High Court quashes IPAT decision on certiorari grounds regarding unmarried mother's fear of persecution in Pakistan.

[2019] IEHC 548

THE HIGH COURT

2018 No. 920 JR

Between:

Y

APPLICANT

– AND –

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

JUDGMENT of Mr Justice Max Barrett delivered on 17th July, 2019.

1. Ms Y, a national of Pakistan, is a sur place asylum-seeker. The IPAT has made a decision refusing to grant her a declaration of

refugee or subsidiary protection status and Ms Y seeks to challenge that decision. Ms Y has two daughters (minor children) who were

included in the decision to refuse her international protection. It is her relationship to those children that is at the heart of the within

application. Both of the children are non-marital children, born in Ireland. Ms Y is concerned that if she is returned to Pakistan, she

will be treated as an outcast for having had children outside marriage; her children too, she claims, will likewise be treated as

outcasts and exposed to all manner of discrimination.

2. Turning to the Impugned Decision, a number of difficulties present. Under the heading “Objective Basis”, the IPAT offers three

reasons for reaching the conclusion that “[T]here is not a reasonable chance that if she [Ms Y] were to be returned to her country

of origin she would face a well-founded fear of persecution”:

Reason 1: “The Appellant left Pakistan to study in the UK…[when she was] 33 years of age….The Appellant was not born

in Pakisan but moved there with her parents in her teens, aged 15 years approximately. This means she spent a

considerable period of time in Pakistan without incident…whilst pursuing education up to and including a Masters…whilst

at the same time working for 15 years on a self-employed basis as a teacher from home. Most importantly, there has

been no evidence of past persecution by the Appellant whilst in Pakistan by any state authority or by her community or

society at large in her home area of [place stated]…Consequently, there is no presumption of future harm against the

Appellant.”

Court Note: While this reason may make sense concerning another aspect of Ms Y’s application that is not the subject of

this judgment, viz. her sexuality, it makes no sense when it comes to her being the mother of two children outside of

marriage. Those children were only born in Ireland, so there would be no evidence of past persecution: they did not exist

during Ms Y’s past in Pakistan.

Reason 2: “There is general societal harm against women from available current reputable COI as already cited and

elsewhere and Pakistan’s human rights observance leaves much to be desired. However, those failings are not judged by

the Tribunal to constitute persecution of a high enough level to qualify for refugee status. They are acts of omission

rather than commission by the Pakistan authorities. The Appellant does not fear any actors of harm from the State or

community, and she has not experienced any discrimination in the past”.

Court Note: Again, while this reason may make sense concerning another aspect of Ms Y’s application that is not the subject of this

judgment, viz. her sexuality, it makes no sense when it comes to her being the mother of two children outside of marriage. Those

children were only born in Ireland, so there would be no evidence of past persecution: they did not exist during Ms Y’s past in

Pakistan. Additionally, the notion that Ms Y “does not fear any actors of harm from the State or community” is not borne out by,

e.g., the s.35 report, which reads, inter alia, as follows:

“Q.58 The other reason that you are afraid to return to Pakistan is that you have had children outside of wedlock.

Is that correct?

A. Yes….

Q.61 Would it be fair to say that you are now much older…and that you would be able to take much better care of

yourself and your daughters through, for example, moving to another part of Pakistan?

A. That’s not possible. If there is no man with me, who will provide for me? And these two girls will be treated like

[dirt]…just like call girls. [Court Note: This is clearly a fear of societal/community discrimination]….

Q.66 Who in your family do you fear?

A. My dad. My brother. And the society. [Court Note: Strikingly, even when the questioner turns specifically to fear

of family, Ms Y broadens matters, pointing to a wider fear of society.]…

Q.68 Could you seek protection from the Pakistani authorities?

A. No because my family is gonna find out. My father is a religious personality of [named place]…and I’m scared if

somebody see me, I will get in trouble and my daughters will get in trouble. And authorities will do nothing. [Court

Note: This is clearly a fear of official tolerance of maltreatment of women. There is also separate mention in Ms Y’s

asylum application that if her children were discovered in Pakistan to be non-marital children, they would face

deprivation of educational provision, though it is not entirely clear whether this would be as a result of State action

and/or community and social discrimination].”

Reason 3: Though offered as a reason, Reason 3 is not a reason, it is a statement of conclusions, having regard to what

has previously been stated:

“In those circumstances, the Tribunal is not satisfied that there is a reasonable degree of likelihood of the

Appellant and/or her daughters being harmed in circumstances where the rest of the claim has been rejected and

there are no specific actors of persecution. In short, the Appellant’s fear is not a well-founded fear. Consequently,

the Appellant’s refugee claim is rejected and the Tribunal will not consider state protection or internal relocation.”

[Court Note: Reason 3 is not a free-standing reason. It cannot stand if Reasons 1 and 2 cannot stand and they are

deficient for the reasons stated.]

3. Separately, complaint is made by Ms Y that the IPAT did not assess a core claim on the basis that the term ‘single mother’ as

applied by the IPAT is not an adequate classification. The court considers this complaint to be without merit for two reasons:

(i) Ms Y herself complained (and the written submissions of her counsel acknowledge that she complained) that she was

at risk of persecution on the basis, inter alia, of her status as a single mother. The IPAT then assessed her complaint as

presented. That is exactly how matters should have proceeded.

(ii) the IPAT clearly understands that it is the non-compliance with a Pakistani societal norm (that of having children

within wedlock) that is at issue. So, for example, at para.4.1 the IPAT, under the heading “Assessment of Facts and

Circumstances”, states that “[T]he Appellant alleges that she is a single mother and that would cause her to be at risk

of discrimination and place herself and her two daughters in danger in Pakistan.” And the COI quoted at p.24 of the

Impugned Decision shows a clear understanding by the IPAT of the societal issues that can present in Pakistan in terms of

the treatment of women.

4. Two questions were contended in the written submissions to arise from the pleadings, which the court answers hereafter by

reference to the foregoing:

(1) Q. Has the IPAT failed adequately to identify and/or analyse a core element of Ms Y’s claim, namely that she is at risk

in Pakistan as an unmarried mother? A. No.

(2) Q. Has the IPAT erred in its assessment of objective risk of harm to Ms Y by reason of the foregoing failure to identify

properly a core element of Ms Y’s claim. A. The question is premised on the notion that the answer to Question (1) is

‘yes’; however, the court’s answer to Question (1) is ‘no’.

5. Notwithstanding the answers to the two questions just posed, having regard to the deficiencies identified at para.2, the court will

grant the limited order of certiorari that was contended for by counsel for Ms Y at the hearing of this application.