C (M H)[Bangladesh] v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 14 December 2011
• Neutral Citation: [2011] IEHC 474
• Court: High Court
• Date: 14 December 2011

[2011] IEHC 474

THE HIGH COURT

[No. 1085 J.R./2011]

C (MH) [Bangladesh] v Min for Justice & Ors

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

M. H. C. [Bangladesh]

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

REFUGEE ACT 1996 S13

EEC DIR 2004/83 ART 4(1)

A (BJS) [SIERRA LEONE] v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011 IEHC 381

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S5

T (LA) & ORS v MIN FOR JUSTICE & ORS UNREP HOGAN 2.11.2011 2011 IEHC 404

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

IMMIGRATION LAW

Subsidiary protection

Absence of appeal mechanism - Failure of respondent to personally consider application - Delegation of power - Fear of persecution or serious harm - Whether fair issue raised - Whether damages for wrongful deportation adequate - Application to restrain deportation - A(BJS)(Sierra Leone) v Minister for Justice, Equality and Law Reform [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011); T(LA) v Minister for Justice [2011] IEHC 404, (Unrep, Hogan J, 2/11/2011) and Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 considered - Immigration Act 1999 (No 22) - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Refugee Act 1996 (No 17), s 5 - Council Directive 2004/83/EC, art 4.1 - Application refused (2011/1085JR - Cooke J - 14/12/2011) [2011] IEHC 474

C(MH)(Bangladesh) v Minister for Justice and Equality

1 1. The only basis for any claim to international protection whether as refugee status or subsidiary protection made by the applicant is that of his alleged fear of mistreatment in Bangladesh on account of his religion. As such it is a claim that has arisen since he left Bangladesh in 2006, because when he left at that point he was a Muslim, intending to study in Ireland on a student visa. His passport and student visa subsequently expired in February 2010, but he remained in the country and as a result he was arrested in April 2010. He claims that he formally converted to the Ahmadi faith. on the 17 ^th May, 2010, and on the 20 ^th May, 2010 he applied for asylum on the basis that if then returned to Bangladesh he would face persecution as a member of that faith.

2 2. His asylum claim was rejected by both the Office of the Refugee Applications Commissioner and on appeal by the Tribunal. In the s. 13 Report the authorised officer recorded that in interview the applicant had conceded that he had had no intention of applying for asylum, but felt that he had no choice but to do so because his money had been stolen and he wanted to complete his studies and then apply for residency. Both the authorised officer and the Tribunal member concluded that his claim of conversion to the Ahmadi faith lacked credibility given its coincidence with the arrest and the asylum application. The Tribunal member accepted that on the basis of country of origin information, there was some evidence of the members of the Ahmadi faith being targeted for discrimination and mistreatment, but that as the applicant had no profile in Bangladesh, a person in his position or condition would not face a reasonable likelihood of being persecuted for a Convention reason on that basis.

3 3. The application for subsidiary protection was based on the same claim derived from his religious conversion and has been refused both by reference to the same lack of credibility and by reference to country of origin information to the effect that, while there are reports of abuses and discrimination based on religious affiliation. such incidents were declining significantly and freedom of religious practice was respected by government, such that protection would be available to the applicant. 4. It is in these circumstances that the applicant now asks the Court to intervene to restrain the otherwise ordinary course of the statutory process of deportation under the Immigration Act 1999, should the Minister decide to implement the order before the leave applications have been determined. To do so the applicant must show first that there is a fair issue raised to be determined on the leave application and that if an injunction is refused, damages for wrongful deportation would not be an adequate remedy because compensation would not rectify the possible consequences for the application of his repatriation, even temporarily, to Bangladesh.

5 5. The Court has considerable doubt as to whether the grounds pleaded in this case give rise to any stateable issue as to the illegality of either decision. A total of fifteen grounds are set out in the statement of grounds. Several of these raise issues of law or statutory interpretation which will not necessarily lead to the invalidity of either decision if established. Several others are pleaded as general propositions unlinked to any identified flaw or error in either decision.

6 6. Thus grounds 1, 2 and 3, are directed at an alleged failure to respect a duty of cooperation based on Article 4.1 of Council Directive 2004/83/EC of the 29 ^th April, 2004, (the "Qualifications Directive"). Apart from the fact that this proposition has been rejected in decided cases, (see, for example, B.J.S.A. (Sierra Leone) v. Minister for Justice, Equality and Law Reform (Unreported, High Court, Cooke J., 12 ^th October, 2011) it is advanced here in isolation from any concrete consequence for the subsidiary protection determination. Even if such a duty arises it cannot serve as a basis of illegality of such a determination unless it is shown that there is some error in the determination which would not have occurred or would have been rectified had the alleged cooperation taken place. This has not been identified.

7 7. Grounds 4 and 5 are based on the alleged failure to legislate for an appeal remedy against the Minister's determination of the subsidiary protection application. As has been pointed out again in...