Ireland - High Court, 21 January 2011, H.M. v Minister for Justice, Equality, Law Reform, [2011] IEHC 16
| Country of Decision: | Ireland |
| Country of applicant: | Afghanistan |
| Court name: | High Court |
| Date of decision: | 21-01-2011 |
| Citation: | [2011] IEHC 16 |
| Additional citation: | 2010 No. 1455 J.R. |
Keywords:
| Keywords |
|
Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
|
Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
Headnote:
The case involves analysis of Art 5 of the Qualification directive. The applicant converted to Christianity in Ireland.
The Court stated that when analysing the behaviour of an applicant in the country of asylum, in this case conversion to Christianity, the issue is how such behaviour would be considered in the country of origin. Also, that while the state is entitled to view some claims based on sur place activities with a heightened degree of scepticism, the question involves whether, objectively, the applicant has a well-founded fear of persecution.
The Court granted leave to the applicant for judicial review of the decision of the Minister for Justice to issue a deportation order.
Facts:
The applicant was an Afghan national who left Afghanistan in 1999 and travelled to Iran. While in Iran he was introduced to Christianity. Fearing he would be returned to Afghanistan the applicant fled. On his journey to Ireland he claimed asylum in Greece and then the United Kingdom. He arrived in Ireland in 2005. In Ireland he was involved with the Jehovah Witnesses and another Christian Church.
The applicant based his initial application for asylum on his Hazara ethnicity. His claim was refused by the Office of the Refugee Applications Commissioner (ORAC). The ORAC decision was affirmed by the RAT (Refugee Appeals Tribunal). Both the ORAC and the RAT found the applicant not to be a truthful witness. The RAT found that his conversion to Christianity was not done in ‘good faith’ and that his conversion was ‘opportunistic’.
The applicant applied for subsidiary protection. The Minister for Justice, Equality and Law Reform, placing significant reliance on the decision of the RAT, found that the applicant was not truthful and refused the subsidiary protection application and issued the applicant a deportation order.
The applicant applied for leave to apply for judicial review and an interlocutory injunction preventing deportation. Hogan J, in the High Court, granted leave to apply for judicial review.
Decision & reasoning:
The judge stated that the RAT member had made an error by finding that, while the applicant had converted, he had only done so opportunistically. The Judge stated that this approach was incorrect and that the correct approach is to consider the applicant’s conversion to Christianity from the perspective of an Afghan religious judge.
The judge, making more general comments on Art 5.2 of the Qualification Directive, states that while Member States are entitled to treat claims based on actions in the country of asylum, such as conversion to a religion, with a heightened degree of scepticism, the key point remains whether the applicant has a well-founded fear of persecution.
That the Minister for Justice had relied on the decision of the RAT, which contained erroneous reasoning, therefore infected the decision of the RAT and made it unsafe.
Outcome:
Leave to apply for judicial review of the Minister for Justice‘s decision was granted.
Observations/comments:
Obiter Comments: The Minister for Justice, Equality and Law Reform’s statement that the applicant could seek protection from the police and judicial system in Afghanistan, based on country of origin information from 2009, was “hopelessly optimistic”.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| UK - Court of Appeal, 28 October 1999, Danian v Secretary of State for the Home Department [1999] EWCA Civ 3000 |
| Australia - Mohammed v. Minister for Immigration and Multicultural Affairs [1999] F.C.A. 868 (Australia) |
| Australia - Somaghi v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 F.C.R. 100 |
| New Zealand - Re HB (1994) |
| United States - Bastanipour v. Immigration and Naturalisation Service 980 F.2d 1129 (1992) |
| UK - R v. Immigration Appeal Tribunal, ex p. B. [1989] Imm A.R. 166 |
| Ireland - A. v Minister for Justice, Equality and Law Reform [2010] IEHC 297 |
| Ireland - F.V. v Refugee Appeals Tribunal [2009] IEHC 268 |
Follower Cases:
| Follower Cases |
| Ireland - High Court, 11 September 2012, Barua v Minister for Justice and Equality, [2012] IEHC 456 |