M (H) v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 21 January 2011
• Neutral Citation: [2011] IEHC 16
• Court: High Court
• Date: 21 January 2011

[2011] IEHC 16

THE HIGH COURT

[No. 1455 J.R./2010]

M (H) v Minister For Justice & Ors

BETWEEN

H. M.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

SOMAGHI v MIN FOR IMMIGRATION 1991 31 FCR 100 1991 FCA 389 102 ALR 339

B (H), IN RE UNREP 21.9.1994 (REFUGEE STATUS APPEALS AUTHORITY CASE NO 2254/94)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION ACT 1999 S3

PETRINE BASING ASYLUM CLAIMS ON A FEAR OF PERSECUTION ARISING FROM A PRIOR ASYLUM CLAIM 1981 56 NOTRE DAME L REV 719

MOHAMMED v MIN FOR IMMIGRATION UNREP 28.6.1999 1999 FCA 868

R v IMMIGRATION APPEAL TRIBUNAL, EX PARTE B 1989 IMM AR 166

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

BASTANIPOUR v IMMIGRATION & NATURALIZATION SERVICE 980 F2D 1129

REFUGEE ACT 1996

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 1

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION) ART 33(2)

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

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

EEC DIR 2004/83 ART 5

EEC DIR 2004/83 ART 4(3)

EEC DIR 2004/83 ART 5(2)

A (AP)(A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP COOKE 20.7.2010 2010 IEHC 297

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

A (L) v MIN FOR JUSTICE UNREP HOGAN 21.12.2010 (EX TEMPORE)

IMMIGRATION

Deportation

Interlocutory injunction - Application for leave - Well founded fear of persecution - Fear of persecution based on activities since leaving country of origin - Whether serious risk if applicant deported - Refugee sur place - Christian convert from Islam - Apostacy - Asylum claim rejected on credibility grounds - Application for subsidiary protection refused - Deportation order made - Whether applicant refugee sur place - Concept of refugee sur place - Whether applicant who had deliberately created circumstances in country of residence exclusively for purpose of subsequently justifying claim for refugee status entitled to be treated as refugee sur place - Concept of bad faith - Whether genuine and well founded fear of persecution - Whether Minister precluded from giving effect to deportation order pending determination of leave application commenced within the statutory time period - Effect of deportation - Somaghi v Minister for Immigration (1991) 31 FCR 100; Re HB (Case 2254/94) 1995) IJRL 332; Mohammed v Minister for Immigration [1999] FCA 868; R v Immigration Appeal Tribunal, ex p B [1989] Imm AR 166 and Bastanipour v Immigration and Naturalisation Service 980 F2d 1129 (1992) considered - Danian v Home Secretary [2000] Imm AR 96 and FV v Refugee Appeals Tribunal [2009] IEHC 268 (Unrep, Irvine J, 28/5/2009) approved - AAP v Minister for Justice [2010] IEHC 297, (Unrep, Cooke J, 20/7/2010) distinguished - LA v Minister for Justice (Ex Tempore, Hogan J, 21/12/2010) applied - European Communities (Eligibility for Protection) Regulations 2006 (SI 518), article 5(1)(d) - Council Directive 2004/83/EC, arts 4 and 5 - Geneva Convention 1951, arts 1 and 33 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Immigration Act 1999 (No 22), s 3 - Injunction granted pending outcome of leave application (2010/1455JR - Hogan J - 21/01/2011) [2011] IEHC 16

MH v Minister for Justice

1 1. The concept of the refugee sur place is one of the most difficult in the entirety of immigration and refugee law. Events which take place since the applicant left his country of origin may now expose him or her to a well founded fear of persecution or a real risk of suffering serious harm.

2 2. There are, of course, straightforward cases where external events such as the outbreak of war, revolutions and coups have created a new generation of émigré refugees. There are, however, less straightforward cases where the applicant engages in self-serving actions in order to bolster a case for refugee status in his chosen country. Thus, an applicant with no interest in political activity might nonetheless take advantage of the freedoms available in his chosen country by, for example, writing a letter to a newspaper which denounced the regime of his country of origin and availing of this as a pretext and justification for a refugee claim. Examples from other jurisdictions include Somaghi v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 F.C.R. 100 (where two Iranians had sent letters criticising the Iranian regime to the Iranian Embassy in Canberra with a view to bolstering their asylum claim) and Re HB (1994) (where the New Zealand Refugee Status Appeals Authority found that an Iranian had falsely claimed on New Zealand television that he had purchased a copy of The Satanic Verses and brought this copy with him to Iran as a pretext for his asylum claim).

3 3. The difficulty, however, is that while contracting states are fully entitled to view such claims with circumspection and even suspicion, there may be examples where the bad faith and mendaciousness of such an applicant actually succeed to the point whereby such actions nonetheless places him at serious risk were he to be deported.

4 4. The question of the ambit of the refugee sur place is raised directly in this application for an interlocutory injunction. Put briefly, the applicant claims to be an Afghan who first left Afghanistan in 1999 and travelled to Iran. He claims that while he was in Iran he was introduced to Christianity by his employer. He then says that following the overthrow of the Taliban in late 2001, the Iranian authorities began the return of Afghanis to their country of origin. At that point he fled Iran because he contended that his life would be in danger by reason of his Christian beliefs if he returned to Afghanistan.

5 5. The applicant arrived in Ireland in 2005. At one point he appears to have been heavily involved with the Jehovah Witnesses, a fact attested to by various testimonials submitted on his behalf to the Refugee Appeals Tribunal and subsequently to the Minister. At the hearing before me I was informed by Mr. Noonan that the applicant had now become involved with an evangelical Christian Church. This, however, was not put on affidavit and no details were given. For the purposes of this application I will assume that the applicant has sought to involve himself in at least two different Christian churches.

6 6. There is no doubt but that the applicant's engagement with the asylum system in this State has a number of distinctly unsatisfactory features. Thus, for example, whereas the applicant had originally denied that he had applied for asylum elsewhere in the EU, it transpired that he had, in fact, applied for asylum in both Greece and the United Kingdom. It is equally clear that the applicant did not cite his religious views when grounding his application for asylum, as the reason given was race. I should add here that the applicant claims to be an ethnic Hazara, one of the larger ethnic minority groups in Afghanistan who have in the past suffered persecution, discrimination and neglect.

7 7. The applicant's asylum claim was ultimately rejected by the Refugee Appeals Tribunal in a very elaborate and comprehensive decision given by Ms. Elizabeth O'Brien on 7th October, 2008. The Tribunal essentially found against the applicant on credibility grounds and it should be noted that these findings were never challenged by way of judicial review. The applicant did, however, apply for subsidiary protection in November 2009, but this was refused by the Minister on 12 ^th October, 2010. The Minister made a deportation order on 20 ^th October, 2010. These proceedings were commenced within the 14 day statutory time limit specified by s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

The availability of State protection in Afghanistan

8 8. The present application for interlocutory relief focussed principally on the question of whether the applicant could realistically claim to be a refugee sur place. Before turning to that question, it may be appropriate to address the question of whether the applicant could seek State protection in Afghanistan, assuming for the moment that the applicant can be regarded as a Christian convert from Islam.

9 9. The latest country of origin reports for Afghanistan dating from 2009 (and which were before the Minister in the examination of file for the purposes of s. 3 of the Immigration Act 1999) all suggest that the position of Christians in Afghanistan is, putting matters as their very best, a very difficult one. It is true that there may be instances where certain expatriates such as diplomats, visiting politicians or members of the International Security Assistance Force may engage in Christian worship. This, however, is likely either to be within the precincts of the diplomatic quarters in Kabul or perhaps within the confines of a military camp. As the country of origin information notes, however, this option is not available to the small number of Afghan Christians who would still fear for their safety.

10 10. The position of Afghans who have converted from Islam is even more fraught. This is considered apostasy and which is punishable by death under some interpretations of the Shar' ia law. Many of the country of origin reports refer to the cause celebré involving one Abdul Rahman in 2006, a convert to Catholicism, who was later denounced by his family and charged with apostasy. Rahman was later deemed mentally unfit to stand trial by the Afghan judiciary. He was then released from prison and given asylum by Italy. Some members of the Afghan judiciary are reported publicly to have criticized the decision to release him.

11 11. The US State Department's...