SK v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform

adminLeave a Comment

Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2014] IEHC 520
Nature of Proceedings:Judicial Review
Judgment Date/s:05 Nov 2014
Judge:McDermott J.
Category:Refugee Law
Keywords:Asylum, Persecution, Refugee, Refugee Law
Country of Origin:Pakistan
URL:https://www.courts.ie/acc/alfresco/91b17e6c-53d7-488b-92c8-9e5f20f91a7b/2014_IEHC_520_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was a national of Pakistan who claimed to be a Pashtun and to originate in Waziristan, part of the Federally Administered Tribal Areas (“FATA”). She claimed that when she was a child she was the subject of an arranged marriage organised by her father but she explained that her father cancelled the arrangement when the proposed groom developed a disability. She subsequently married her cousin, one TK, in 2002. He was an influential tribal leader.

She claimed that another cousin was a leader of the Taliban who had been detained with the other terrorists in Guantanamo Bay. On his release, her husband tried to ensure that his return would not lead to problems with the Pakistani authorities. Her Taliban cousin was killed by the authorities in 2007. In an act of revenge for the cancellation of the arranged marriage, the brother of the man whom she was initially supposed to marry, himself quite high-up in the Taliban, led the Taliban to believe that her deceased cousin had been betrayed by her husband. She claimed that the Taliban believed this, and said that after that her husband was attacked on two separate occasions by persons whom she surmised were the Taliban.

She then went to live in her father’s house in a place called Gomal, outside the FATA, her husband remaining in his locality.  She claimed that after ten days there, her father’s home was also attacked, and that a number of people were killed. Again, she surmised that this was the work of the Taliban. She submitted a police report in respect of this attack, which indicated that the police had investigated it.

She said that she then decided to leave the area, and relocated to Lahore, with her son, a bodyguard and a servant. She remained there for eight months. When she arrived in Lahore, she was allegedly questioned by the authorities about where she had come from and she maintained that the local school would not enrol her son on account of their origins in Waziristan. Her origins were apparently also a source of concern to the locals in Lahore and neighbours tried to pressure her landlord into evicting her from her accommodation. She said that she relocated to Karachi, where she remained for five weeks. She claimed that, in Karachi, Pashtuns were discriminated against and accused of being members of the Taliban. She eventually left Pakistan after her father paid an agent $16,000.00. She claimed to have travelled on false papers.

Having investigated her claim, the Refugee Applications Commissioner recommended that she not be declared a refugee, and its recommendation was affirmed by the Tribunal. It accepted her credibility, but rejected her claim for refugee status on the basis that she had state protection and internal relocation available to her. She challenged its decision in these proceedings.

She argued that the Tribunal failed to assess whether there was effective state protection available to her, pointing out that the Pakistani authorities had difficulty controlling the Taliban, particularly in Waziristan. She also claimed that the Tribunal failed to assess whether or not it was reasonable for her to relocate in Pakistan and applied an incorrect legal test, namely whether it would be “very difficult” for her to do so.

The court upheld the Tribunal’s decision.

Reasoning:
Insofar as state protection was concerned, it held that there was a distinction to be drawn between the helpless state of the authorities in Waziristan and conditions outside Waziristan. There was no evidence that the police had failed to investigate the attack at Gomal, which had involved several murders. There was an extensive police report on the matter. It did not follow that state protection was unavailable from the fact that the police had been unable to bring the perpetrators to justice for a period of over twelve months following the attack.

In the court’s view, that was not an unusual occurrence in police investigations, particularly where they were hampered by fear and intimidation spread by terrorist organisations and their associates, which rendered it more difficult to pursue the culprits. It held that state protection was available to the applicant and the family following the attack at Gomal and was availed of by them. It noted that the Pakistani security forces were engaged in a conflict with the Taliban, and that that was evidenced in the country of origin information. It therefore concluded that the Tribunal’s finding that state protection was available to the applicant outside Waziristan was reasonable.

It also held that the finding on internal relocation was in order, noting that she had moved to and remained safely in Lahore for a period of eight months. She had acknowledged that she was able to move about openly and that the Taliban did not appear to know where she was. In addition, the court noted that Lahore was predominantly anti-Taliban and that the authorities were quick to investigate arrivals from the Waziristan area. Whilst the Tribunal had taken the view that it was not “very difficult” for her to live there, the court held that the use of that phrase had to be considered in the overall context of the appraisal of the viability of relocation. It did not consider that the phrase, which is taken in isolation, constituted a deviation from the appropriate legal test established on the case law. It noted that the applicant had contended that it was difficult to remain in Lahore and Karachi because of discrimination amounting to persecution and that the Tribunal had not accepted that as a matter of fact.

Decision:
The court therefore refused leave and upheld the Tribunal’s decision.

Principles:

State protection cannot be said to be unavailable to an applicant simply because the police in his or her country of origin have investigated a crime, have not been able to apprehend the perpetrators, particularly where the criminals are terrorists.

A finding that internal relocation is available to an applicant for international protection will be open to a protection decision-maker where the applicant has actually relocated in his or her country of origin and not been traced there by his or her persecutors.

Go Back

Leave a Reply

Your email address will not be published. Required fields are marked *