SH, IH and SKF v Refugee Appeals Tribunal, Minister for Justice and Law Reform, Attorney General and Ireland

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Respondent/Defendant:Refugee Appeals Tribunal, Minister for Justice and Law Reform, Attorney General and Ireland
Court/s:High Court
Citation/s:[2015] IEHC 98
Nature of Proceedings:Judicial Review
Judgment Date/s:18 Feb 2015
Judge:Stewart J.
Category:Refugee Law
Keywords:Asylum, Asylum Seeker (Secondary Movement of), Persecution, Refugee, Refugee Law
Country of Origin:Pakistan
URL:https://www.courts.ie/acc/alfresco/d5e04c7e-6406-4226-be8a-30f4bff8899f/2015_IEHC_98_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicants were husband, wife and daughter. They were Pakistani nationals. The marital couple claimed to have married in 1992 and to have been persecuted since then because the husband and wife were Shia and Sunni Muslims respectively, and in marrying him, the wife had rejected an arranged marriage. The husband and wife claimed that each of them has suffered assault and their daughter had been the subject of abduction attempts. They claimed that they were unable to escape earlier owing to their limited financial circumstances constrained their ability to escape from the reign of terror. They said that they had lived in a different area of Pakistan where they were relatively safe for a number of years.

The husband’s sister resided in Ireland and they claimed that they managed to leave Pakistan with her assistance, having travelled on three-month tourist visas which were issued by the Honorary Consul of Ireland in Karachi. After they expired, they remained in the State without any lawful permission. They lived for a while near Cork and then, when their money ran out, applied for asylum.

Having investigated their claim, the Refugee Applications Commissioner recommended that they not be declared refugees. Asked why they did not seek asylum until 2010, the applicants said that they had been told to do so by a Bengali man they met. The Commissioner did not consider that to be a reasonable explanation and made a s. 13(6)(c) finding, which restricted the applicants to a paper appeal. They appealed to the Refugee Appeals Tribunal, which affirmed the Commissioner’s recommendation, on the basis of lack of credibility, and availability of state protection and internal relocation.

The applicants challenged the Tribunal’s decision in these proceedings.

As the appeal had been on the papers only, the court held that it had to examine the decision with heightened vigilance and it quashed the Tribunal’s decision.

Reasoning:
In its decision, the Tribunal had not accepted that the applicants did not have the funds or financial support to leave Pakistan earlier. The applicants alleged that the Tribunal failed to engage with the explanation given by them for not leaving Pakistan earlier than they had done. The Tribunal held that this was contrary to their evidence to the Commissioner, to whom they stated that they had bought a house in Pakistan in 2001. However, the court noted that the Tribunal did not appear to have assessed the respective costs of, on the one hand, purchasing or acquiring a home in Pakistan and, on the other hand, travelling to Ireland. The Tribunal also did not believe the applicants’ explanation for not having any title deeds in their possession. The court noted that that finding had not been made by the Commissioner and that fairness required the Tribunal to notify the applicants of any potential new finding and give them an opportunity to respond to it, either by referring the matter back to the Commissioner or reconvening the s.11 interview and/or in correspondence with the applicants and/or their legal representatives.

The court noted that the Tribunal had criticised the applicants for having returned to the area where they claimed to have been at risk of persecution. It noted that the applicants had explained why they did that and that they had emphasised that the husband had to attend a doctor there about a medical complaint. The court held that the Tribunal had failed to engage with that explanation.

The Tribunal had made an adverse credibility finding about the alleged failure of the applicants to go to the police. The court noted that the applicants had explained to the Commissioner that they had approached the police on numerous occasions from the outset and had not obtained any assistance. It held that the Tribunal failed to engage with those explanations and give a reasoned decision for rejecting them.

The Tribunal had also found that internal relocation would be available to the applicants, noting that Pakistan was a large country in terms of area and population and that the applicants had an education. The court held, however, that under case law on relocation, it was incumbent on the Tribunal to identify an area of potential relocation, put it to the applicants, consider the conditions there and assess whether or not it was reasonable for them to relocate there.

The court also noted that the applicants had furnished medical certificates in support of their claim and that there was an onus on the Tribunal to assess them and give a reasoned decision as to why they did not support the applicants’ claim.

The court held that the level of diligence and caution which had to be applied to a paper appeal process, and the careful consideration that had to be given to the documentary evidence upon which the appeal was based, were lacking in this case.

Decision:

The court therefore granted leave and, the matter being telescoped, decided to quash the Tribunal’s decision.

Principles:

Where an appellate decision-maker on an international protection is dealing with an appeal on the papers, he or she must give careful consideration to the evidence, including country of origin information and medical evidence.

When deciding a claim, a decision-maker must weigh any explanations given for apparent inconsistencies in their behaviour or their claim and, if rejecting it, give reasons.

When assessing the viability of internal relocation, a decision-maker may occasionally have to identify a specific area of relocation and examine inter alia whether or not it would be reasonable for the applicant to move there to escape persecution or serious harm.

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