C.G. v The International Protection Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 10 May 2019 |
| Neutral Citation | [2019] IEHC 300 |
| Court | High Court |
| Docket Number | [2016 No. 472 JR] |
| Date | 10 May 2019 |
AND
[2019] IEHC 300
Keane J.
[2016 No. 472 JR]
THE HIGH COURT
JUDICIAL REVIEW
Immigration and asylum – Subsidiary protection – Judicial review – Applicant seeking an order of certiorari quashing the respondent’s decision – Whether the respondent erred in law in failing to apply the correct test for assessing the availability of state protection
Facts: The first respondent, the International Protection Appeals Tribunal (the IPAT), then known as the Refugee Appeals Tribunal, by a decision dated 19th May 2016 and made under Regulation 8(22)(a) of the European Union (Subsidiary Protection) Regulations 2013, affirmed a recommendation of the Refugee Applications Commissioner that the applicant should not be declared to be a person eligible for subsidiary protection. On 25 July 2016, Mac Eochaidh J granted the applicant leave to apply for various reliefs, principal among which was an order of certiorari quashing the IPAT decision. In his amended statement of grounds, the applicant enumerated the following three grounds upon which the IPAT decision was unlawful: (a) the tribunal erred in law in holding that local failures in state protection do not amount to a failure by the state as a whole; (b) the tribunal engaged in selective use of country of origin information, resulting in an unreasonable or irrational decision; and (c) the tribunal erred in law in failing to apply the correct test for assessing the availability of state protection as set out in Reg. 16(1) of the 2013 Regulations.
Held by the High Court (Keane J) that it rejected the applicant’s argument that the IPAT decision contained the error of law that he asserted. Keane J was satisfied that it was open to the tribunal to come to the view that it did on the evidence before it. He was further satisfied that, in its assessment of the country of origin information, the decision of the tribunal was neither irrational nor unreasonable, applying the test for invalidity recognised by the Supreme Court in Meadows v Minister for Justice [2010] 2 IR 701. He held that the applicant had failed to persuade him that the tribunal applied the wrong test or that it wrongly disregarded the evidence concerning the availability of effective state protection.
Keane J held that the application would be refused.
Application refused.
This is the judicial review of a decision of the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal (“the IPAT”), dated 19th May 2016 and made under Regulation 8(22)(a) of the European Union (Subsidiary Protection) Regulations 2013 (“the 2013 Regulations”), then applicable, affirming a recommendation of the Refugee Applications Commissioner (“the Commissioner”) that the applicant should not be declared to be a person eligible for subsidiary protection (“the IPAT decision”).
On 25 July 2016, Mac Eochaidh J granted the applicant leave to apply for various reliefs, principal among which is an order of certiorari quashing the IPAT decision.
At the time when leave was granted, the International Protection Appeals Tribunal was known as the Refugee Appeals Tribunal. When s. 71(5) of the International Protection Act 2015 (“the Act of 2015”) came into force on 31 December 2016, the former was substituted for the latter in these proceedings by operation of law.
The applicant is a national of Bangladesh, born a Hindu in 1983.
He entered Ireland on a student visa in 2006. In 2010, after a three week visit back to Bangladesh, he returned to Ireland and applied for refugee status, claiming a well-founded fear of persecution on grounds of religion and political opinion.
On 21 May 2010, the Commissioner recommended that the applicant not be recognised as a refugee on the basis that he had failed to establish that his fear of persecution if returned to Bangladesh was objectively well-founded or that effective state protection would not be available to him there. On 22 July 2010, the Refugee Appeals Tribunal affirmed that recommendation on, effectively, the same grounds.
On 7 September 2010, the applicant applied for subsidiary protection. After an interval that has not been explained, but in respect of which no complaint is made on either side in these proceedings, the applicant was interviewed on behalf of the Commissioner on 19 June 2014, in accordance with Regulation 5(3) of the 2013 Regulations which had come into operation on 14 November 2013. Under Reg. 3(2) of the 2013 Regulations, any application for subsidiary protection under the 2006 Regulations upon which the Minister had not made a decision before the commencement of the 2013 Regulations, was deemed to be an application made under the later regulations. A report of that interview, dated 19 June 2014, was furnished to the Commissioner in accordance with Reg. 5(9) of the 2013 Regulations.
The Commissioner's written report on the investigation of the applicant's subsidiary protection claim, required under Reg. 6(1) of the 2013 Regulations, is dated 10 July 2014. It was subsequently referred to by the tribunal as “the SP report”; “SP” presumably standing for subsidiary protection. In very short summary, it concluded that, while a widespread level of political violence and of violence against members of the Hindu minority in Bangladesh did create a real risk of serious harm to the applicant, that risk was mitigated by the availability of both effective state protection and an internal relocation alternative there. On 18 July 2014, the Commissioner recommended that the applicant should not be declared to be a person eligible for subsidiary protection.
The applicant submitted a note of appeal on 6 November 2014. That appeal was heard on 12 May 2016.
The IPAT decision is dated 19 May 2016 and was furnished to the applicant under cover of a letter, dated 20 May 2016. It concluded that the applicant had failed to establish the credibility of his personal narrative concerning his own experiences and those of his family in Bangladesh, or his claims to have been the target of threats as a student political activist in Bangladesh or as person politically outspoken on Facebook while in Ireland. That conclusion on credibility is not challenged in these proceedings.
Having accepted nonetheless that the applicant is a national of Bangladesh and a Hindu, the IPAT decision went on to consider whether the applicant had shown substantial grounds for believing that, if returned there, he would face a real risk of suffering serious harm. In that context, the IPAT decision accepted the finding, set out in the SP report, that, although the applicant's family has lived in Bangladesh without incident for many years, country of origin information (“COI”) indicates that violence against Hindus and political violence has led to incidents of serious harm.
The IPAT decision then addressed the availability of effective state protection, acknowledging the relevant finding in the SP report and considering various COI reports relied upon by the applicant. Its conclusion on that issue, which is the focus of the present challenge, was as follows:
“It is clear, from all of the evidence before the Tribunal, that Hindus in Bangladesh do face discrimination and that many were subjected to attacks post the January [2014] elections. The Tribunal has assessed all of the evidence before it and I find that while there are policemen and people in authority, in Bangladesh, who are corrupt and complicit in attacks against minorities, that cannot be said of the entire system. Violence against the Hindu population cannot be said to be carried on with the tacit consent of the State. In order to show that [the applicant] would not be safe in Bangladesh, there must be clear and convincing evidence of a lack of state protection. The COI cited above does not disclose that this is the case. The [applicant] never went to the police in relation to his alleged problems as he felt there was no point. Instead he sought out surrogate protection at the first possible opportunity. The Tribunal is cognisant of the fact that surrogate protection only comes into play when there is clear and convincing evidence of a lack of state protection in the home country. The Tribunal also notes that local failures in State protection do not amount to a failure by the State as a whole. The evidence before the Tribunal, which is set out above, does not suggest that this is the case. The COI cited refers to instances where the High Court [of Bangladesh] had denounced attacks against Hindus and to situations where the police have intervened and arrested perpetrators in such attacks. In the circumstances, I uphold the findings in the SP report.”
One further significant finding made by the tribunal is that, having found no clear and convincing evidence of lack of state protection, it was not necessary to address the issue of an internal protection alternative (in the alphabet soup of immigration and asylum practice, an “IPA”), and the tribunal did not do so.
The applicant sought, and was granted, leave to bring these proceedings on 25 July 2016, based on an amended statement of grounds of the same date, filed in the Central Office on 3 August 2016, grounded on an affidavit of the first applicant, sworn on 28 June 2016. The Minister filed a statement of opposition, joining issue with the applicant on each of the grounds raised, on 31 March 2017.
Mac Eochaidh J granted the applicant leave to seek, among other reliefs, an order granting an extension of time for the issue of these proceedings. In their statement of opposition, the respondents point out that the proceedings were...
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E.S. v International Protection Appeals Tribunal
...State is a valid factor in determining the effectiveness of protection. In C.G. v. The International Protection Appeals Tribunal & Anor. [2019] IEHC 300, which related to similar facts to the present case, Keane J. stated at para. 27: “ having considered the COI, the tribunal found that, wh......