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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.I -v- O'Gorman & Ors [2013] IEHC 368 (26 July 2013)
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Cite as: [2013] IEHC 368
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Judgment Title: M.I -v- O'Gorman & Ors Neutral Citation: [2013] IEHC 368 High Court Record Number: 2009 879 JR Date of Delivery: 26/07/2013 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 368 THE HIGH COURT JUDICIAL REVIEW [2009 No. 879 J.R.] IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AND THE REFUGEE ACT 1996, AS AMENDED, AND IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BETWEEN M.I. APPLICANT AND
MICHELLE O’GORMAN ACTING AS THE REFUGEE APPEALS TRIBUNAL RESPONDENT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM FIRST NOTICE PARTY AND
IRELAND AND THE ATTORNEY GENERAL SECOND NOTICE PARTY JUDGMENT of Mr. Justice McDermott delivered on the 26th day of July, 2013 1. This is an application for leave to apply for judicial review by way of certiorari seeking to quash the decision of the respondent made on 2nd June, 2009, which affirmed a recommendation of the Refugee Applications Commissioner pursuant to s. 13(1) of the Refugee Act 1996, that the applicant should not be declared a refugee. A number of other declaratory reliefs were also sought, but the only remedy of relevance is certiorari. 2. Twenty grounds for relief were set out in the statement of grounds. Grounds 1 to 6 were unstateable and not pursued, as were grounds 15 to 18 inclusive. Grounds 7, 8, 9, 10, 11, 12, 13, 14 and 19 concerned a challenge to the decision based on alleged deficiencies in findings relating to credibility and the issue of relocation. Ground 20 was a generalised ground of no relevance to the case. Background 4. The applicant claimed that in or about 1996 his father attempted to purchase 25 acres bordering his land which also bordered the substantial holdings of a powerful neighbouring family. He claimed that his father paid a deposit for the land and other sums of money to the vendor but no documents were executed. In fact, the vendor sold the property to his more powerful neighbours without informing his father. His father discovered this when he sought completion of the sale. His family were then in dispute with the vendor about the sale and repayment of monies. The title to the land remains in the vendor’s name. A number of meetings of the local elders were held in an attempt to resolve the matter. During that process on or about 6th June, 1996, the applicant claims that his father was murdered at their home by an agent of the powerful rival landowner. 5. In the s. 11 interview the applicant described the killing. His father was sleeping in the smaller of two houses at the family compound with his uncle and his father’s cousin. He stated:-
8. Following his father’s death the applicant claimed that he and his uncle engaged with the local elders in order to resolve the land dispute and also attempted to discover who killed his father. Matters were not resolved at the various meetings convened. He believed that the powerful neighbouring family was responsible for his father’s death. Proceedings were initiated in the local civil court in Sargodha against the vendor. He claimed that when returning from a hearing in respect of that case in 2002, he and his uncle were attacked at Sakasar village by four or five people. His uncle was shot and killed and he managed to escape through tall sugar cane. In his initial accounts he did not mention that he too had been shot but, much later, in oral evidence he informed the tribunal member that he had been shot in the leg indicating a scar said to have resulted from the wound. 9. Once again, the applicant filled out a police report (FIR) on 12th August, 2002. In this account the two were said to be travelling to court, not returning from court, and the applicant stated that “the accused also fired at me but luckily I was safe”. He stated in his s. 11 interview that he knew two of his assailants identified as cousins of the powerful family and that the police discovered that three others were also behind the attack. He accepted that the police investigated the case. He believed the powerful neighbouring family was also responsible for his uncle’s death. 10. He also complained that this powerful family made constant complaints to the local police that he had been involved in numerous criminal offences in respect of which he was investigated on a number of occasions. He was arrested regularly and imprisoned for periods of up to one month during which he was allegedly tortured. He was never charged with any offence and there are no documents or medical reports to support these contentions. The applicant acknowledged that the civil case against the vendor remains open. The vendor was summoned to court and gave evidence that he received money from the applicant’s father as a loan and not for the land. He claimed that the powerful neighbour paid him money for the land and he said that the vendor still holds title to the property. 11. The applicant left the farm for Lahore in 2004, where he remained for approximately two years. He and his family lived on savings. In December, 2006 he claimed that he was fired upon in the vegetable market in Lahore and again went to the police where he made out another complaint (FIR). After this incident his mother had a heart attack and the family then went to live in Rawalpindi. In the meantime he leased the lands. 12. While in Rawalpindi he claimed that two men came to his house, stated that they were Secret Police and that they wanted to investigate him. They said he was wanted by a Police Inspector and he went with them. When he got into the car he was blindfolded and taken into custody for a year. He was held in what he described as a private house in a “torture cell”, not in a regular police station. He claimed that he was there from January, 2007 to January, 2008 and was ill-treated. His mother wrote a letter to the Chief Justice of Pakistan in Islamabad complaining about this abduction and claiming that it had been effected by the powerful neighbouring landowners through their own agents or through the agency of the Pakistani Secret Police. In this letter the abduction was alleged to have taken place on 12th January, 2007. In his s. 11 interview the applicant claimed that the High Court of Pakistan had appointed some “prosecutors” to the case who came to the house with the police and released him. 13. On his release he returned to Rawalpindi and found that his mother and sister were no longer there. His mother had a house in Sargodha which she sold following which she obtained the services of an agent and travelled to Ireland with his three sisters. He claimed that he did not know the date of these events because he was detained at the time. He explained that he decided to come to Ireland because his family were here and he believed them to be safe. He had previously indicated that he did not know where his mother and three sisters were, but believed they were in the United Kingdom or Ireland and wished to find out. He explained that he did not understand the difference between the Republic of Ireland and Northern Ireland and did not understand to which part of Ireland they had travelled. Following his release he sold a house which had been given to him by his father and arranged his travel to Ireland. 14. Between January and 18th April, 2008 he remained living with fellow classmates in Sargodha City. He arrived in Ireland and claimed asylum on 20th April, 2008. He produced an identification card which had been issued to him on 12th January, 2007. 15. The Refugee Applications Commissioner issued a report recommending that the applicant should not be declared a refugee on 24th October, 2008, following which the matter was appealed to the Refugee Appeals Tribunal. Following an oral hearing on 24th February, 2009, the Tribunal by decision of 2nd June affirmed the recommendation of the Commissioner. 16. In evidence to the Tribunal the applicant stated that he had been released by a High Court bailiff in the company of a number of police officers, together with a number of other detainees whose families had sought their release. Apart from his mother’s letter, no other documentation was furnished to indicate what applications had been made to the Pakistani High Court, by whom, what hearings were convened or what orders issued. The Tribunal Decision
(2) The Tribunal found that the fact that the applicant’s current and permanent addresses given on an identification card issued on 12th January, 2007, were that of the family farm when the applicant stated he had not lived there for over two to three years, called into question his credibility. (3) The Tribunal held that it would have been reasonable of the applicant to seek asylum as soon as practicable after arriving in the United Kingdom rather than risk further immediate illegal travel to Ireland. It noted that when he applied for asylum in Ireland he did not know the location of his mother and sisters but believed they were in the United Kingdom or Ireland. On arrival in London he travelled by van to Liverpool and then travelled by boat to Ireland. (4) The Tribunal concluded that the applicant was able to move freely within Pakistan having lived at various locations prior to coming to Ireland. It noted that the powerful landowners had possession of the disputed land for some time and that his father had never signed any contracts in relation to the land. It was considered unlikely that that family would consider it necessary to search throughout Pakistan for the applicant as they would have nothing to gain even if they found him. It was accepted that the family described by him were very powerful in the Punjab area: one of the family was a Cabinet Minister. However, the Tribunal concluded that internal relocation was a viable alternative for the applicant because of the size and population of Pakistan, the fact that he was an educated man, had experience as a farmer and was somewhat resourceful. 18. The Tribunal devoted a considerable part of its decision to the issue of relocation. It was claimed that the Tribunal erred in law in considering the issue of relocation as part of the determination of whether the applicant had a subjective and objective fear of persecution. It was submitted that internal relocation was an alternative to refugee status and not a component of the test of whether one was entitled to claim that status. It was submitted that the State, through its Secret Police or local police force, was the instrument of his persecution and that the police were used by the local powerful landlord as his agents. The applicant contended that there was no detailed consideration of whether the risk of persecution extended to any other area of Pakistan to which he might relocate. 19. The respondent submitted that the Tribunal was entitled to take account of the possibility of internal relocation in determining whether a well founded fear of persecution exists in the circumstances of this case. 20. Although there is no specific reference to internal relocation in the Refugee Act 1996, or in the 1951 Convention in the definition of a refugee, the guidelines issued by the United Nations High Commissioner on Refugees in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention contains the following reference to the issue:-
91. The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus, in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.” 22. The issue was also considered in the case of Imoh & Ors v. Refugee Appeals Tribunal & Ors (Unreported, High Court, 24th June, 2005) in which Clarke J. stated:-
24. In Darjania v. Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform [2006] IEHC 218, McGovern J. noted the effect of the Januzi decision on United Kingdom law namely, that when addressing whether a person has a well founded fear of persecution for a Convention reason and was, therefore, outside his or her country of nationality, consideration of the internal relocation alternative is a proper exercise. McGovern J. concluded that it was appropriate to adopt the holistic approach referred to in the Imoh judgment and that the Tribunal had not erred in law in holding that the applicant did not suffer from a well founded fear of persecution in view of the option of internal relocation available to him. 25. Internal protection is also dealt with in Article 8 of the Qualification Directive (Council Directive 2004/83/EC of 29th April, 2004) which provides:-
2. In examining whether a part of the country of origin is in accordance with para. 1, member states shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and the personal circumstances of the applicant. 3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.” 26. The applicant claims that the conflict in this case arose out of a local land dispute and the abuse of power of a local powerful landlord and politician. The Tribunal, having considered the applicant’s history decided that he was able to move freely within Pakistan and stay at various addresses prior to his coming to Ireland. This included a two and a half to three month stay in Sargodha where the landowners family had a presence and owned property. It was reasonable for the Tribunal to conclude that the Punjab was one of four provinces in Pakistan which had a population of 168 million people within which the applicant could relocate. It was also reasonable to conclude that it was highly unlikely that the family would pursue him or that he would be located, if he returned to another part of Pakistan. It was noted that he did not feel the necessity to move from Punjab when he left the family farm with his family and each of the towns where they stayed was in Punjab. The Tribunal considered the applicant’s personal circumstances, including that he was a young, educated and resourceful man. (See C.A. v. Refugee Appeals Tribunal & Ors [2008] IEHC 261 and G.O.B. v. Minister for Equality and Law Reform [2008] IEHC 229). The court is also satisfied that this is a case in which it was appropriate to consider relocation particularly having regard to the local non-state origins of the conflict that was said to be at the core of the applicant’s difficulties. 27. It should be noted that the applicant accepts that he availed of state protection with varying degrees of success. He reported the killing of his father and uncle to the police and while no progress was made in the investigation of his father’s death, he reported some progress in relation to the killing of his uncle in that the police identified three further suspects in the case in the course of their investigation of whom the applicant had been unaware. The applicant applied to the civil court in Sargodha and sought a remedy against the vendor of the property in proceedings which are still pending for reasons that have never been made clear by the applicant. In addition, when detained unlawfully he obtained the protection of the Courts of Pakistan which ordered his release. His release was effected by the Pakistani police in execution of a court order. Thus, while the applicant, on the one hand complains of police support for the local strongman, nevertheless, he sought and obtained the support of the police and the Courts in Pakistan with varying degrees of success. 28. In the Januzi case, the House of Lords held that the consideration of relocation was not confined to cases of non-state involvement in the persecution alleged. It was also available when the state sanctions or connives in the creation and maintenance of that fear of persecution because there could be a range of situations in which the state may be involved. It was held that it is for the decision maker to determine the extent to which state and non-state involvement are relevant. In this case the applicant’s claim is that there was some support for the local landlord from the police, but the judiciary and other elements of the police took steps which were unsupportive of the landlord. The court is satisfied in the circumstances of this case that the issue of relocation was properly considered by the Tribunal and its conclusion that, even if the events alleged by the applicant occurred, relocation was available to him was a decision made within jurisdiction and relevant to the determination of whether he was a refugee. The applicant has not established that he is entitled to relief in respect of the issue of relocation. Credibility 30. The Tribunal also concluded that:-
Conclusion |