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AN v Refugee Appeals Tribunal and Others

Applicant/Plaintiff: A.N.
Respondent/Defendant: Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform, Ireland and the Attorney General
Citation/s: [2015] IEHC 699
Nature of Proceedings:Judicial Review
Court/s:High Court
Judgment Date/s: 16 October 2015
Judge: Faherty J.
Category:Refugee
Keywords:Minor; Credibility; Internal relocation; State protection
Country of Origin: Pakistan
URL: http://www.courts.ie/Judgments.nsf/0/1AD919DA44C9DC0B80257F14004162D8
Geographical Focus:Ireland

Facts:
The applicant was a national of Pakistan who was born in Ireland to Pakistani parents. Her mother claimed asylum on her behalf. She said that the applicant’s life was at risk in Pakistan because her mother and her brothers did not approve of her marriage to her father. The applicant’s parents had both unsuccessfully claimed asylum, their applications failing on the ground of lack of credibility.

Having investigated her claim, the Refugee Applications Commissioner made a negative recommendation on it. In doing so, it relied on the fact that her parents’ had unsuccessfully applied for asylum. The applicant did not take issue with that in her notice of appeal, contending simply that she should be entitled to the benefit of the doubt. However, the recommendation was affirmed by the Refugee Appeals Tribunal, whose decision the applicant challenged in these proceedings.

The Tribunal had found that nothing in the evidence would lead it to a conclusion that the applicant was entitled to protection. It also found that internal relocation was available to her.

The court quashed the Tribunal’s decision.

Reasoning:
The court rejected an argument that there was unfair procedures in that the Commissioner’s presenting officer had furnished the Tribunal at the hearing with the decisions on the applicant’s parents’ claims. It was clear from the contents of the Commissioner’s negative decision that he was aware that the parents’ claims had been rejected on appeal and the applicant’s legal representatives were therefore on notice that the presenting officer might seek to submit them at the appeal hearing. They could have obtained the mother’s Tribunal decision from her or from the legal representatives who acted for her at her hearing.

However, the court held that it was not satisfied that the applicant’s claim had been properly rejected, there being no specific reference to the factors which influenced the Tribunal in coming to its decision. The factual background set out in her parents’ claims, coupled with the Convention ground advanced on her behalf, and the submission that her credibility should be accepted, all required due consideration. In the court’s view, the Tribunal was obliged to set out what factors led to a rejection of the assertion that she was entitled to the benefit of the doubt, whether by reference to the substantive factors in the parents’ decisions or otherwise. It held that it had therefore erred in failing to rationalise its finding that there was” no basis” that the applicant would be in fear of persecution if she were to return to Pakistan. Such an approach was further warranted by the fact that a different Tribunal Member had decided the parents’ claims.

The court rejected the applicant’s argument that the Tribunal was not entitled to apply a presumption of state protection and require clear and convincing evidence of lack of such protection from the applicant. The claim that no complaint had been made to the Pakistani police by the applicant’s mother was something which the Tribunal was entitled to take into account in deciding whether or not that onus had been discharged. The court then turned to the evidence before the Tribunal on the matter of state protection, comprising two reports concerning treatment of women in Pakistan.

The court held that the nature of the fear advanced by the applicant’s mother was encompassed by one of the reports which indicated a reluctance to investigate on the part of the Pakistani authorities. The court noted that there had not been any consideration of the country reports in the decision. It held that they had potential to assist the Tribunal in deciding whether or not the onus of showing lack of state protection had been discharged, and to negate the mother’s failure to make a complaint to the police about her fears. It was incumbent on the Tribunal to have had regard to the information and, if it wished to disregard it, to give reasons for doing so.

The court held that the question of internal relocation had not been properly determined by the Tribunal. On behalf of the applicant, it had been maintained that relocation to Karachi would not be an option, as her father had a business in another city.

There was no mention of the applicant’s father or his circumstances in the context of the discussion by the Tribunal of internal relocation option, which meant that its conclusion that it would be reasonable to move them was defective.

Decision:
The court therefore quashed the Tribunal’s decision.

Principles:

A protection-decision maker dealing with a minor’s claim should set out on a reasoned basis the factors which have led it to reject that claim in its decision.

In deciding that internal relocation is a viable option for a minor applicant, regard should be had to the circumstances of its parent(s) and whether it would be reasonable for them to move the proposed place of relocation with the child.


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Key European case law

A Member State is obliged to examine an asylum application if transfer would expose the applicant to a serious risk of a violation of fundamental rights

Court of Justice of the EU ruling on the transfer of asylum seekers under the EU Dublin Regulation Cases C-411/10 and C-493/10 M.E.


McCarthy: Rights of EU citizens to regularise the residence of their non-EU spouse

Court of Justice of the EU judgment in the case of McCarthy v Secretary of State for the Home Department (in UK).


Zambrano: Rights of non-EU parents of a child with European citizenship to live in the EU

Court of Justice of the EU judgment in the case of Zambrano v Office national de l’emploi (in Belgium).

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