High Court dismisses appeal against IPAT refusal of subsidiary protection for Shia Muslim fearing persecution in Pakistan.

[2019] IEHC 520

THE HIGH COURT

2018 No. 916 JR

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED),

AND IN THE MATTER OF THE INTERNATIONAL PROTECTION ACT 2015

Between:

H

Applicant

– and –

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND

IRELAND

Respondents

JUDGMENT of Mr Justice Max Barrett delivered on 11th July, 2019.

1. On 01.12.2017, Mr H, a national of Pakistan and a practising Shia Muslim, made a claim for international protection on the basis

that if returned to Pakistan he would be subjected to threats or physical harm by virtue of his religion and would not be able freely to

profess his religion. By letter of 17.05.2015, he was advised that it had been recommended that he be given neither a refugee

declaration nor a subsidiary protection declaration. He appealed that decision to the International Protection Appeals Tribunal,

essentially on the basis that he has a well-founded fear of persecution in Pakistan by reason of his religion. By letter of 03.10.2018,

he was advised that he had been unsuccessful in that appeal. The within proceedings have ensued. Three lines of criticism were

levelled at the decision of the IPAT (the ‘Impugned Decision’). Thus:

(1) criticism was made of the suggestion in the Impugned Decision that Mr H could visit his family in a named

place in Pakistan where they currently reside. The court respectfully declines to consider this criticism. It is not in the

statement of grounds and was not the subject of leave.

(2) criticism was made that the Impugned Decision does not indicate whether jurisdiction is derived from

s.32(1)(b) of the International Protection Act 2015 or otherwise (which section introduces a concept of ‘settle’

when addressing the availability of internal relocation which, it is alleged, differs from the concept of ‘stay’ in

reg.13(5) of the EU (Subsidiary Protection) Regulations 2013 and Art.8(1) of Council Directive 2004/83/EC),

and without the IPAT indicating its views on this point. The court respectfully declines to consider this criticism. It is

not in the statement of grounds and was not the subject of leave.

(3) criticism was made that the Impugned Decision (i) in finding at para.5.12 that country of origin information

(COI) does not suggest widespread societal discrimination against Shia is irrational and based on a preferential

regard to the country reports before the IPAT, (ii) in its findings at paras.5.19-20 that the increased security

presence in a named city (the ‘Named City’) would allow Mr H freely and openly to practise his faith in that city

upon relocation is irrational and based on a preferential regard to the country reports before the IPAT (iii) in

finding that Mr H (and, at para.5.21, his wife and children) can relocate to the Named City was made without

assessment of various relevant matters, and (iv) in the determination that there is no risk from State actors

and effective State protection in the Named City from non-State actors was irrational and based on a

preferential regard to the country reports before the IPAT and made without fair assessment of all factors.

2. As to criticisms (1) and (2) the court declines to consider these criticisms. Neither features in the statement of grounds and

neither was the subject of leave.

3. Turning to criticism (3), in this regard the court was referred, inter alia, to (i) KD (Nigeria) v. The Refugee Appeals Tribunal and

anor [2013] IEHC 481, in particular to the consideration at para.28 as to the principles that apply to an assessment of an internal

relocation alternative, (ii) DVTS v. MJELR [2008] 3 IR 476, esp. 496-7, and (iii) MAUH (Pakistan) v. MJE [2012] IEHC 572, esp. para.

26. The following points might be made regarding this case-law:

– as to (ii), two points might be made. First, the COI in that case contained conflicting information. In this case, when it

comes to the Named City to which relocation is considered plausible, there was no conflicting information before the IPAT

(and despite a thorough analysis at the hearing of the within application no such conflicting information was identified).

Second, insofar as there was (and there was) other conflicting COI information before the IPAT – though not about the

Named City – the decision-maker proceeded exactly as contemplated in DVTS, 497, with a consideration of the conflict

and a reasoned decision for such conclusions as are reached in this regard (see Impugned Decision, para.5.11).

– as to (iii), para.26 is concerned with the position of the Ahmadiyya community, not with Shias. However, even if the

court were to accept (and it does) “that the concept of religious freedom cannot be confined to private conscience to

the exclusion of public manifestation of religion” (MAUH, para.26, quoting from the Opinion of AG Bot in Bundesrepublik

Deutschland v. Y (Case C-71/11), Z (Case C-99/11)), one of the reasons why the IPAT accepts the plausibility of

relocation to the Named City is because such confinement/exclusion would not now be required there (see Impugned

Decision, para.5.20).

4. As to criticism (3) more generally, (1) the IPAT’s decision is duly reasoned and justified, to the extent even of making some findings

that favour Mr H, albeit that he is disappointed with the ultimate conclusion, (2) there is (a) a striking regard to the various

information that was before the IPAT and (b) nothing in the reasoning of the IPAT that is either irrational or unreasonable, (3) when it

comes to the assessment of the position for Shias that pertains in the Named City, (a) this assessment is not controverted in the

material that was before the IPAT, (b) it was not notably challenged on affidavit, (c) despite a thorough trawl by counsel for Mr H at

the hearing, he was unable to point to any contradictory information concerning the Named City, and (d) is an assessment which

appears both reasonable and rational.

5. Having regard to all of the foregoing, the reliefs sought must respectfully be refused.