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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.R. -v- The Minister for Justice & Ors [2013] IEHC 243 (09 May 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H243.html Cite as: [2013] IEHC 243 |
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Judgment Title: M.R. -v- The Minister for Justice & Ors Neutral Citation: [2013] IEHC 243 High Court Record Number: 2008 1295 JR Date of Delivery: 09/05/2013 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 243 THE HIGH COURT JUDICIAL REVIEW [2008 No. 1295 J.R.] BETWEEN M.R. APPLICANT AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND MICHELLE O’GORMAN SITTING AS THE REFUGEE APPEALS TRIBUNAL RESPONDENTS JUDGMENT of Mr. Justice McDermott delivered on the 9th day of May, 2013 1. This is an application for relief by way of judicial review in which the applicant seeks an order of certiorari and various declarations challenging the decision of the second named respondent (“Refugee Appeals Tribunal”) dated 20th October, 2008, affirming the recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. The initial application sought leave to apply for judicial review by notice of motion dated 18th November, 2008. Thereafter, the parties agreed that the proceedings could be dealt with by way of a telescoped hearing pursuant to O. 84 of the Rules of the Superior Courts whereby the leave to apply for judicial review and any substantive hearing required thereafter could be dealt with at the same time. Both parties furnished written legal submissions and a draft notice of opposition was also furnished by the respondent in the event that leave to apply for judicial review were granted by the court, in which circumstances the draft notice would be regarded as the notice of opposition in the substantive hearing. Background Questionnaire 4. He claimed that a lot of people came to his family’s prayer room and that he converted two local families to Ahmadiyyat. Local Muslims resented his proselytism and incited people against the Ahmadi saying that they were infidels. He claimed that posters were put up against him on walls on the streets around his area. He claimed that he was threatened many times that he would be killed and that if he had sought help from the police he would have been punished for practising his religion. Domestic litter was thrown onto the roof of the family home, their windows were broken on a number of occasions and they were subjected to verbal abuse. 5. He described an occasion when “many Mullahs gathered people and came outside our house”. His father asked the Mullahs not to do this, but they refused to listen to him and he claimed that it:-
6. He also described how eight Ahmadis were murdered while offering Morning Prayer in a nearby prayer centre in Rawalpindi. Section 11 Interview 8. In the course of the s. 11 interview the applicant now stated that he did not succeed in completing the conversion of the two families referred to in the questionnaire. He had previously claimed that as a result of the conversions posters had been put up against him in the neighbourhood and that his life had been threatened. He stated that conversion meant that you take an oath in the mosque, but that the families did not reach that stage. However, posters were distributed threatening his life because the two families had shown so much interest in the Ahmadiyya faith. He claimed to have been sent a copy of the poster from Pakistan but he had never received it. He blames the postal authorities in Pakistan for this. The Decision of the Refugee Applications Commissioner 10. The Commissioner considered that a number of issues raised questions concerning the credibility of the applicant. Firstly, he noted that the family had convened prayer meetings in the house for five to six years prior to the incidents in 2007. Secondly, since the two families who were the subject of the attempted conversion only began to visit the house in January 2007, it did not seem credible to the Commissioner that the local Muslim Mullah would launch a campaign of abuse against the applicant and his family in that month. Thirdly, the applicant had denied making any complaint to the authorities in respect of harassment in the questionnaire, but had indicated in the interview that he and his father had attended at the police station and made a number of reports without difficulty between January, 2007 and June, 2007. The Commissioner concluded that he and his father appeared to have the cooperation of the police in respect of those incidents and it was difficult to accept his testimony regarding the arrest and detention. Fourthly, the Commissioner did not find it credible that the police came to his uncle’s house in August, 2007 because of information from police in Rawalpindi. He appeared to have cooperated with the Rawalpindi police and moved away. Therefore, the Commissioner did not think it credible that the police would come looking for him in a city 160 miles away. 11. As regards state protection, it appeared to the Commissioner that the state services were responsive to him and his father’s complaints, but the response may not have been adequate as there was no investigation. However, the account of his being arrested and detained for three days was not thought to be credible. 12. As regards internal relocation, the applicant claimed that in January, 2007 he moved to his aunt’s house in Wazirabad for two to three days because he was being tormented so much that he needed to clear his head. He returned to Rawalpindi because his aunt did not get on with his father. Notice of Appeal
In June, 2007 the appellant and his father were attacked and the appellant injured. He sought treatment at a local hospital, but was refused same, on the basis that he was Ahmadi. The hospital told him he required to make a police report, before receiving treatment, but the appellant knew this was not the case and was in effect further discrimination. (Q. 73 of the appellant’s interview, incorrectly states that the appellant received treatment at hospital). The appellant returned home, where he received treatment from his mother. He then attended at the police station to make a FIR (police report). He was told the local Mullahs had already taken out a FIR against him and was detained. This represented the second occasion he had gone to the police; the first having been in February, 2007. The appellant was released after three days when his father paid money to the police to secure his release.” 14. In addition, country of origin information was submitted including a UK Parliamentary Human Rights Group Report of January, 2007 in respect of the City of “Rabwah” entitled “Rabwah: A Place for Martyrs? (Parliamentary Human Rights Group – January 2007”). Tribunal Hearing 16. The applicant, in evidence, outlined how he and his family always had difficulties in Pakistan because of their Ahmadiyya religion. He had not been allowed to attend Islamic classes when he attended school and he said that he was not allowed to greet people using the Ahmadiyyas’ Muslim greeting. He claimed that he and his family were harassed by Muslims and that they had their windows broken and garbage thrown on their roof. He left school early due to harassment from other students. He stated that he then started religious preaching. He outlined how in January, 2007 five or six Mullahs arrived at the applicant’s home and tried to force the applicant’s family to become Muslims. They told the applicant, his father and his brothers that they should stop preaching or they would be killed. The family also received threatening phone calls. Nevertheless, he claimed that he continued to preach and reported the incident to the police one or two weeks after the Mullahs had come to his home, but no action had been taken. He went to Wazirabad and stayed there for two or three days and then returned to his parents in Rawalpindi. 17. The applicant claimed that the general abuse continued after he returned home. He then described the incident in which it was claimed that fifteen to sixteen Mullahs came to his family home with sticks shouting that they were going to kill all of the applicant’s family. He claimed he, his father and brothers were abused. His right hand was injured. He claimed he went to hospital but was not given any treatment as he was Ahmadi. His mother treated his hand and later he went to the police station with his father. He claimed that he lodged a complaint against the Mullahs but they had already lodged a complaint against him as a result of which he was imprisoned for three days. His father was not arrested as the applicant was the one who was injured. He claimed the fight had been between him and the Mullahs during which his father sat to one side. He also claimed that “the police tried to beat him and he was badly treated” while in custody. His father paid a bribe to obtain his release. He then went to Lahore and stayed with his uncle for three months. 18. The applicant stated that he had no problems in Lahore but his uncle did as his son had been murdered because of his Ahmadiyya faith. He stated that he did not feel safe in Lahore as the Mullahs were strong and there was a threat to the Ahmadi community. His father arranged for his travel to Ireland via Abu Dhabi. 19. In the course of his evidence a number of matters were raised with him. Firstly, he explained that he had not stated in the questionnaire that he had reported the Mullahs to the police because he did not understand the question properly: he thought it was asking whether he sought help from the government rather than the police. Secondly, he had also omitted in his testimony, until prompted in cross examination, that the police were looking for him in Lahore as stated in his interview. He said that he would have given the information if asked. Thirdly, it was pointed out to the applicant that he had failed to mention in evidence in chief the fact that posters were distributed against him following his attempted conversions in Rawalpindi. He claimed his memory may have been affected by a bout of typhoid fever. 20. Fourthly, it was put to him that his birth certificate gave his religion as “Islam” and there was no reference to him being an Ahmadi. It was suggested to him that if he were non-Muslim he would not be designated as having the Islamic faith by the state on his passport. 21. Fifthly, he had previously stated that his father had been involved in the fight in June, 2007 but now said he had stepped to one side and had only been involved in a verbal argument. 22. The applicant informed the Tribunal that his father continued to work as an electrician from home and that his mother continued to sell homeopathic medicines from their home in Rawalpindi. His brother attended college in Rawalpindi and his other brother was in college in Satlay. His sister attended a government Islamic school. Tribunal Decision 24. The Tribunal also found that a number of discrepancies arose in relation to central aspects of the applicant’s claim and that his credibility was called into question as a result. In particular, the Tribunal highlighted the following matters:-
(ii) At the appeal hearing the applicant said that his father was not involved in the fight in June, 2007 and was therefore not arrested. It was claimed the fight was between the applicant and 15 or 16 Mullahs. There was a discrepancy in the accounts given as to whether his father was or was not involved in the fight with the Mullahs; (iii) At the appeal hearing the applicant stated that five or six Mullahs came to his house in January, 2007 and threatened the applicant and his father that they should stop preaching or they would be killed. However, in the interview the applicant only referred to a local Muslim priest coming to his home and shouting abuse at the family. The applicant said that this discrepancy was the result of an interpreter’s mistake. It was noted by the Tribunal that the applicant had made reference to the local Muslim priest in the singular on a number of occasions; (iv) At the hearing the applicant stated that after the June, 2007 incident he went to hospital but was denied treatment due to the fact that he was Ahmadi. In the interview he claimed that after that incident he had received medical treatment with his father at the hospital. This also was blamed on an interpreter’s error; (v) The applicant initially gave no evidence at the appeal hearing that police were looking for him in Lahore or that posters seeking his death had been distributed in Pakistan. The applicant, though asked on a number of occasions about his difficulties, did not mention these matters until their omission was pointed out to him by the presenting officer. He stated he would have given the information if he had been asked about it; and (vi) The Tribunal did not accept that if the applicant were fleeing Rawalpindi because of his Ahmadiyya faith he would have gone to the house of his cousin who had recently been murdered for the same reason. 25. In this case the Tribunal heard the applicant’s evidence and reached a determination on credibility following a careful analysis of the different accounts which he had furnished in the course of the asylum application process. In this case there is very little personal documentation produced by the applicant apart from his birth certificate submitted from Pakistan. There is other documentation referred to in the Refugee Applications Commissioner’s report which was regarded as supporting the applicant’s claim that he was an adherent to the Ahmadiyya faith. There is considerable country of origin information indicating that Ahmadis are subject to discriminatory laws in Pakistan and discrimination by government officials. It is also clear that they are the object of vilification and incitement by other Muslim groups. They have also been the subject of violent attacks because of their religion. Thus, there is a substantial body of supporting evidence suggesting that the events described could have happened. The applicant’s story is, therefore, consistent with the known situation in Pakistan. 26. Article 4 of Directive 2004/83/EC (known as the Qualification Directive) provides that member states must assess an application for international protection on an individual basis and must take into account all relevant facts as they relate to the country of origin when making the decision “including laws and regulations of the country of origin and the manner in which they are applied”. 27. As stated by Cooke J. in I.R. v. the Refugee Appeals Tribunal [2009] IEHC 353:-
(4) The assessment of credibility must be made by reference to the full picture that emerges from the available evidence and information taken as a whole, when rationally analysed and fairly weighed. It must not be based on a perceived correct instinct or gut feeling as to whether the truth is or is not being told. (5) A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear legitimate connection to the adverse finding. (6) The reasons must relate to a substantive basis of the claim made and not to minor matters or to facts which are merely incidental in the account given. (7) A mistake as to one or even more facts will not necessarily vitiate a conclusion as to lack of credibility provided the conclusion is tenably sustained by other correct facts. Nevertheless, an adverse finding based on a single fact will not necessarily justify a denial of credibility generally to the claim. (8) When subjected to judicial review, a decision on credibility must be read as a whole and the court should be wary of attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination in disregard of the cumulative impression made upon the decision maker especially where the conclusion takes particular account of the demeanour and reaction of an applicant when testifying in person. (9) When an adverse finding involves discounting or rejecting documentary evidence or information relied upon in support of a claim and which is prima facie relevant to a fact or even pertinent to a material aspect of the credibility issue, the reasons for that rejection should be stated. (10) Nevertheless, there is no general obligation in all cases to refer in a decision on credibility to every item of evidence and to every argument advanced, provided the reasons stated enable the applicant as addressee and the court in exercise of its judicial review function, to understand the substantive basis for the conclusion on credibility and the process of analysis or evaluation by which it has been reached.” 29. In considering how the issue of credibility was determined by the Tribunal, the court on judicial review must examine the process by which the determination was made and whether it is legally sound. It is not the court’s function to substitute its own decision on credibility for that of the decision maker. In cases of this kind in which a challenge is made to the adverse findings on credibility on the basis of unreasonableness or irrationality, it must carefully examine the elements relied upon in reaching the conclusion, particularly in cases in which a claim is made based entirely on the applicant’s account of events which is in itself unsupported by evidence independent of the applicant. It is clear that the applicant’s contention that he was Ahmadi was capable of acceptance because much of the information that he gave in respect of the tenets, leaders and organisation of his religion was verifiable independently, and his claim was supported by the Ahmadiyya Muslim Association UK. However, the difficulty for the Tribunal was that the further claims made by him in respect of the events at the core of his claim of persecution, namely that he had to flee for his life in September, 2007 are not subject to the same type of independent verification. In those circumstances the decision maker, though in receipt of country of origin information supporting objectively the plight of the Ahmadis in Pakistan, nevertheless, was obliged to consider the personal circumstances and claims advanced by the applicant, in order to determine whether he had a real subjective fear of persecution. 30. The court is satisfied that the decision maker was entitled to assess the applicant’s credibility by examining any significant inconsistencies in the story told by him at the various stages of the asylum process. Grounds of Application Conclusion 33. Furthermore, the court is not satisfied, as contended by counsel for the applicant, that the only reason for the refusal of the claim was based on the Tribunal’s determination in respect of internal relocation. This is a decision which is based substantially on the applicant’s lack of credibility. 34. The Tribunal, having determined that the applicant’s subjective fear of persecution was not supported by the evidence, then considered “without prejudice” to that finding whether the applicant had the alternative of relocation within Pakistan. This was considered in the context of the following finding:-
84. We consider that the risk today on return to Pakistan for Ahmadis who propagate the Ahmadi faith falls well below the level necessary to show a real risk of persecution, serious harm or ill-treatment and thus to engage any form of international protection. 85. It may be, as the Tribunal said in IA & Ors that in some individual cases the level of risk can be shown to be sufficiently enhanced on the particular facts to indicate that that individual cannot be returned safely to their home area. Whether or not there is an internal relocation option, either to Rabwah or elsewhere in Pakistan, will then be a question of fact in relation to that individual. Rabwah is no safer than elsewhere in Pakistan for Ahmadis, but the question of whether it is an appropriate internal relocation option for an individual Ahmadi will always depend on the particular circumstances and facts of that individual’s situation.” 36. The court has also had regard to the decision of Clark J. in S.R. (Pakistan) v. Refugee Appeals Tribunal & Ors [2013] IEHC 26. In that case the applicant sought to quash a decision of the Refugee Appeals Tribunal. It was agreed by both sides that he was a member of Ahmadi faith who had come to Ireland on a student visa. Subsequently, he returned on a number of occasions to Pakistan. The applicant sought to quash the decision as he alleged that he had suffered persecution including violence by reason of his religion. Members of his family continued to live in Pakistan in Rabwah without harm and he had lived in Ireland for five years before claiming asylum. The respondent claimed that these facts were inconsistent with a fear of persecution. The Refugee Applications Commissioner made a negative recommendation on his application for asylum because he was an “unexceptional” Ahmadi and that it was, therefore, unlikely that he would be targeted and persecuted if returned to Pakistan. This decision followed the approach of the UK AIT outlined above which concluded that although there were Ahmadi victims of violence, they were few in number and that discrimination did not equate to persecution. On appeal, the Tribunal concluded that the applicant’s account of persecution was not credible. The applicant was from a very prominent family of Ahmadis. He claimed that he had been attacked and severely beaten. He gave a description of the pervasive legal and social discrimination against Ahmadi in Pakistan and the high degree of intolerance fostered by extreme Islamic groups. He also gave an extensive account of the discrimination against him in his education and even his sporting life. 37. The court concluded that the Tribunal erred in describing the applicant as an “unexceptional” Ahmadi who had no record of active preaching and in finding that he was a person in respect of whom there was no real risk if returned to Pakistan. The Tribunal had also concluded that he had no particular profile within his faith and had no history of ill-treatment in Pakistan and further, had no particular feature that would attract added risk, for example, by being a convert to the Ahmadi faith. 38. The court concluded that S.R. was quite distinct from the “unexceptional” Ahmadi described in the UK Authority relied upon because:-
39. However, it is also clear from the S.R. judgment that the prevailing conditions for the Ahmadi in Pakistan have deteriorated since 2008 for the reasons set out by Clark J. in S.R. as follows:-
41. It is clear from the judgment of Clark J. in S.R. that further country of origin information in respect of the plight of the Ahmadis in Pakistan has become available since 2008. That is information which this Court cannot consider and apply because of the limitations that exist in respect of the jurisdiction of the court on an application for judicial review. It does not preclude reliance upon the same material in any further consideration of these matters that may arise on an application for subsidiary protection or humanitarian leave to remain in the state. Indeed, any reasonable consideration of the applicant’s case would have to take account of the worsening treatment of the Ahmadi in Pakistan as summarised in the judgment of Clark J. in S.R. Conclusion |
