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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Z.Y. (Pakistan) -v- Refugee Appeals Tribunal [2014] IEHC 498 (02 October 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H498.html Cite as: [2014] IEHC 498 |
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Judgment
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Neutral Citation: [2014] IEHC 498 THE HIGH COURT JUDICIAL REVIEW [2010 No. 1033 J.R.] BETWEEN Z.Y. (PAKISTAN) APPLICANT AND
REFUGEE APPEALS TRIBUNAL RESPONDENT AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM NOTICE PARTY JUDGMENT of Mr. Justice Barr delivered the 2nd day of October, 2014 Background 2. The applicant has a farm, although the size of this and its location are not evident from the papers submitted. However, of more importance, is the fact that he owned and ran a shop selling music CDs and DVDs. This was in the main bazaar in Haroonabad City. In his interview, the applicant stated that he had been operating the shop for six months before he was attacked. However, in the RAT decision, it was stated that he had been operating the shop for approximately twelve months prior to the attack. 3. The applicant states that on Friday, 5th June, 2009, when he returned to his shop after praying at the Mosque, he received a threatening phone call. The caller told him that selling CDs and DVDs was an un-Islamic activity. He was told that he had fifteen days in which to cease trading. The applicant states that after this threatening phone call, he went to the police to report the incident. They told the applicant that it was probably someone playing a prank and not to take the call seriously. The applicant continued trading from his shop. 4. On 20th June, 2009, the applicant received a further telephone call, in which he was told that as he had not closed the shop he should prepare to be murdered. On the following day, four men, one of whom was armed with a pistol, came into the applicant’s shop and took him at gunpoint into a van. They blindfolded the applicant and took him to some other location. The applicant states that throughout the entire night he was kicked and beaten by the men. He was bleeding due to the blows to his mouth and face. The assailants threw the applicant onto the side of the road. He lost consciousness. When he awoke he was in a hospital. He was detained in hospital for four days. 5. While the applicant was in hospital he received word that his shop had been destroyed by a bomb. The police visited the applicant in hospital. The applicant could not recall what details they took from him. He states that he was very worried about what further action the Taliban might take against him. He fled to the home of a friend in Gujarat, which was approximately 120km from the applicant’s home. He remained in Gujarat from June 2009 until early February 2010. 6. The applicant made contact with his brother, who was living in Ireland. He agreed to act as a sponsor for the applicant, so that he could come to Ireland on a visitor’s visa. In due course, the applicant received the requisite visa on his passport. He left Pakistan on 13th February, 2010, and flew to Turkey and from there he flew to Ireland. 7. The applicant stayed with his brother for two weeks. He then applied for asylum in the State. By the time of his s. 11 interview, he had lost his passport, which the applicant stated had fallen out of his pocket. He had not reported it lost to the gardaí as he did not speak enough English. 8. The applicant stated that he phoned his mother and learnt that some men had called to the family home looking for him. He states that these were Taliban extremists. Nobody reported this incident to the police. 9. The applicant filled out the questionnaire and attended for an interview pursuant to s. 11 of the Refugee Act 1996, as amended. The Refugee Applications Commissioner (hereinafter “RAC”) made a negative recommendation on 13th April, 2010. The applicant appealed this recommendation to the Refugee Appeals Tribunal (hereinafter “RAT”). After conducting an oral hearing the RAT in a decision dated 29th June, 2010, found that the applicant should not be declared to be a refugee. The applicant challenges the decision of the RAT on a number of grounds. These are set out hereunder. Failure to address country of origin information in relation to internal relocation 11. The applicant argued that the COI before the Tribunal lent support to the applicant’s claim that the Taliban had a powerful system of connections throughout Pakistan. The applicant stated that there was specific COI before the Tribunal that the Taliban were active in the locations identified by the Tribunal as safe places to which the applicant could relocate. 12. In his submissions, the applicant cited from the following news article which had been submitted to the Tribunal entitled “Taliban expanding networks in Pakistan’s military political heartland - Punjab” published on 17th June, 2010. In this report, he was stated as follows:-
The emergence of a new extremist network known as the Punjabi Taliban, which has strong ties with both the Taliban and Al-Qaeda, is certainly a cause of worry not only for the provincial government but also for the federal government, which is already facing the heat of militancy in the lawless tribal regions along the Afghan border.”
Even Rana Sanaullah, the provincial Law Minister, admits that at least 20 to 30 percent members of local terror groups have joined forces with the Punjabi Taliban network to wreak havoc in Punjab. Despite admitting that the situation is fast spiralling out of control, Sanaullah has objected to calls for a full-scale military operation in the region to quell the terror threat, saying the real threat comes from the training camps in terror hot bed North Waziristan.”
21. As indicated above, the key element in the reasoning of the contested decision in relation to State protection was that State protection is and would be available from Nigerian police against the threats of kidnapping by the Oodua People’s Congress. However, if that reasoning is based upon an acceptance by the Tribunal member that the kidnapping recounted by the applicant did take place or may well have taken place, then a finding based on relocation would have required, if it was to comply with Regulation 7, some inquiry as to whether the OPC was active in and capable of threatening the applicant in the locality in which she was supposed to relocate on return.” 16. Regulation 7 of the European Communities (Eligibility for Protection) Regulations, 2007 (S.I. 518/2006) provides as follows:-
7 (1) As part of the assessment of protection needs, a protection decision maker may determine that a protection applicant is not in need of protection if the applicant can reasonably be expected to stay in a part of his or her country of origin where there is no well founded fear of being persecuted or real risk of suffering serious harm. (2) In examining whether a part of the country of origin accords with paragraph (1), the protection decision-maker shall have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.” 18. The respondents noted that in the s. 11 interview, it was specifically put to the applicant that Pakistan had a population of 167 million people and that he could return to Rawalpindi, Islamabad Karachi, Lahore or Hyderabad. It was noted that the applicant’s reply at interview was that the Taliban had a strong network all over the country and that the applicant would be followed and that he had no money to go to another city. 19. The respondent submitted that the Tribunal Member was not obliged to accept all the claims made by an applicant for asylum, but is obliged to assess the evidence in light of country of origin information (if relevant to the particular issue), the overall evidence of the applicant and indeed the Tribunal Member’s own commonsense. In this regard, they cited the decision of Birmingham J. in M.E. v. Refugee Appeals Tribunal [2008] IEHC 192. 20. It was submitted that the Tribunal Member had adopted the correct approach in this regard. He took into account facts about the country of origin information, in particular its size and extremely large population, as well as the fact that it had a number of very large centres of population. The Tribunal Member also took into account the fact that the applicant had already relocated and lived safely for several months, 120 miles from his own home. The correct legal test, that internal relocation must not be an “unduly harsh” option, was considered and it was specifically taken into account that the applicant had a farm as well as a shop and appeared to be relatively well off. 21. The applicant challenged these findings on the basis that there was specific country of origin information before the Tribunal indicating that the Taliban were active in the locations identified by the Tribunal. The respondent submitted that this was not the point at issue. Even if the Taliban were active in other parts of Pakistan, it does not follow that the applicant himself would be at risk. The respondent stated that the applicant’s claim was based on solely on his ownership of a music shop, which he claimed had been destroyed in June 2009. The applicant did not claim to be well known, politically active or otherwise remarkable. It was submitted that there was nothing in the country of origin information to suggest that the applicant would be tracked down anywhere else in Pakistan. 22. The respondent claimed that the reliance placed by the applicant on the decision of Cooke J. in ASO v. Refugee Appeals Tribunal [2009] IEHC 607, was misplaced. In the present case, the Tribunal Member regarded it as significant that the applicant, according to his own evidence was not harmed between the end of June 2009 and early February 2010. That was when he was staying with a friend only 120 miles from his own home. The Tribunal Member took into account the size of Pakistan and its extremely large population. Based on the applicant’s experiences, the Tribunal Member made a valid and lawful finding that the applicant, if he could live safely 120 miles from his own home for seven months could relocate to a large centre of population such as Karachi, Lahore or Islamabad. 23. The respondent submitted that in making these findings, the Tribunal Member had satisfied himself that the applicant could have moved safely to these locations. That finding was based on the particular circumstances of the applicant and the nature of his claim and was in the circumstances lawful. 24. I am of opinion that the submissions of the respondent are well founded. While the Taliban might be active in various parts of Pakistan, there was no evidence that the applicant would be subject to persecution if he were to relocate to one of the large cities in Pakistan, on the basis that he had been the owner of a CD shop which had been destroyed in June 2009. In the circumstances, the Tribunal Member was entitled to come to the conclusion that the option of internal relocation was open to the applicant. The Issue of State Protection 26. The applicant submitted that there was other COI before the Tribunal which pointed in the other direction. He referred to a report by the Crisis Group Report “reforming Pakistan’s police” dated 14th July, 2008. This report included evidence that the police had links to jihadi and sectarian groups. At p. 15 of the report it was stated as follows:-
28. The applicant submitted that the respondent failed to resolve a conflict in the COI and failed to give adequate and cogent reasons for preferring certain COI over conflicting COI. They submitted that on this account, the decision should be quashed. 29. The applicant referred to the case of L.O.J. v. Refugee Appeals Tribunal [2011] IEHC 493, where Hogan J. stated as follows:-
31. The applicant gave evidence that after the assault on 21st June, 2009, and the subsequent bombing of his shop, the police approached the applicant in hospital. In these circumstances, it was submitted that the Tribunal was right in interpreting the applicant’s evidence that the police sought the applicant out after the more serious attack. If that was so, the Tribunal Member was within his jurisdiction in finding that there was a functioning police force in Pakistan and that the applicant could avail of protection from the police. 32. The respondent points out that the applicant seeks to impugn the finding of the Tribunal that State protection was available, by referring to an extract from the International Crisis Group Report “Reforming Pakistan’s Police” of 14th July, 2008. In fact, the applicant had cited a number of paragraphs from this report which painted a picture of a police force struggling to deal with the threat from terrorist organisations and from the Taliban in particular. The following extracts were referred to by the applicant:-
While Musharraf relied on the police to counter political opposition, his government deprived the force of adequate resources - administrative, technical and fiscal. After almost a decade of neglect, it is not surprising that the police have proved incapable of maintaining internal security. Considered a soft target by extremists of every hue, scores of poorly equipped personnel have been killed in terror attacks, deeply demoralising the force… It is hardly surprising that this under-staffed, ill equipped, deeply politicised, and pervasively corrupt force has failed to counter the growing extremist menace that is undermining the stability of the Pakistani state, claiming hundreds of lives in terror attacks. 2007 could well be called the ‘year of the suicide bomber’, whose attacks targeted the police and the military as well as politicians… Yet, police connivance or inaction is not the primary factor behind the rise of terrorist violence. In Punjab, for instance, the police maintain updated lists of sectarian activists with criminal records, but intelligence agencies only take action after a terror attack has occurred. Police officers stress that they ‘lay their lives on the line every day in the fight against terrorism, more so than the army’, even though they are ‘nowhere near as numerous, well-equipped and resource-rich’.”
For the foregoing reason, I feel that I am entitled to invoke para. 100 of the UNHCR Handbook which states as follows:- ‘100. The term unwilling refers to refugees who refuse to accept the protection of the Government of the country of their nationality. It is qualified by the phrase ‘owing to such fear’. Where a person is willing to avail himself of the protection of his home country, such willingness would normally be incompatible with a claim that he is outside that country ‘owing to well-founded fear of persecution’. Whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. Lord Hope in the English case of Horvath [2001] MN AR 205 stated as follows when dealing with the question of protection and the standard of protection that should be provided for the citizens of any given jurisdiction:- ‘No State can guarantee the safety of its citizens. And to say that the protection must be affected suggests that it must succeed in preventing attacks, which is something that cannot be achieved. Equally, to say that the protection must be sufficient, begs the question, sufficient for what? In my judgment there must be a force in the country in question a criminal law which makes the violent attacks by 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. There must be a reasonable willingness by the law enforcement agencies that is to say the police and courts to detect, prosecute and punish offenders’.” Findings of absence of continuing threat to the applicant
‘…. there is a wider principle, being the one identified by Peart J., when he says that the decision cannot be based simply upon a gut feeling or a view based on experience or instinct that the truth has not been told. A finding of lack of credibility, it is at least arguable, must therefore be based on a rational analysis which explains why, in the view of the deciding officer, the truth has not been told.’ In the absence of extrinsic evidence tending to show that the claimed fear was not well founded when considered objectively, the tribunal member should not have speculated or engaged in conjecture in the way that she did, but rather should have proceeded to consider the applicant’s subjective credibility.”. 39. The applicant submitted that contrary to the Tribunal Member’s personal view of how the Taliban would be likely to act, there was no country of origin information before the Tribunal to suggest that once a shop had been destroyed by the Taliban that organisation would be prepared to forget about the owner who had defied them. 40. The respondent submitted that the applicant’s entire claim was linked to his ownership of the music shop. They submitted that the Tribunal was entitled to draw the inference that once the music shop had been destroyed, the applicant was no longer at risk of attack from the Taliban if he was returned to Pakistan. 41. The respondent submitted that the applicant’s entire story was linked to his past activity as a part time business-man running a music shop. They submitted that it was not conjecture to infer from the primary facts tendered by way of the applicant’s own evidence, that the only reason why the applicant was ever allegedly targeted was no longer a live issue and that therefore the applicant would not be at risk on return to Pakistan. 42. The respondents relied on the decision of Birmingham J. in M.E. v. Refugee Appeals Tribunal & Ors [2008] IEHC 192, where it was stated as follows in relation to speculation and conjecture:-
‘One’s experience of life hones the instincts, and there comes a point where we can feel that the truth can, if it exists, be smelt. But reliance on what one firmly believes is a correct instinct or gut feeling that the truth is not being told is an insufficient tool for use by an administrative body such as the Refugee Appeals Tribunal. Conclusions must be based on correct findings of fact.’ On the other hand, a Tribunal Member is not expected to accept without challenge or question every account given to him or her. Rather, he or she is expected to weigh, assess, analyse and draw inferences.” Credibility
(ii) the reason expressed by the applicant for not having applied for asylum in Turkey. 46. The applicant relies on a decision in Deogratias Mbayo Sango v. Minister for Justice, Equality and Law Reform & Ors [2005] IEHC 396, where Peart J. stated as follows:-
‘In relation to credibility, Mr Christle referred to the Diaz decision and that in Cordon-Garcia, to which I have referred and quoted relevant passages. The principles which emerge from these decisions are that a Tribunal is not entitled to make adverse credibility findings against an applicant without cogent reasons bearing a nexus to the decision, that the reasons for any such adverse finding on credibility must be substantial and not relating only to minor matters, that the fact that some important detail is not included in the application form completed by the applicant when he/she first arrives is not of itself sufficient to form the basis of an adverse credibility finding, and finally that the fact that the authority finds the applicant’s story inherently implausible or unbelievable is not sufficient. Mere conjecture on the part of the authority is insufficient, and that corroboration is not essential to establish an applicant’s credibility. As general principles I agree.’” 48. The applicant referred to the decision of Mac Eochaidh J. in F.T. v. Refugee Appeals Tribunal & Anor [2013] IEHC 16, where the issue was dealt with as follows:-
‘39. As a matter of basic principle, the failure of an asylum seeker to apply for asylum in the nearest safe country or in the first safe country to which he flees is not a bar to refugee status per se and is not necessarily inconsistent with a genuine fear of persecution. In theory, asylum seekers are entitled to choose their country of asylum. The person may, for example, wish to apply for asylum in a country where his native language is spoken, where his family or close friends have settled, or where there is a community of people from his country of origin or sharing his ethnicity or religion. The person may also wish to distance himself from incursions by authorities of his home state and he may have concerns about the true adequacy of protection (see Hathaway, The Law of Refugee Status, at p. 50). The assessment of an applicant’s credibility may, however, include an assessment of the reasonableness of any explanation given for passing through safe third countries without applying for asylum there.’ The terms of s. 11B(b) of the Refugee Act 1996, are worth bearing in mind. The section requires that a decision maker ‘shall’, when assessing the credibility of an applicant for international protection, have regard to: ‘…whether the applicant has provided a reasonable explanation to substantiate his or her claim that the State is the first safe country in which he or she has arrived since departing from his or her country of origin or habitual residence.’ It seems to me that it was not open to the Tribunal Member to state that he did not accept the explanations given by the applicant for his failure to claim asylum in France ‘per the terms of s. 11B of the Refugee Act 1996’ where no 'first safe country claim' had been made by the applicant. (I understood the reference to section 11B to mean s. 11B(b) and this was not disputed at the hearing.) There is a suggestion in the statement made by the Tribunal Member that the law requires an applicant for asylum to provide an explanation why asylum was not claimed in the first safe country encountered by the person in flight. There is no such rule of law. The provisions of s. 11B(b) of the Act are applicable where a claim is made by an applicant that Ireland was the first safe country encountered after he or she departed his or her country of origin. No such claim was made by the applicant in this case. It is, of course, perfectly permissible for a decision maker on an application for international protection to have regard to the failure of an applicant to seek refuge in a safe country encountered en route to Ireland. However, given the mandatory terms in which s. 11B of the Act is expressed (‘The Commissioner or the Tribunal … shall have regard to the following …’) it seems to me that the provision should only be cited in the connection with a credibility finding where its strict terms are met. In these circumstances I find that the Tribunal Member erred in making the above finding in respect of the credibility of the applicant.” 50. The respondent submitted that the case law relied upon by the applicant, had been overtaken by the European Communities (Eligibility for Protection) Regulations 2006. Regulation 5(3) provides as follows:-
(a) the applicant has made a genuine effort to substantiate his or her application; (b) all relevant elements at the applicant's disposal have been submitted and a satisfactory explanation regarding any lack of other relevant elements has been given; (c) the applicant's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant's case; (d) the applicant has applied for protection at the earliest possible time, (except where an applicant demonstrates good reason for not having done so); and (e) the general credibility of the applicant has been established.” 52. In the circumstances, I am of opinion that it was reasonable for the Tribunal to have regard to the fact that the applicant had not supplied any documentation relating to his music shop, which on his account had been in operation for some twelve months prior to the bombing. Nor has he supplied any documentation in relation to his stay of four days in hospital after the serious assault in June 2009. This had been raised with the applicant at the time of his s. 11 interview and he had said then that he would try to get the documentation from the hospital. 53. In relation to the s. 11B finding, the respondent states that no ground addressed the alleged unlawfulness relating to the s. 11B finding and therefore that issue was not before the court. The respondent states that even if there were such unlawfulness (which they denied) it was submitted that it would be insufficient to invalidate the decision. 54. I am satisfied that the applicant’s submission in relation to the s. 11B finding are well made. However, the error in this regard made by the Tribunal was not sufficient to invalidate the decision when read as a whole. Particularly given the findings already given herein in relation to the availability of internal relocation and State protection. It was noted that in A.A. (Pakistan) v. Refugee Appeals Tribunal & Ors (Unreported, Mac Eochaidh J., 18th September, 2013), the learned judge held that findings on credibility and State protection were in watertight compartments so that if the credibility findings were struck down, the finding on State protection stood and therefore the applicant’s case failed. The judge stated as follows at para 21 of the judgment:-
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