Barua v Minister for Justice and Equality

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Mac Eochaidh
• Judgment Date: 09 November 2012
• Neutral Citation: [2012] IEHC 456
• Date: 09 November 2012

Barua v Minister For Justice

JUDICIAL REVIEW

BETWEEN

SUMAN BARUA

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2012] IEHC 456

[No. 737 J.R./2011]

THE HIGH COURT

IMMIGRATION LAW

Subsidiary protection

Judicial review of refusal of subsidiary protection and leave to remain - National of Bangladesh - Buddhist - Alleged failure to address documents already on file of applicant - Absence of challenge to authenticity of documents submitted in asylum application - Use of documents - Reference to country of origin information suggesting ready availability of forged documents in Bangladesh - Failure to identify potentially fraudulent documents - Failure to address all documentation submitted - Whether findings on lack of credibility strong enough to allow decision maker give no weight to apparently corroborative documentation - Obligation to consider documentation - Principles for treatment of evidence going to credibility - Obligation to give reasonable explanation for administrative decision - Whether duty on applicant to bring dispute to attention of decision maker - HM v Minster for Justice, Equality and Law Reform [2011] IEHC 16, (Unrep, Hogan J, 21/1/2011); IR v Minister for Justice, Equality and Law Reform [2009] IEHC 353, (Unrep, Cooke J, 24/7/2009); Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, (Unrep, SC, 21/1/2010); AMN v Refugee Appeals Tribunal [2012] IEHC 393, (Unrep, McDermott J, 3/8/2012); HM v Minister for Justice and Law Reform [2012] IEHC 176, (Unrep, Cross J, 27/4/2012); Debisi v Minister for Justice and Law Reform [2012] IEHC 44, (Unrep, Cooke J, 2/2/2012) and Okunade v Minister for Justice, Equality and Law Reform [2012] IESC 49, (Unrep, SC, 16/10/2012) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Decisions quashed (2011/737JR - MacEochaidh J - 9/11/2012) [2012] IEHC 456

Barua v Minister for Justice and Equality

Facts: The applicant was originally from Bangladesh and practiced as a Buddhist. He applied for asylum upon entering Ireland in February 2010 but his application before the Refugee Applications Commissioner and the Refugee Appeals Tribunal was rejected. The applicant then made a claim for subsidiary protection on the basis that there was a risk of serious harm if he was returned to his country of origin but this was also rejected. Leave for judicial review was subsequently sought challenging the validity of that decision.

It had been the applicant's claim throughout that he had fled Bangladesh because of his involvement in a group called NSKA which promoted the interests of women and children in education and healthcare. He claimed that as a result, an Islamist gang had threatened to kill him and had attacked members of his family. The applicant submitted eleven documents in support of his application, the authenticity of which were not specifically disputed at any stage of the proceedings. Nevertheless, the application was rejected before the Refugee Appeals Tribunal on the issue of credibility citing an incident alleged by the applicant where he narrowly escaped attack by the Islamist gang and why the Islamist gang had not went to the applicant's cousin's house to find him as implausible.

The report from the subsidiary protection application sought to follow Regulation 5 of the Protection Regulations. In its rejection of the application, the report outlined the implausibility of the two events alleged by the applicant but did not give weight to the documentary evidence forwarded whatsoever.

Held by Mac Eochaidh J that the credibility issue in the case was marginal therefore the decision maker had an obligation to consider and weigh the documentary evidence that had been submitted. If the documentary evidence was dismissed, reasons should have been given. In the present case, neither duty was fulfilled: the documents prima facie supported the applicant's case but there was no finding in the report that could justify the dismissal of this corroborative effect. The respondent argued that the country of origin information showed that fraudulent documentation was readily available in Bangladesh, but it was held that if that was the reason they were dismissed it should have been put to the applicant and then expressly cited in the report.

The respondent had also contended that as the applicant had not challenged the finding of the Refugee Appeals Tribunal on the issue of credibility at the subsidiary protection application stage and as the former's decision had been adopted in the latter, he should be debarred from challenging the findings now. It was held that after the Refugee Appeals Tribunal, the applicant had been informed by letter he could apply for subsidiary protection but that it was not an appeal of the refusal of refugee status. As such, the applicant was entitled to believe that it was fresh application.

Decisions in suit quashed.

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11(B)

REFUGEE ACT 1996 S11(B)(E)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 S5(1)(B)

M (H) v MIN FOR JUSTICE UNREP HOGAN 21.1.2011 2011/33/9253 2011 IEHC 16

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 S5(1)(A)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 S5(1)(C)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 S2(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS SI 518/2006 S5(2)

R (I) v MIN FOR JUSTICE UNREP COOKE 24.7.2009 2009/47/11866 2009 IEHC 353

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157

N (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP MCDERMOTT 3.8.2012 2012 IEHC 393

M (H) v MIN FOR JUSTICE UNREP CROSS 27.4.2012 2012 IEHC 176

D (N)[NIGERIA] v MIN FOR JUSTICE UNREP 2.2.2012 2012 IEHC 44

OKUNADE v MIN FOR JUSTICE & ORS 2013 1 ILRM 1 2012 IESC 49

CIVIL LIABILITY ACT 1961

1 JUDGMENT of Mr. Justice Mac Eochaidh delivered the 9th day of November 2012

2 1. By order of the Court (Clark J.) of the 8th February, 2012, leave was granted to the applicant to apply for judicial review of the decisions of the respondent of the 20 ^th June, 2011 refusing him subsidiary protection and leave to remain, on the following ground:

"The Respondent's decisions with respect to the Applicant's applications for Subsidiary Protection and Humanitarian Leave to Remain are flawed in that: The Respondent failed to address the documents already on the Applicant's file which, the Applicant claims are capable of corroborating his claims for Subsidiary Protection and Humanitarian Leave to Remain, albeit in the circumstances where the decision of the Refugee Appeals Tribunal with respect to the Applicant's claim for refugee status was not challenged."

Refugee Appeals Tribunal Decision

3 2. The applicant, who is a Buddhist and a national of Bangladesh, (where Buddhists are a minority), arrived in Ireland on the 1 ^st February, 2010, and applied for asylum the following day.

4 3. In a submission to the Refugee Applications Commissioner, the applicant gave a detailed account of his life in a village in Bangladesh. He described how he came to take over his father's pharmacy and how he obtained basic medical training. He tells how he joined a local organisation promoting the interests of women and children in the areas of education and healthcare (the organisation is called NSKA). The applicant described to the Commissioner his involvement with the organisation and the circumstances in which he became its Vice President. He also described tensions connected with the activities of NSKA and how objection was taken to the organisation by certain Islamists. An influential man of Islamic faith called Mojaffor Ahmed is said to have insinuated himself in the organisation seeking an Islamic influence on its activities. It is said that the Buddhist applicant sought to terminate this influence and this resulted in a firearm being planted in the NSKA offices which attracted police attention and a prosecution of ten to twelve persons from NSKA. The Commissioner was informed that there was no point in making a complaint to the police. The applicant said that his family home was attacked and his sisters were afraid to leave the house. He also stated that his tormentors were searching for him, saying they wished to kill him. The applicant says that on the 4 ^th November, 2009, as he was travelling to his parents' house, Mojaffor Ahmed and his gang attacked him, but he escaped. That evening, the same gang visited his parents' house and beat his parents and sought to capture his sisters, which action was prevented by the intervention of neighbours. In view of these events, the applicant says he fled Bangladesh.

5 4. Some eleven documents or categories of documents and photographs were submitted to the Commissioner in support of his application. These materials are identified by the compiler of a report (the s. 13 report) as follows:

6 (i) Certificate of Training in Primary Healthcare;

7 (ii) Trade Licence;

8 (iii) List of Committee Members of Ramal Child and Youth Organisation

9 (iv) Copy of Birth Certificate

10 (v) Photographs;

11 (vi) DHL envelope;

12 (vii) A document related to Buddhist faith;

13 (viii) False case made to police about the applicant;

14 (ix) Warrant of Arrest of applicant;

15 (x) Charge Sheet in relation to false allegation against the applicant;

16 (xi) Police report.

17 The author of the s. 13 report states in relation to this material:

"All of the documentation furnished in connection with the application has been fully considered."

18 5. Following the failure of his application for refugee status, an appeal was made to the Refugee Appeals Tribunal which involved the same material and claims made...