Ireland - High Court, 27 April 2012, H.M v Minister for Justice and Law Reform, [2012] IEHC 176

Facts:

The Applicant sought judicial review to quash the Minister’s refusal to grant subsidiary protection and the subsequent deportation order issued against him. The Applicant was an Afghan national who left Afghanistan and worked for five years in Iran prior to entering Ireland and claiming asylum. He claimed to have converted to Christianity and become a Jehovah Witness while working for a Christian in Iran. In his initial asylum application he described himself as a Muslim but explained this by stating that he had not wanted to disclose his conversion to a fellow Afghani who had assisted him in filling out the questionnaire.

He claimed that he now feared for his life because of his rejection of the Muslim faith and conversion to Christianity which constitutes the crime of apostasy under Sharia law. His claim was rejected by the RAT which found that his conversion was not credible and had been undertaken solely in order to create grounds for claiming asylum. The decision of the RAT was never challenged by the Applicant. In considering the subsidiary protection application, the Minister similarly determined that the Applicant had acted in bad faith and was not a refugee sur place.

The Applicant, argued that section 5 of the Refugee Act 1996 and Article 5(1)(d) of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) require the Minister to satisfy himself that no serious harm or persecution will arise, notwithstanding an adverse credibility finding. This should include consideration of how an Islamic judge in Afghanistan would be likely to regard the Applicant’s engagement (genuine or otherwise) with Christianity.

The Respondent argued that the findings of the RAT in relation to the Applicant’s credibility had not been challenged. The Respondent was entitled to rely on these and it was not believed that the Applicant’s engagement with Christianity would come to the attention of any authorities in Afghanistan because it was not a genuine conversion and so there was no reason for the Applicant to disclose it.

Decision & reasoning:

As the decision of the RAT had not been challenged directly, the Court stated that a challenge cannot issue indirectly by way of judicial review of the subsidiary protection decision. However, if “the foundations are proved unstable, in the judicial review sense, this will undoubtedly serve to undermine the legitimacy of the subsequent decisions.” On this basis, the Court then assessed the reasoning of the RAT in relation to credibility and the issue of a refugee sur place.

It held that the RAT was entitled to come to the conclusion that the Applicant was not credible and that the Minister was entitled, if not obliged, to follow the same credibility findings. In his subsidiary protection application, the Applicant was obliged (following the Debisi case (N.D. v MJLR [2012] IEHC 44)), to point to new facts or 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, which the Applicant did not do in this case.

The Court stated that a refugee sur place, would inevitably face significant credibility problems, but accepted that notwithstanding that the Applicant acted with a cynical motive, it still must be determined whether he had a well-founded fear of persecution, considering the perspective of “an Afghani religious judge and what would count as conversion in their eyes.

The Court considered the likelihood of the Applicant’s activities being discovered and stated that there must be a “realistic possibility demonstrated” that a Sharia judge would ever consider the matter. The case in hand was distinguished from the Bastanipour case where discovery of the Applicant’s conversion was a possibility, if not an inevitability, because the conversion was believed to be genuine and, therefore, that person was likely to practice his religion. The Court held that a genuine convert to Christianity would almost certainly be classified as a refugee sur place. In the case at hand, there was no reason to believe the Applicant would voluntarily draw the attention of anyone in Afghanistan to his engagement with the religion. The Court found that, while the Applicant maintained his conversion was genuine, at no stage of the proceedings had he argued that, if it was found not to be genuine, he would still be in some way in danger and so it was not for the Court to do so. In these circumstances, the Court stated that it was not necessary to address the second limb of the test i.e. the hypothetical reaction of a hypothetical Sharia Afghani judge.

Outcome:

The application for judicial review was dismissed in its entirety.

Other sources:

Hely: "A lack of good faith; Australia's approach to 'Bootstrap' refugee claims". Journal of Migration and Refugee Issues, [2008] Vol 4, Issue 2 pp. 66-79