High Court: IPAT decision to refuse protection for Muslim man threatened by cow vigilantes quashed
The High Court has quashed a decision by the International Protection Appeals Tribunal (IPAT) which refused international protection to a Muslim man who claimed to be persecuted for working in the beef trade in India. The man was previously attacked by cow vigilantes who wanted him to stop his work and convert to Hinduism.
About this case:
- Citation: IEHC 553
- Court:High Court
- Judge:Ms Justice Siobhán Phelan
Delivering judgment in the case, Ms Justice Siobhán Phelan held that the IPAT failed to assess the country of origin information regarding the risk to Muslims with connections to the beef trade in India. Further, there was a failure to consider whether the applicant was subject to persecution by the threats that he refrain from pursuing a particular profession.
The applicant arrived in Ireland in August 2017 with two of his sons and applied for international protection. The applicant was Muslim. He claimed that he risked persecution in India due to his religious belief and was at a risk of serious harm. The applicant was involved in the beef industry and claimed to have suffered religious persecution by Hindu nationalists as a result.
In an interview with the International Protection Office, the applicant stated that he would not be involved in the cattle slaughter business if he returned to India. A report later issued in July 2019 in which the IPO recommended that the applicant should not be given refugee or subsidiary protection.
This recommendation was appealed to the IPAT on a paper-only basis and was affirmed in December 2019. Thereafter, judicial review proceedings were initiated which resulted in consent orders for certain aspects of the decision being quashed and the matter remitted to the IPAT. However, in March 2021, the IPAT reaffirmed its decision, holding that there was a reasonable chance of religious persecution if the applicant was returned to India due to his occupation in the beef industry. Further, it was accepted that State protection was not available to the applicant.
It was held that the applicant had sufficient resources that he would not need to work to live in India. It was reasoned that he had investment property worth €4 million which he proposed to sell in the future. Additionally, it was said that, if he wished to work, the applicant could work in a different occupation.
Delivering judgment in the case, Ms Justice Phelan identified the issues as being 1) whether the applicant was precluded from challenging the IPAT’s assessment that he could work in another industry when that finding did not fall within the section of the decision challenged in the proceedings and 2) whether the IPAT erred by finding that the applicant could avoid persecution by changing his occupation.
The court was satisfied that the applicant was not precluded from maintaining the proceedings on the basis that he had not previously challenged the finding that he would not engage in the beef industry in the IPAT’s original decision. It had been submitted that this finding carried over from the original decision after the previous JR proceedings.
However, the court held that the real challenge in the present proceedings was the finding that the applicant could avoid risk of persecution by relocation and not engaging the beef industry. As such, the applicant was challenging an aspect of the second, subsequent decision and could maintain the proceedings.
Turning to the second issue, the court held that where a claimant was found to have been persecuted on religious grounds, considerable care was necessary before protection could be refused (K.D. (Nigeria) v Refugee Appeals Tribunal  IEHC 481). The threshold to be reached before internal relocation could be considered was therefore high.
Further, the court observed that the fact that a person could avoid a risk of persecution by abstaining from certain religious practices was irrelevant, according to C-71/11 and C-99/11 Y & Z. It was held that “the IPAT when considering whether internal protection is available if certain practices are avoided should consider whether what is required of the protection applicant to avoid risk is such a significant interference with his human rights as to itself come within the ambit of a risk of ‘being persecuted’”.
In essence, refugee status could not be denied by requiring a claimant to forfeit a fundamental human right in order to avoid persecution (see Refugee Appeals Authority of New Zealand Refugee Appeal No. 74665/03).
In the present case, the IPAT decision did not address whether the applicant would be at risk if he continued his occupation after relocation in India or if his prior involvement in the beef business became known. No analysis was provided for why the applicant decided to discontinue his beef business and whether the change was necessitated by persecution.
As such, the IPAT “ignored the argument that being required to sell his property and change his career was a manifestation of persecution, rather than merely incidental to it”. This was “very damaging to the integrity of the decision”.
Even though the IPAT was required to conduct a “careful” examination, the IPAT did not show that it approached the question of whether the applicant decided to cease work solely to avoid further incidents of persecution. It also did not analyse whether the need to change work could, on the facts, constitute persecution. The failure to conduct these analyses amounted to an error in law, the court held.
Finally, the court held that the IPAT was required to consider cow vigilantism on a cumulative basis with the other evidence of discriminatory or persecutory treatment of Muslims in India, when assessing whether it was reasonable for the applicant to relocate to the identified areas in the decision (see Karanakaran v. Secretary of State for the Home Department  3 All ER 449). The court held that the IPAT did not address the widespread existence of cow vigilantism when assessing the reasonableness of relocation, which suggested that the evidence was not cumulatively assessed by the IPAT. In turn, this meant that the application was not properly assessed.
The court quashed the decision of the IPAT and would hear the parties on the exact form of order.
E.S. v. International Protection Appeals Tribunal  IEHC 553