HM v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cross
• Judgment Date: 27 April 2012
• Neutral Citation: [2012] IEHC 176
• Court: High Court
• Date: 27 April 2012

[2012] IEHC 176

THE HIGH COURT

[No. 1455 J.R./2010]

M (H) v Min for Justice

JUDICIAL REVIEW

BETWEEN

H.M.

APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S5

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(1)(D)

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

S (DVT) v MIN FOR JUSTICE & ORS UNREP EDWARDS 30.11.2007 2007/54/11652 2007 IEHC 451

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

DANIAN v SECRETARY OF STATE FOR THE HOME DEPT 2000 IMM AR 96 1999 INLR 533

V (F) v REFUGEE APPEALS TRIBUNAL (DOURADO) & MIN FOR JUSTICE UNREP IRVINE 28.5.2009 2009/56/14311 2009 IEHC 268

M v SECRETARY OF STATE FOR THE HOME DEPT 1996 1 WLR 507 1996 1 AER 870

BASTANIPOUR v IMMIGRATION & NATURALIZATION SERVICE 1992 980 F (2D) 1129

UGBO & BUCKLEY v MIN FOR JUSTICE & ORS UNREP HANNA 5.3.2010 2010/50/12689 2010 IEHC 80

M (J) [ZIMBABWE] v MIN FOR JUSTICE UNREP IRVINE 22.3.2011 2011/33/9288 2011 IEHC 133

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

MBI v MIN FOR JUSTICE UNREP CROSS 23.3.2012 2012 IEHC 125

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

HELY A LACK OF GOOD FAITH: AUSTRALIAS APPROACH TO BOOTSTRAP REFUGEE CLAIMS 2008 4(2) J MIGRATION & REFUGEE ISSUES 66

IMMIGRATION LAW

Subsidiary protection

Fair procedures - County of origin information - Credibility - Religious persecution - Religious conversion - Bad faith - Whether respondent erred in law in refusing subsidiary protection claim - Whether respondent entitled to take into account bad faith finding in asylum process - Whether applicant's conversion genuine - Whether well founded fear of persecution - Whether applicant's pretended conversion would be discovered in Afghanistan - HM v Minister for Justice [2011] IEHC 16, (Unrep, Hogan J, 21/1/2011); DVTS v Minister for Justice [2007] IEHC 451, (Unrep, Edwards J, 30/11/2007); Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 701 and Danian v Secretary of State for the Home Department (1999) INLR 533 considered - ND v Minister for Justice [2012] IEHC 44, (Unrep, Cooke J, 2/2/2012); JM v Minister for Justice [2011] IEHC 133, (Unrep, Irvine J, 22/3/2011) and FV v Minister for Justice [2009] IEHC 268, (Unrep, Irvine J, 28/5/2009) approved - Bastanipour v Immigration and Naturalisation Service (1992) 980 F 2d 1129 distinguished - Refugee Act 1996 (No 17), s 5 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 5 - Application refused (2010/1455JR - Cross J - 27/4/2012) [2012] IEHC 176

M(H) v Minister for Justice and Law Reform

Facts The applicant claimed that he was a national of Afghanistan who while working in Iran had become a Jehovah Witness. It was claimed that when Iran had started to deport Afghanis he had fled to Europe to seek asylum. The applicant claimed that he feared for his life because of his rejection of the Muslim faith and his conversion to Christianity. Conversion to Christianity was a crime under Afghani Sharia law. The Refugee Appeals Tribunal (RAT) rejected the asylum claim on credibility grounds. The respondent determined that as the applicant was found to have acted in bad faith and was not entitled to protection under s. 5 of the Refugee Act 1996. The applicant contended that he originally gave false information when he applied for asylum as he was being assisted by a fellow Afghani and did not want to tell this Afghani that he had become a Christian. It was contended that notwithstanding the determination that the applicant was not of good faith, the respondent had failed to consider whether the applicant was facing a serious risk to his life. The applicant issued judicial review proceedings seeking to quash the deportation order.

Held by Cross J in refusing the relief sought: The essential question was whether the applicant had a well founded fear of persecution, even if he had acted in bad faith. By virtue of the Subsidiary Protection Regulations, the respondent could not send a person to a country where they were likely to suffer serious harm. While it was very well to hypothesise over what an imaginary Sharia judge would do when faced with a convert it must be demonstrated that there was a realistic possibility that this would occur. When the application for subsidiary protection was made, it was incumbent on the applicant to point the Minister to new circumstances giving rise to an alleged threat of serious harm or to some material error of fact that would vitiate the entire decision of the RAT. The applicant”s fear was either misplaced or dishonestly propagated and could not amount to something that would result in his requiring state protection.

1 JUDGMENT of Mr. Justice Cross delivered on the 27th day of April, 2012

2 1. This judicial review application seeks orders of certiorari quashing the subsidiary protection decision of 12 ^th October, 2010 and the subsequent deportation order of 20 ^th October, 2010, in respect of the applicant. In a reserved judgment of 21 ^st January, 2011, Hogan J. granted an injunction in respect of this matter. On foot of the said decision, the applicant and the respondent agreed grounds upon which leave could be granted. By order of Cooke J. on 17 ^th October, 2011, leave was granted on consent on the following grounds:-

3 (a) the respondent found that State protection and internal relocation were options open to the applicant contrary to the country of origin information relied on and considered by the respondent;

4 (b) the respondent determined that as the applicant was found to have acted in bad faith and/or had acted in a self serving manner, he is not a refugee sur place and/or not entitled to the protection of s. 5 of the Refugee Act 1996;

5 (c) notwithstanding the determination of the RAT that the applicant was not of good faith in his asylum claim, the respondent failed to consider whether the applicant is facing a serious risk of his life or freedom being threatened and/or has a well founded fear of persecution on the basis of his apostasy and conversion to Christianity;

6 (d) the respondent failed to apply the test as to whether the applicant's fear was well founded based on a consideration of what would count as conversion in the eyes of a religious judge, which is the only thing that would count insofar as the danger to the applicant is concerned; and

7 (e) the respondent erred in law having regard to Article 5(1)(d) of the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006) in failing to consider whether a hypothetical Afghan judge is likely to disregard the applicant's engagement with Christianity on the ground that it was not simply meant and was simply opportunistic, so that the applicant would not face a real risk of suffering serious harm as defined in the 2006 Regulations.

Background

8 2. The applicant claims to be a national of Afghanistan who arrived in the State on 20 ^th September, 2005, where upon he applied for asylum. He claims to be an ethnic Hazarra who in 1999 had to flee Afghanistan for Iran when the Taliban came to power.

9 3. The applicant claims, after working in Iran for five years, he changed his religion and became a Jehovah Witness after being employed by a Christian. After elections in Afghanistan, Iran began to deport Afghanis. He further claims that fearing for his life he fled to Turkey, Greece, Italy, France and England before entering this State.

10 4. The applicant admitted that he described himself as a Muslim and gave false information when he initially applied for asylum because he claims he was assisted by a fellow Afghani in completing the questionnaire and he not tell this Afghani that he had become a Christian.

11 5. The applicant claims that he fears for his life because of his rejection of the Muslim faith and his conversion to Christianity, which constitutes the crime of apostasy under Sharia law.

12 6. The applicant's asylum claim was rejected by the Refugee Appeals Tribunal (RAT) on 9 ^th October, 2006. The RAT found against the applicant on credibility grounds. These findings were never challenged by way of judicial review.

13 7. The applicant applied for subsidiary protection on 23 ^rd November, 2006, which was refused by the Minister on 11 ^th October, 2010. A deportation order issued on 20 ^th October, 2010. Both of these decisions are currently the subject of the challenge herein. As previously noted, an injunction was granted in respect of these proceedings by Hogan J. on 21 ^st January, 2011. It is not disputed that the applicant was significantly untruthful in his interactions with the asylum process. Hogan J. in his judgment granting the injunction stated ( H.M. v. MJELR [2010 No 1455 J.R.] (Unreported, 21 ^st January, 2011) (incorrectly referred to as H.E.)):-

"There is no doubt but that the applicant's engagement with the asylum system in this State has a number of distinctly unsatisfactory features."

14 8. For example, the applicant had originally denied that he had applied for asylum elsewhere in the EU, it later emerged that he had, in fact, applied for asylum in both Greece and the United Kingdom. This information was not obtained from the applicant but from the EURODAC database. The applicant's conversion to Christianity was also deemed by the RAT to be a cynical ploy devised to manipulate the asylum process rather than a true conversion.

The Submissions

(A) The Applicant's Arguments

15 9. Ms. Sunniva McDonagh, S.C., on behalf of the applicant, argued that the applicant fears he will be persecuted if returned to Afghanistan as a result of his conversion from Islam to Christianity; a fear clearly supported by the country...