with respect to the assessment of credibility and of facts and circumstances, but seems not to have applied those guidelines. There is no reference of any kind to COI or to several highly relevant reports furnished by the applicant which were capable of supporting the applicant’s assertions of persecution and discrimination against Ahmadis in general and the applicant’s family in particular. Similarly, a medical report capable of confirming old fractures of the lower bones of the right leg was found to be of no evidential value, without adequate reasons being given for that conclusion. Moreover there is nothing in the decision which attempts to view the subjective elements of the applicant’s claim in the light of what is objectively known of conditions in Pakistan for Ahmadis. 16. When the Court indicates that a decision is so lacking in basic fairness, so infected by errors of law and fact that it should be quashed without further argument, it is highly unusual that the respondents should insist on a full further hearing. That is the situation in this case. For this reason the Court delivers this detailed judgment in the expectation that the continuation of the matter to a substantive hearing may be reconsidered. 17. While a Court must approach judicial review of the decision of an administrative authority with care and avoid the temptation to replace its own view for that of the decision maker, the Court is obliged to determine whether or not the decision is sound in law and, in particular, whether the conclusions reached on credibility are legally sound. While it is the function of the Tribunal Member to evaluate credibility and come to a view on the validity of the claim made, he / she is not at large to arrive at such decision on the basis of instinct, pre-conceived ideas or gut feeling. The decision must be based on evidence, on an evaluation of the documents put before the decision maker including the notice of appeal, and on consideration of objective country of origin information. The decision maker at first instance and on appeal is obliged to seek out and consult relevant, up to date objective information. Regretfully, this procedure is not apparent in this case. 18. The correct approach to the evaluation of a refugee claim is set down in many well established sources. This Court cannot improve on the guidelines provided by the UNHCR on the evaluation of a refugee claim in its Note on Burden and Standard of Proof in Refugee Claims(1998) at paragraph 11:-
21. Article 4 of Directive 2004/83/EC (the Qualification Directive or QD) provides:
2. The elements referred to in of paragraph 1 consist of the applicant's statements and all documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection. 3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied; (b) the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm; (c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious.” 23. Finally, the Court refers to the important decision of Cooke J. in Radzuik (I.R.) v. The Refugee Appeals Tribunal [2009] IEHC 353, where he found that the following ten principles emerge from an analysis of case law as a guide to the manner in which evidence going to credibility ought to be treated and how the review of conclusions on credibility ought to be carried out by the courts. Those identified principles are:-
2) On judicial review the function and jurisdiction of the High Court is confined to ensuring that the process by which the determination is made is legally sound and is not vitiated by any material error of law, infringement of any applicable statutory provision or of any principle of natural or constitutional justice. 3) There are two facets to the issue of credibility, one subjective and the other objective. An applicant must first show that he or she has a genuine fear of persecution for a Convention reason. The second element involves assessing whether that subjective fear is objectively justified or reasonable and thus well founded. 4) The assessment of credibility must be made by reference to the full picture that emerges from the available evidence and information taken as a whole, when rationally analysed and fairly weighed. It must not be based on a perceived, correct instinct or gut feeling as to whether the truth is or is not being told. 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. 9) Where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in support of a claim and which is prima facie relevant to a fact or event pertinent to a material aspect of the credibility issue, the reasons for that rejection should be stated. 10) Nevertheless, there is no general obligation in all cases to refer in a decision on credibility to every item of evidence and to every argument advanced, provided the reasons stated enable the applicant as addressee, and the Court in exercise of its judicial review function, to understand the substantive basis for the conclusion on credibility and the process of analysis or evaluation by which it has been reached.” 25. Any Tribunal decision must of course be based on correct facts. This brings the Court to a disturbing aspect of this case. Two UK Immigration Appeals Tribunal determinations on which the Commissioner relied so heavily do not, on examination, actually support the description of the ‘unexceptional’ Ahmadi as found by the authorised officer. KK (Ahmadi, unexceptional, risk on return) Pakistan 2005 UKIAT 00033 (4th February 2005), relied on in the s. 13 report, deals with a claimant who was a member of the Ahmadi faith, whose home was in Rabwah, but there were no additional risk factors specific to him beyond the mere fact that he was a member of the Ahmadi faith from Rabwah. He therefore fell into the description as an “unexceptional” Ahmadi in that he was of the Ahmadi faith but he:
- had no particular profile in the Ahmadi faith, - had no history of persecution or other ill-treatment in Pakistan related to his Ahmadi faith, and - had no other particular features to give any potential added risk to him (example, by being a convert to the Ahmadi faith). 27. The second case relied on by the Commissioner was A & Ors. (Ahmadis; Rabwah) Pakistan CG [2007] UK AIT (23rd October 2007). That case dealt specifically with Rabwah as a safe haven for Ahmadis. It is instructive to consider the following passages:-
22. But although there is safety in numbers, and there is a possibility of informal community support amongst Ahmadis, the advantages of Rabwah stop there, even for an Ahmadi who lives in Rabwah. Such a person cannot expect in Rabwah any more than anywhere else to obtain protection from the police, (there are few or no Ahmadi policemen) or from other officials, because despite being the majority population of Rabwah, Ahmadis are not represented in government. So there is no greater protection available for local Ahmadis in Rabwah than there is for Ahmadis elsewhere in Pakistan. [...] 25. It seems therefore to us that despite Rabwah’s special profile in the Ahmadi religion, it has no special status in the refugee related discourse relating to Pakistani Ahmadis. It is simply wrong to say in general that a person who has established a history of persecution or a fear of persecution as an Ahmadi in some other part of Pakistan can reasonably be expected to relocate to Rabwah. It may be that he can go to Rabwah for a short time. It may be that for that short time he will be safe. But, save in exceptional circumstances, for example if he has family or relatives in Rabwah, despite the majority of inhabitants there, he may not in fact be reasonably practicably able to live there and, if he does, he will be no safer than anywhere else because the governmental, official structure and seat of power is the same as elsewhere in Pakistan and the fundamental anti-Ahmadi religious group, the KM, is as active there as elsewhere, if not more so. [...] 28. It is wrong to assume that Rabwah, because it is has a majority Ahmadi population, is either accessible or safe for those who on the evidence, need a place of safety. Each case will depend on its facts and in no way can the existence of Rabwah be regarded generally as a reason for dismissing an appeal that would otherwise be allowed.” (Emphasis added). Treatment of Supporting Documents 30. It is disturbing to read in the analysis of the applicant’s claim the Tribunal Member’s statement that “the documentation produced by the Applicant would tend to suggest that the Applicant was a person who had influence with the police. Any fair reading of the document runs counter to the Applicant’s contentions.” The documents which tend towards that conclusion were not identified by the Tribunal Member and none could be found by this Court in the large bundle of personal documents or COI furnished. The FIR made to the Court of the Resident Magistrate, which might possibly be the source, emanates from a man describing himself as a labourer and a fervent follower of Khatam e Nabuwwat. He says that he went “to the Sadar Police Station, Chiniot, with witnesses and lodged a complaint against the defendant’s unlawful act but the police kept circling around the police station due to the defendant’s being influential and failed to take action against him.” When one considers that the applicant described his father as a mill owner it is conceivable that the difference in social status may have been part of the reason for the complaint of influence. The Tribunal Member’s reliance on the complaint, which coincides to some extent with what the applicant said about the police being bribed not to arrest him, surely cannot form the foundation of a finding that “the documentation produced by the Applicant would tend to suggest that the Applicant was a person who had influence with the police.” It is simply not appropriate to selectively refer to an assertion made by a fervent, extremist anti-Ahmadi complainant and to make it the principal finding against the applicant. It is not appropriate or fair to ignore the main content of the FIR in question, which is highly consistent with the applicant’s claim. It is not appropriate to ignore the applicant’s narrative and explanations when making a significant finding of fact and credibility. 31. Read as a whole, the Tribunal decision appears far from an independent assessment of the applicant’s oral evidence and of the documents supporting his claim. The overall impression is that the Tribunal Member gave undue deference to an apparently hostile Presenting Officer set on defending the s. 13 report. The Tribunal adopted her submissions on certain aspects of the applicant’s claim including some unusual inferences from documents. A negative interpretation was taken of every piece of supporting documentation including the Irish medical report. The credibility of the severe attack on the applicant by students at the University of Faisalabad was rejected because the applicant produced no medical reports or FIR supporting the incident, while reports which were produced relating other incidents were ignored. His exclusion from the University cricket team was dismissed as a minor complaint rather than another indication of severe, systemic and effective discrimination which might in accordance with Article 9 of the Protection Regulations “be sufficiently serious by their nature or repetition as to constitute a severe violation of basis human rights or an accumulation of various measures”. The final FIR sworn by one of the alleged persecutors confirms every aspect of the applicant’s narrative, but it too was ignored apart from the allegation that the applicant had influence with the police. The court proceedings against him under Ordinance XX – the blasphemy law – which was the immediate reason for leaving Pakistan, was simply not mentioned. 32. In those circumstances, the Court cannot accept that any fair reading of these documents could lead to the inference or conclusion that the applicant was a person who had influence with the police. The only document which contains any reference to influence with the police is the FIR complaint made by a person who refers to Ahmadis and to the applicant in very pejorative language. The FIR was sworn by the brother of the applicant’s university friend which, in its intemperate tone, faithfully depicts all which the applicant feared and repeats everything which the applicant asserted of the events which led to his determination to leave Pakistan. 33. Finally there is the treatment of the medical report from Dr. Eileen Cassidy. While the report on its own may not be of particular evidential value, it nonetheless forms part of the jigsaw of corroborative documents furnished by the applicant. It seems to the Court that it was too easily dismissed. Internal Relocation
State Protection Conclusion 38. Pursuant to the Court’s jurisdiction under Order 84, rule 20(4) (as amended by S.I. 691 of 2011), leave will be granted for the applicant’s statement of grounds to be amended to include the following grounds, on which leave to apply for judicial review will be granted:-
2. Insofar as his finding on state protection is concerned, the Tribunal Member erred in law and in fact in disregarding extensive evidence of State sponsored anti-Ahmadi legislation and the poor record of the police in providing protection to Ahmadis who are victims of such persecution. 3. The Tribunal Member erred in fact in finding that the applicant “was not a high profile member” of the Ahmadiyya faith community when in fact he came from a prominent Ahmadi family with a history of persecution. 4. The Tribunal Member acted in breach of statutory duty and natural and constitutional justice insofar as he failed to assess the probative value of documents furnished by the applicant including identity documents, documents relating to the persecution of his family members, and medical reports. 5. The Tribunal Member selectively relied on a short extract from the F.I.R. sworn by one of the applicant’s attackers and failed to assess its corroborative potential and erred in fact insofar as he found that the F.I.R. indicates that the applicant has influence with the police.
6. The Tribunal Member disregarded relevant, up to date country of origin information which was furnished by the applicant and which was capable of supporting the applicant’s assertions of persecution and discrimination against Ahmadis in general and the applicant’s family in particular. 7. The Tribunal Member’s assessment of credibility lacked basic fairness and failed to balance the applicant’s subjective evidence with country of origin information furnished by the applicant in arriving at his credibility assessment. 2. The applicant submitted extensive hospital notes on this very serious assault. 3. Preaching or proselytising by Ahmadis is a criminal offence in Pakistan. 4.This identical sentence has been seen in other cases which do not involve Rabwah or Pakistan.
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