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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> G.N. (Pakistan) -v- Refugee Appeals Tribunal & ors [2015] IEHC 399 (26 June 2015) URL: http://www.bailii.org/ie/cases/IEHC/2015/H399.html Cite as: [2015] IEHC 399 |
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Neutral Citation: [2015] IEHC 399 THE HIGH COURT JUDICIAL REVIEW Record No. 2010 / 38 JR IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED), IN THE MATTER OF THE IMMIGRATION ACT 1999 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/ G.N. [PAKISTAN] Applicant AND
REFUGEE APPEALS TRIBUNAL THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM ATTORNEY GENERAL Respondents JUDGMENT of Ms. Justice Stewart delivered on the 26th day of June, 2015 1. This is telescoped hearing for judicial review seeking certiorari to quash a decision of the Refugee Appeals Tribunal dated 29th September, 2009, affirming the recommendation of the Offices of the Refugee Application Commission that the applicant should not be declared a refugee, and remitting the appeal of the applicant for de novo consideration by a different tribunal member. BACKGROUND 3. The applicant married a woman from Gondo on 26th June, 2007, which is located in Swat Valley, an area controlled by the Taliban, and he visited his wife's family there regularly. On 10th March, 2008, government forces killed a number of Taliban supporters. On 18th March, 2008, Taliban members called to his in-laws’ house and warned him to provide them with information in respect of his contacts with the state authorities. He believes he was suspected on account of not being from the area. On 28th March, 2008, shots were fired at him. On 3rd April, 2008, his wife was with him at her parent’s house when the Taliban again arrived. The applicant succeeded in fleeing. However, his parents-in-law were killed and his wife was abducted. He has not learned of her fate since then. His shop was bombed on 12th April, 2008, and he was again shot at on 5th May, 2008. 4. The applicant states that he made arrangements with an agent; he fled Pakistan, arriving in Dublin airport on 15th July, 2008. The applicant applied for asylum on 16th July, 2008 on completed an ASY1 form shortly thereafter. A Pashto interpreter was provider for the s.11 interview, which was conducted on 9th February, 2009. The Offices of the Refugee Applications Commissioner (ORAC) issued the s.13 report in respect of the applicant’s claim, signed by two officers and dated 25th and 29th February, 2009. The recommendation contained therein was that the applicant not be declared a refugee. The commissioner made eight credibility findings against the applicant. The report goes on, under the heading ‘state protection’, to consider the availability state protection and the feasibility of internal relocation. The report does not make a definitive findings in relation to the aspect of state protection, but does state, in the final sentence at p.72 of the booklet: “It is considered difficult to believe that the Taliban would be able to track him down in Karachi and his alleged fear that they would do so is not considered to be a valid one.” 5. The applicant appealed the decision of the ORAC by form 1 notice of appeal, sent by the applicant’s solicitors on 1st April, 2009. The applicant attended at the offices of the Refugee Appeals Tribunal (RAT) on 26th August, 2009, for an oral hearing in respect of his claim. IMPUGNED DECISION 7. The tribunal member made a series of observations in regard to the applicant’s claim, set out at pp.115-117 of the booklet. First, the tribunal member refers to a report from Refworld of 14th January, 2009, which is a Human Rights Watch report published on the UNHCR’s Refworld website, and quotes from part thereof as follows:
9. The decision then goes on to deal with the issue of state protection, quoting from newspaper articles where the Pakistani state authorities had prevented attacks, regained areas from Taliban control and arrested insurgents. The tribunal member then states that:
APPLICANT’S SUBMISSIONS 11. The applicant submitted that the tribunal member failed to deal with the core issues of the applicant’s claim, maintaining that the decision does not state whether the tribunal member accepted if the applicant had attracted the adverse attention of the Taliban. The applicant relied on the decisions of Eagar J. in B.A. (Nigeria) v. Refugee Appeals Tribunal & ors. [2015] IEHC 76; a decision of this Court in T.U. (Nigeria) & ors. v. Refugee Appeals Tribunal & ors. [2015] IEHC 61; and MacEochaidh J. in B.O.B. v. Refugee Appeals Tribunal & ors. [2013] IEHC 187. 12. The applicant submitted that, with regard to state protection, there was no reasonable or effective state protection as outlined by the country of origin information and therefore a finding in relation to the existence of state protection is not cogent. 13. The applicant asserted that the tribunal member undertook the incorrect test when assessing state protection. The abilities of the authorities to provide adequate and effective protection should have given consideration to the applicant’s own evidence. Counsel refers to James C. Hathaway & Michelle Foster, The law of refugee status 2nd Ed. (Cambridge, 2014) where at p.314 it states:
RESPONDENTS’ SUBMISSION 15. The respondent submitted, the tribunal’s adverse credibility findings reflected findings that had been made by the commissioner and accordingly, the applicant was on notice that those issues could potentially be the basis of a further adverse finding on appeal. The applicant’s explanation for the Taliban giving him a week to explain himself that he was only suspected but not really accused was, the respondents contended, in contradiction to his own assertion that he was in danger as a result of the suspicions entertained by the Taliban. The respondents submitted that the applicant did not provide cogent answers to the questions asked; the idea that the Taliban would follow some form of ‘fair procedures’ in giving him a week to respond to the allegations against him and the respondents argued that tribunal member was entitled to dismiss it as flying in the face of reality. The respondents averred that the tribunal was entitled to consider that, having regard to the general profile of the Taliban; they would take revenge on somebody who they suspected of providing information to the authorities without giving the person the option of escape. 16. The respondents argued that the tribunal member was entitled to make a finding in regard to that lack of evidence provided by the applicant, especially since there had been five alleged incidents involving attacks on the applicant or his family, all of which, the applicant claimed to have reported to the police. 17. The respondents argued that, in regard to the state protection finding, it should be the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) that is taken into consideration and this was quoted by the tribunal member in their decision. Therefore, the respondents contended, the finding on internal relocation was decided in line with legal principles. 18. The respondents submitted that the applicant has not displaced the presumption of the availability of state protection. The respondents relied upon the case of Noonan J. in M.O. v. Refugee Appeals tribunal and ors. [2015] IEHC 55, and para. 20 thereof as follows:
19. The respondents submitted that the findings made by the tribunal member are all severable from each other; the applicant’s credibility was not accepted and even if he was telling the truth, he had the option of internal relocation. DECISION 21. First, turning to the credibility finding made against the applicant in regard to the lack of a first instance report from the police. The tribunal member states at p.14 of the decisions states:
22. The tribunal member states that, at p.115 of the booklet:
23. The applicant submitted that this credibility finding was based on conjecture and in breach of the principles enunciated in the I.R. (supra) decision, namely, the tribunal member deduced that because the Taliban were responsible for many atrocities, it was unlikely that they would have provided the form of fair procedures as described by the applicant. The link between the generalised atrocities committed by the Taliban and the finding by the tribunal member that the Taliban would not afford the applicant time to provide an explanation is based upon conjecture, and is not in line with the principles enunciated by Cooke J. in I.R. (supra). The finding would be open to the tribunal member to make but, in order to do so, the finding should be rationally linked to the evidence, particularly since the tribunal member states that: “[i]t is a significant item […]”. 24. In the penultimate paragraph of the tribunal member’s decision, article 2 of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) is quoted, which is worthwhile setting out hereunder:
25. It seems to me therefore, that the tribunal decision is lacking in cogency and demonstrated a failure on the part of the tribunal member to address the core claim of the applicant, namely whether the tribunal member accepted that he had come to the adverse attention of the Taliban and was therefore in fear of persecution and/or at risk of same. The inconsistencies/ apparent contradictions in the findings of the tribunal member, set out above, lead me to conclude that the decision does not withstand the tests set out by Cooke J. in I.R. (supra). I am therefore satisfied that the decision should not stand. 26. I propose to grant leave and to further grant an order of certiorari in respect of the RAT decision and remit the matter for de novo consideration by a different tribunal member.
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