The High Court has quashed a Refugee Appeals Tribunal decision refusing an asylum appeal by a child born in Ireland to Pakistani parents, and ordered a fresh hearing before a different Tribunal Member.
In a judgment delivered on 16 October 2015, Ms Justice Faherty granted a short extension of time for the proceedings. The case was heard as a telescoped judicial review, and the court remitted the matter to the Tribunal for a de novo hearing. It did not decide that the child qualified for refugee status.
The child’s mother had applied for asylum on her behalf, saying that relatives in Pakistan would kill the child if she returned. The child’s case was based on the same fears as her parents’ claims. The Tribunal had affirmed the recommendation that she not be declared a refugee, relying in part on the parents’ rejected asylum cases and finding that state protection and relocation to Karachi were available.
The court rejected a claim that it was procedurally unfair for the parents’ Tribunal decisions to be given to the decision-maker at the child’s hearing. The Commissioner’s report had already referred to the parents’ rejected appeals, and the record did not show that the child’s representatives objected or sought an adjournment.
However, the judge found that the Tribunal had not adequately explained why the child’s appeal failed. The decision did not analyse the claim presented on her behalf or explain why findings in her mother’s case were sufficient to reject it. The child had asserted a fear based on membership of a particular social group, and the appeal submissions asked that her credibility receive the benefit of the doubt. The court said those matters required due consideration and that the decision should set out the extent of that consideration. It also found that the Tribunal’s remarks on the social-group issue did not clearly establish that the claim had lawfully failed for lack of a Convention link.
On state protection, the court upheld the Tribunal’s use of the established approach requiring clear and convincing evidence that the state could not protect the applicant. But it found that the decision did not show consideration of country reports describing police reluctance to investigate gender-based violence, forced marriage and related harms. The judge said that evidence could bear on whether protection was effective in practice, given the type of harm alleged. The court found this omission materially affected the state-protection decision. A separate argument about police reports said to relate to the father was not made out because the court was not given an explanation for why they had not been put before the Tribunal in the child’s appeal.
The court accepted that the Tribunal could reasonably conclude Karachi might remove the child from the claimed risk, taking account of the city’s size and population. But it found the relocation assessment incomplete: the child’s family included both parents, and the decision did not consider the father’s circumstances or the mother’s evidence about his business when assessing whether relocation was reasonable. The court held that a sufficiently careful inquiry had not been carried out.