High Court quashes IPAT decision for failing to apply correct internal relocation test under Article 8(1) Directive 2004/83/EC.

[2018] IEHC 497

THE HIGH COURT

JUDICIAL REVIEW

[2017 No. 1021 J.R.]

BETWEEN

A.A. (PAKISTAN)

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 31st day of July, 2018

1. The applicant is a citizen of Pakistan. He claims that he suffered assaults from an uncle in relation to a property dispute in 2005

and again in 2012. He gave some contradictory evidence in relation to the situation thereafter, having told the IPO that threatening

phone calls were made when he was in the U.K. but telling the tribunal that there had been no contact since 2012.

2. On 22nd July, 2012, he moved to the U.K. on a student visa. On 28th September, 2015, he left the U.K. for Ireland after the visa

expired. He then sought asylum, which was refused by the IPO. On 25th August, 2017, he appealed to the IPAT. On 11th December,

2017, the IPAT rejected the appeal in a decision by Mr. Nicholas Russell. The decision accepted some, although not all, of the material

facts of the claim, particularly that the applicant had been assaulted by an uncle in relation to a property dispute. The tribunal

member held that no Convention nexus had been established, so state protection or international relocation did not arise. The asylum

claim was rejected and that aspect of the decision is not challenged.

3. As regards the subsidiary protection claim, the tribunal member concluded that, given that it was put to the applicant that he

could move to Karachi, a city of 20 million people, and could enjoy safety and anonymity there, and given that the tribunal was not

convinced by the applicant’s response, it was considered that an internal relocation option existed.

4. On 21st December, 2017, I granted leave in the present proceedings. The relief sought is partial certiorari of the decision of the

IPAT at paras. 7.4 and 8.1 in relation to subsidiary protection. The applicant has structured the relief sought in that way in a

(legitimately tactical) attempt to preserve the favourable parts of the ruling intact and to remit the unfavourable parts back to the

tribunal. As discussed in H.A.A. (Nigeria) v. Minister for Justice and Equality [2018] IEHC 34, the jurisdiction to partially quash a

decision is “consistent also with this court's increasing flexibility of response and remedy in the ever-developing field of judicial

review”, per Simon Brown J. (as he then was) in R. v. Inner South London Coroner, ex parte Kendall [1988] 1 W.L.R. 1186 at 1194:

see also Michael Fordham, Judicial Review Handbook, 6th ed. (Oxford, 2012), para. 43.1.6, pp. 477-478.

5. I have received helpful submissions from Mr. James Buckley B.L. for the applicant and from Ms. Diane Duggan B.L. for the

respondents.

Alleged irrationality, including relying on oral evidence by the presenting officer

6. I do not consider that the presenting officer’s questions can be characterised as giving evidence. It is perfectly reasonable for the

presenting officer to raise an issue as to whether the applicant could live in Karachi as a large city, or indeed any other large city.

There may have been an error as to whether the population of Karachi was 27 million as put or 20 million as appears in the IPAT

decision, but any error is not material to the point under discussion.

Alleged breach of fair procedures, where internal relocation was not an issue before the IPO, where submissions on it were

not invited and the applicant was not made aware that it would be an issue.

7. This complaint of breach of fair procedures is fundamentally misconceived. The applicant put the subsidiary protection refusal in

issue by appealing against it and therefore inherently opened up the question of internal protection or internal flight. An applicant

does not need to be specifically notified of such a matter as it is an issue that arises automatically from the nature of appealing a

subsidiary protection refusal. The applicant was put on notice in any event by questions posed at the hearing. That complies with the

requirement of K.D. (Nigeria) v. Refugee Appeals Tribunal [2013] IEHC 481 [2013] I.R. 448 per Clark J., at para. 28(11).

Alleged failure to have regard to local circumstances, personal circumstances and precise and up-to-date country

information

8. To some extent this duplicates other grounds insofar as the complaint made relates to country information. A detailed investigation

of conditions in the proposed place of internal relocation can be explored in oral evidence. A detailed dossier of country information

regarding that proposed place does not have to be narratively discussed provided there is before the decision-maker some appropriate

country material, provided there is due notice of the point being made (including notice that is given by putting the point to the

applicant at the hearing) and provided that the correct test is applied. The tribunal decision should not be condemned for a failure to

engage in detailed narrative discussion about conditions in the proposed locus of internal relocation.

9. A question is raised as to whether the country information before the IPO was also before the IPAT. It is perhaps implied in a letter

from the CSSO of 12th March, 2018 that the original country reports were not so forwarded, but the wording of that letter may have

been based on the mistaken belief that because the reports are mentioned in the IPO report they were before the court in the

present proceedings. It seems not all country information is actually exhibited in these proceedings but I do not believe that the letter

of 12th March, 2018 was intended to convey that material before the IPO was in fact not before the IPAT.

10. Ms. Duggan has since clarified that the IPAT got the whole file from the IPO so whatever was before the latter was also before

the former. A letter of 28th August, 2017 from the IPAT to the IPO acknowledging receipt of the original files has been produced.

Thus no point under this heading of lack of consideration of relevant country material has been made out.

Alleged failure to apply the correct test

11. The correct test involves considering whether it is reasonable for the applicant to move to Karachi. Article 8(1) of the

qualification directive 2004/83/EC provides that Member States may determine that an applicant is not in need of international

protection if in a part of the country of origin there is no well-founded fear of persecution or serious harm, “and the applicant can

reasonably be expected to stay in that part of the country”. That is reinforced by s. 32(1)(b) of the International Protection Act

2015, which states that the tribunal must consider that the applicant “can reasonably be expected to settle there”. There is some

discussion of this in Hailbronner and Thym in EU Immigration and Asylum Law, 2nd ed. (C.H. Beck/Hart/Nomos, 2016) at p. 1163, Part

D III by Judge Harald Dörig, to the effect that there is both an objective element and a subjective element of this test. The objective

element involves an assessment of whether a reasonable person in the situation of the applicant could stay in the place concerned.

The subjective element involves consideration of that in terms of the applicant’s individual circumstances.

12. The tribunal just does not ask this question. It is well-established that a decision-maker must pose the correct question: see per

Clarke J., as he then was, in Rawson v. Minister for Defence [2012] IESC 26 (Unreported, Supreme Court, 1st May, 2012). Failure to

do so can, and in this case does, give rise to grounds for certiorari.

Order

13. For these reasons there will be:

(i) an order of certiorari removing for the purpose of being quashed paras. 7.4 and 8.1 of the IPAT decision of 11th

December, 2017; and

(ii) an order remitting the balance of the applicant’s subsidiary protection application as it relates to the internal

relocation issue to the same tribunal member, Mr. Nicholas Russell, for consideration in accordance with this judgment.