H601
Judgment
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Neutral Citation: [2014] IEHC 601 THE HIGH COURT JUDICIAL REVIEW [2011 No. 50 J.R.] BETWEEN S.N. (PAKISTAN) APPLICANT AND
THE REFUGEE APPEALS TRIBUNAL (CONSTITUTED OF DENNIS LINEHAN TRIBUNAL MEMBER) AND THE MINISTER FOR JUSTICE AND LAW REFORM RESPONDENTS JUDGMENT of Mr. Justice Eagar delivered on the 2nd December, 2014 1. This is an application for leave to seek judicial review seeking to quash the decision of the first named respondent in his capacity as a member of Refugee Appeals Tribunal made on 17th December, 2010, and communicated by letter dated 7th January, 2011. 2. The grounds of this application are set out in the statement required to ground the application for judicial review and the reliefs sought include:-
(2) A declaration that the procedures for the determination of asylum applications provided for in the Refugee Act 1996 (as amended) and the European Communities (Eligibility for Protection) Regulations 2006, failed to comply with the minimum standards prescribed by Council Directive 2005/85/EC of 1st December, 2005, by depriving the applicant of an effective remedy against the first determination of the application as required by Article 39 of the Directive.
(b) Failing to have regard to the full extent and nature of the applicant’s application for refugee status and the evidence provided by the applicant in support thereof. (c) Failing to have regard to the documentation supporting the applicant’s application to the Office of the Refugee Applications Commissioner. (d) Relying on conjecture and speculation and/or applying a standard of reasonableness incompatible with the cultural and human rights differences between the State and Pakistan, in particular by applying an assumption that on completion of a first information report (FIR) that the Pakistani police would be obliged to investigate the crime. (e) Making adverse findings that were unfair and/or unreasonable. (f) Failing to give sufficient consideration to the substance of the prosecution claimed. (g) Failing to give substantially the benefit of the doubt to the applicant. (h) Failing to consider the applicant’s circumstances and credibility from a culturally specific context. (i) Failing to reach a decision on credibility which was proportionate in all the circumstances. (j) Determining that there is “some form of protection” available to the applicant without considering would such protection be available to a member of a minority religion which the applicant is, and which view is supported by country of origin information. (k) In determining that the applicant could internally relocate in circumstances where he has already attempted to relocate in the areas identified by the Tribunal and has already found himself unable to relocate to those regions. (l) Determining that the fact that the applicant was not killed when he was detained by Lashkar-e-Jhangvi is a valid basis to disbelieve the applicant is in danger of his life. If the applicant was killed he would not be in the State at present and the effect of this determination is illogical as it excludes from consideration any fear arising from a past risk of being killed. (m) Determining that, notwithstanding the applicant was only in Turkey for a few hours, that he could have applied for asylum there. 5. At Ground (a), the applicant claimed that the first named respondent failed to have any or any adequate regard to the country of origin information as submitted by the applicant and/or the country of origin information generally available. Counsel for the respondent made the point that it was not clear from this ground as pleaded in what respect the first named respondent’s decision was rendered unlawful because of a failure to consider country of origin information or as to how this undermines the credibility findings and the complaint is excessively general. Further, at Ground (b) the respondent states that the applicant’s claim that the first named respondent failed to have regard to the full extent and nature of the applicant’s application for refugee status and the evidence provided by the applicant in support thereof complains that the applicant does not state what evidence was overlooked nor, indeed, does he point in this regard to any evidence supporting the claim that evidence was overlooked. 6. I am satisfied to consider that the applicant in appealing against the decision is seeking to judicially review the decision of the first named respondent and I would consider same generally, noting the respondent’s complaints of the statement of grounds contained in her written submissions. History 8. He says that on 12th November, 2008, the Refugee Applications Commissioner rejected his claim for asylum and that he then appealed to the first named respondent. He further states that in travelling to Ireland he was only in Turkey in transit for a short period and, as such, could not apply for asylum there. Exhibited with the affidavit of the applicant was the FIR made by the applicant’s brother in law to the police in the district of Faisalabad, a certificate from Shia Mosque confirming that he had converted from his religion to Shia Asna Ashri on 5th January, 2007. Further exhibited in the affidavit was a report to a police station in the Faisalabad district which sets out his history and his complaint that on 14th November, 2007 (the day he made the complaint) five or six unidentified people who belonged to Sipah-e-Sahaba attacked his camp and beat him up. They also started throwing medicines and instruments out of the camp. He complained to the police that they had severely tortured him and he received injuries to his right hand and various parts of his body. He asked that action be taken against the unidentified accused. The document also shows that the police proceedings indicated that the applicant appeared before a member of the police and submitted a written complaint along with a medical report, in which the doctor had mentioned three injuries. The document from the police goes on to say that the said complaint and the medical report as submitted show, prima facie, an offence punishable under Pakistani criminal law and that the FIR has been registered and a copy of the FIR was being sent to the people in charge of the investigation for further investigation. The medial report, in fact, appeared to contain images of three injuries, all of which appeared to be on the left hand and arm. The Decision of the First Named Respondent 10. The first named respondent made the following findings:-
“No state can guarantee the safety of its citizens. And to say that the protection must be effective suggests that it must succeed in preventing attacks which is something that cannot be achieved….In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate to the gravity of the crimes. The victims as a class must not be exempt from the protection of the law.” The first named respondent held that there was adequate protection in Pakistan for the particular applicant. The first named respondent said he found it difficult to accept that he would be killed if he was to return to Pakistan and that he would be a specific target of a terrorist group, such as Sipah-e-Sahaba or some other organisation. He found this difficult to accept when, according to the applicant’s evidence, he was detained by Lashkar-e-Jhangvi for a period of 15 to 20 days. If a terrorist group wished to kill the applicant they had ample opportunity to do so. But, in fact, he claimed he was able to escape from that terrorist organisation when one of their security guards allegedly took pity on him and organised for him to escape. The first named respondent said the whole circumstances surrounding his alleged detention escape is somewhat incredible in the context of the claims he is now making. He said that this aspect of his claim must question the wellfoundedness of his fear and also the credibility of the claim in question. He also indicated that the applicant had travelled to Turkey on his way to the country and he could have applied for asylum there and he quoted s. 11B of the Refugee Act 1996, in assessing the overall credibility of the applicant for the purpose of the investigation which states that the Commissioner or the Tribunal may, in assessing the credibility of an applicant for the purposes of the investigation of his or her application or the determination of an appeal in respect of his or her application shall have regard to whether the applicant has provided a reasonable explanation to substantiate his or her first claim, that the State is the first safe country in which he has arrived since departing from his or her country of origin or habitual residence. He emphasises that this finding has not been his primary consideration but says that he is entitled to take it into account.
2. It is indefensible for being in the teeth of plain reason and common sense because the court is satisfied that the decision maker has breached his obligation whereby he must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.” 12. In this case the applicant feared persecution from a terrorist group and sought the protection of the Pakistani authorities. He has not shown that the Pakistani authorities have not investigated his complaints and further, the first named respondent accepted that there were shortcomings within the police system in Pakistan but observed there was no system of justice or enforcement perfect within any jurisdiction. The decision of the first named respondent was that state protection was available to the applicant and this was the first named respondent’s primary finding. 13. I am satisfied that the first named respondent has set out the reasons for his decision and it is not the role of this Court to seek to act as an appeal against this decision. Internal Relocation Decision on Judicial Review 16. In all the circumstances I am not satisfied that the applicant herein has established substantial grounds for challenging the decision of the first named respondent herein, and I refuse the reliefs sought in the notice of motion and statement of grounds. 17. I note the Practice Direction H56 in Asylum, Immigration and Citizenship cases. Paragraph 20 states that:-
As a result of the length of the legal submission in each case, most of which contained argument, I am not satisfied with the nature and length of the legal submissions. In future cases I will direct that the parties if they produce submissions in breach of the Practice Direction, will be required by me to provide new written submissions and, if necessary, the case will be adjourned for that purpose. |