J.A. (Bangladesh) v Refugee Appeals Tribunal No.2

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 06 November 2018
• Neutral Citation: [2018] IEHC 629
• Docket Number: [2011 No. 899 J.R.]
• Date: 06 November 2018

BETWEEN

J.A. (BANGLADESH)

APPLICANT

AND

ThE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

(No. 2)

[2018] IEHC 629

[2011 No. 899 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Administrative & constitutional law – Judicial review – Immigration case – Applicant seeking judicial review of refusal of subsidiary protection

Facts: The applicant had claimed asylum claiming to have wrongly been sentenced to life imprisonment in abstentia. His asylum claim was refused, and a subsidiary protection application was also refused. He now sought an order of certiorari against the latter refusal.

Held by Humphreys J, that the application would be allowed. The lack of clarity in the decision below meant that the decision was not based on clear and unambiguous findings. On that basis the decision would be quashed and remitted for fresh consideration.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 6th day of November, 2018

1 The applicant was born in Bangladesh in 1974. He claims to have been wrongly convicted in abstentia in his home country in June, 2008 and sentenced to life imprisonment. He arrived in Ireland on 19th December, 2008 and claimed asylum. The credibility of his account was rejected by the Refugee Applications Commissioner in a decision on 29th May, 2009 and on appeal by the Refugee Appeals Tribunal on 30th June, 2010. He then sought subsidiary protection on 6th September, 2010, relying inter alia on harsh prison conditions in Bangladesh. He claimed leave to remain on the same date on grounds including suffering from chronic hepatitis B. Subsidiary protection was refused by the Minister in reliance on the findings of the tribunal on 8th September, 2011 and a deportation order was made on 23rd September, 2011.

2 Originally, the case involved a challenge to the asylum and subsidiary protection refusals and the deportation order. Leave was granted by McDermott J. in a written judgment in J.A. v. Refugee Appeals Tribunal (No. 1) [2013] IEHC 244 (Unreported, High Court, 19th April, 2013) in relation to the subsidiary protection and deportation aspects of the case, together with an amendment extending the subsidiary protection challenge to cover grounds arising from the M.M. v. Minister for Justice and Equality [2011] IEHC 547 (Unreported, High Court, 18th May, 2011) litigation. Leave in relation to the asylum claim was refused, in effect on time grounds, albeit that some aspects of the asylum challenge were not pressed. The effect of the M.M. amendment was to delay the case for a further five years due to the lengthy period of time that that litigation was to take before being rejected. Mr. Daniel Donnelly B.L. for the respondents wryly comments in relation to the system of separate asylum and subsidiary protection decision-making that applied at the material time in this case that ‘ one thing the case illustrates is the potential shortcoming of the two stage system’. I tend to agree, but at least that aspect has been addressed to some extent by the International Protection Act 2015. Perhaps also this case illustrates some of the problems that arise when a significant investigation of the case at the leave stage becomes counterproductive due to the additional delay and expense involved. The most Mr. Donnelly would concede on that front was that, with all appropriate caveats, the case ‘could be offered as an example for that argument’.

3 The respondent appealed to the Supreme Court against the order allowing the amendment (Supreme Court Record No. 241/13). In November, 2013, the applicant sought a residence card on the basis of a marriage to an EU national. That was refused because the EU national had left her place of employment. In 2014, the State's appeal was transferred to the Court of Appeal under Article 64 of the Constitution and assigned Court of Appeal Record No. 2014/863.

4 On 20th January, 2015, on a review from the residence card refusal, the applicant was granted permission to remain in the State on the basis of the marriage to the EU national, and the deportation order was revoked. On the face of it, it seems strange that the applicant was seen as a good catch despite being in the State unlawfully, being subject to a deportation order and also having chronic hepatitis B, a highly sexually transmittable disease. Operation Vantage does not appear to have taken an interest in the applicant to date, but whether that is because the marriage is clearly genuine or because that Operation is not comprehensive in its scope, Mr. Donnelly cannot say. But there may be a case for such an investigation as regards the applicant, on the very limited information that I have.

5 In 2018, following the decision of the Supreme Court in M.M. v. Minister for Justice and Equality [2018] IESC 10 [2018] 1 I.L.R.M. 361, the applicant decided not to pursue the M.M. points, so the respondents” appeal was struck out by the Court of Appeal and the present proceedings were given a hearing date shortly thereafter.

6 I have received helpful submissions from Mr. Michael Conlon S.C. (with Mr. Garry O'Halloran B.L.) for the applicant and, as I have mentioned, from Mr. Donnelly for the respondents.

Relief sought

7 The only relief now sought is that at para. C1 of the amended statement of grounds, namely certiorari of the subsidiary protection refusal. The only relevant...