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Cite as: [2013] IEHC 244
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Judgment Title: J.A -v- Refugee Appeals Tribunal & Ors Neutral Citation: [2013] IEHC 244 High Court Record Number: 2011 899 JR Date of Delivery: 19/04/2013 Court: High Court Composition of Court: Judgment by: McDermott J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 244 THE HIGH COURT JUDICIAL REVIEW [2011 No. 899 J.R.] BETWEEN J. A. APPLICANT AND
REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT of Mr. Justice McDermott delivered on the 19th day of April, 2013 The Reliefs Sought 2. The second notice of motion issued was dated 6th October, 2011, and sought to amend the statement of grounds to incorporate a challenge to the deportation order made by the second named respondent. 3. The application to seek leave to apply for judicial review in respect of the decision of the Refugee Appeals Tribunal dated 2nd July, 2010, should have been made within fourteen days of its notification to the applicant. The notice of motion seeking to amend the grounds in respect of the deportation order issued on 6th October, 2011, and a challenge to that order is therefore within time. An extension of time to challenge the Tribunal decision cannot be brought pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000, unless the High Court considers that there is good and sufficient reason for extending the period within which the application should have been made. Although an application to extend the time has been made to this Court, no evidence setting out the reasons for the delay in applying for judicial review has been submitted. 4. The normal procedure in respect of a challenge to a refusal to grant subsidiary protection is to bring an application ex parte to the High Court but in this instance the application was included in the first notice of motion dated 26th September, 2011, as a matter of convenience. That application was made within time pursuant to the normal rules then applicable under O. 84 of the Rules of the Superior Courts. A further application was later made to this Court following the decision of the High Court in M.M. v. Minister for Justice, Equality and Law Reform [2013] IEHC 9 which followed the decision of the European Court of Justice in M.M. v. Minister for Justice, Equality and Law Reform, Ireland and the Attorney General [2012] EUECJ, C-277/11 (22nd November, 2012), in which the applicant sought to amend the grounds upon which the challenge to the refusal of subsidiary protection was originally brought. The new grounds were based upon the recently delivered decisions, to which I will return. Background 6. Following receipt of the “three options” letter the applicant applied for subsidiary protection on 7th September, 2010, following which he received notification of its refusal on 9th September. 7. At the time of his application for asylum the applicant’s parents resided in Bangladesh. He was single, and had two brothers and a sister. He claimed that his father was a public representative and social worker. His father stood for election and succeeded in being elected chairman of a local village council in 1997 and served as such until 2002. It was claimed that his opponent’s son was jealous because the applicant’s father had been elected and, as a result, threatened the applicant three times following the election. The applicant claimed that he was first threatened following his father’s election in 1997. He was again threatened on 26th October, 2002, by the same man who this time threatened his life. Shortly afterwards, it was claimed that his father held a meeting at which his opponent’s son asked for forgiveness of the applicant’s father for the threat. A third threat was made, again to his life on 14th November, 2003. This was allegedly accompanied by a threat by the same man that he would accuse the applicant falsely of a robbery or murder. Following this threat the applicant’s father went to the local police and made a complaint. The applicant then claimed that the same man falsely accused him of robbing his home with others on 25th January, 2004. His father went to the police station to inquire why his son had been accused of robbery and was told by the police that it was because they believed that he had committed it. The applicant then absconded. A warrant issued for his arrest on 22nd September, 2004. The applicant denies the charge and alleges that it was falsely and maliciously made by the son of his father’s electoral opponent in 1997 who procured false testimony against him. 8. Thereafter, the applicant claims that he was charged and prosecuted for robbery and following a trial held in his absence, convicted on 9th June, 2008, in a District Court following which he was sentenced to life imprisonment. He claimed that the son of his father’s opponent made these false allegations against him because of his desire to insult his father, lower the reputation of his father’s family and his standing in the community. Following his conviction and sentence on 15th October, 2008, the applicant and his father decided that the applicant should leave Bangladesh and his father arranged this for a sum of €8,000. 9. A number of documents were submitted by the applicant which he claimed were related to the investigation of the robbery and his trial. These were:-
(2) A general diary dated 15th November, 2003, and translation; (3) An arrest warrant dated 26th January, 2004, and translation; (4) A First Information Report (police report FIR) dated 9th June, 2008, and translation; (5) A court report dated 9th June, 2008, and translation; (6) Purbkom newspaper article dated 10th June, 2008, and translation; (7) First Information Report (police report FIR) signed 26th January, 2004, and translation; (8) A DHL envelope in which these documents were said to have been sent to the applicant from Bangladesh.
13. The documents presented suggest that nine men were charged with the robbery. Six were on bail and three were present for the trial. Three were said to have absconded and it is stated that:-
14. On the applicant’s account, therefore, there is in fact a valid arrest warrant in existence against him following a trial before a court of competent jurisdiction in Bangladesh. A document said to be an arrest warrant issued by a Magistrate and dated 20th February, 2004, was also submitted. He claimed that when suspected of serious criminal offences by the police, he fled. He was charged and failed to appear at this trial. His father retained a lawyer on his behalf. He maintains that witnesses committed perjury at his trial in absentia. It is clear that the suggested motive for the false charge relates to a personal vendetta arising out of local village politics and personal animosity, and has nothing to do with political opinion or ideology or party politics or state or state sponsored persecution. The applicant accepts that a robbery took place at the house of the complainant and that a robber was arrested. He maintains that the complainant enticed the arrested robber to give the applicant’s name as one of his accomplices to the police. He made a deliberate choice to avoid his trial hoping to be acquitted at its conclusion. He made no allegation in his application for asylum that the investigation or prosecution of the offence by the authorities in Bangladesh was in any way biased or tainted by corruption. His request for asylum is based on his desire to avoid the consequences of the conviction. (See pp. 16 to 17 of the questionnaire dated 5th January, 2009). His story was repeated in the s. 11 interview in which he also claimed that his father was not a political figure, though he served as a councillor from March, 1998 to December, 2002. The Decision of the Refugee Appeals Tribunal 16. The Tribunal was satisfied that the documents produced, if valid, confirmed that he had been charged and convicted of a robbery and that a general diary produced appeared to be a record of a report that his father made to the police regarding threats allegedly made by the victim of the crime to the applicant. Although an arrest warrant was issued for him in September, 2004 in respect of the charges, the applicant was able to relocate within Bangladesh, though a fugitive, over a period of almost five years and was convicted in absentia. 17. The Tribunal doubted the credibility of the account given by the applicant concerning his trip to Ireland and pointed to inconsistencies in that account. It was noted that his case was based solely upon his unsupported personal testimony which could not be verified. The Tribunal concluded:-
19. The Tribunal also found that the applicant’s credibility was further undermined by the evidence considered under s. 11B of the Act in respect of:-
(b) Whether the applicant had provided a reasonable explanation to substantiate the claim that Ireland was the first safe country to which he had arrived since departing Bangladesh; (c) Whether the applicant had provided a full and true explanation of how he travelled to Ireland. 20. The Tribunal referred to country of origin information on forged and fraudulently obtained official documents in Bangladesh which included information from the Canadian High Commission and British High Commission in Daka (2009) and from the Country Information Service of the Australian Department of Immigration and Multicultural Affairs, which referred to the ready availability of falsified documents such as birth certificates. The Australian information indicated that asylum applicants from Bangladeshi political parties would often submit voluminous documentation to support their claims:-.
21. However, a conclusion was reached that the applicant was, in truth, fleeing prosecution rather than persecution. That finding is part of the Tribunal’s decision. It was also satisfied that country of origin information indicated that the judiciary was independent in Bangladesh and that the applicant could seek justice through the courts. It cited a United States State Department Report of 2006 which stated that Bangladeshi law provides accused persons with the right to be represented by counsel, to review accusatory material, to call witnesses and to appeal verdicts. It noted that there was no jury trial and that all cases were tried by judges. Trials were held in public and defendants have the right to an attorney, though state funded attorneys were rarely provided. Defendants were presumed innocent, had the right of appeal and had the right to see the government’s evidence against them. In that regard, no complaint was made in the application for asylum of any defect in the Bangladeshi criminal justice system such as to amount to a serious or flagrant denial of a fair trial. The court notes that the applicant alleged that his conviction was secured on the basis of evidence provided by an accomplice who was enticed by the complainant to give false testimony against the applicant and to nominate him as the robbers’ accomplice. 22. The Tribunal concluded that on the basis of the information provided by the applicant, he had not suffered any persecution for a Convention reason in Bangladesh nor was he likely to face persecution upon his return in respect of his membership of a particular social group or political opinion. The determination was based on a finding that the applicant lacked credibility in respect of his story. It also examined the claim on the basis that the applicant might have been the subject of prosecution and conviction. It concluded that even if it were to be accepted that a false charge was laid and false testimony procured against him in order to procure his conviction for robbery arising out of personal jealousy of the failed candidate’s son against this father for winning an election, that did not amount to a fear of persecution within s. 2 of the Refugee Act 1996. The Tribunal concluded that the applicant left Bangladesh, on his own evidence, “fleeing prosecution…not persecution”, that is to avoid imprisonment following the conviction. The Challenge to the Tribunal Decision 24. The second argument advanced under the rubric of these grounds is that the Tribunal considered the documents submitted by the applicant in a manner which was confusing in that they were relied upon to make a credibility finding and a finding that the applicant was fleeing prosecution rather than persecution whilst at the same time concluding that the veracity of the documents was disputed. It was submitted that each of the three findings appeared to be mutually exclusive. This is an incorrect assessment of the Tribunal decision. The court has already set out the basis upon which the Tribunal considered the story told by the applicant in the context of the documents that were submitted. The documents were not verifiable. The story was not thought to be credible insofar as it alleged political persecution. The Tribunal determined that the evidence did not establish a fear of persecution but only that the applicant was evading justice. The Tribunal in considering the matter in this manner took the applicant’s case at its highest notwithstanding doubts about documentation and determined that the applicant could not establish a fear of persecution. Contrary to the submission made by the applicant, the court is satisfied that the principles set out by Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform and the Refugee Appeals Tribunal [2009] IEHC 353 were applied, and in particular that the assessment of credibility was made by reference to the full picture that emerged from the available evidence and information taken as a whole “when rationally analysed and fairly weighed”, and that the reasons given related to the substantive basis of the claim made. Accordingly, the court is satisfied having reviewed the Tribunal’s decision that the applicant’s claims in this regard do not afford substantial grounds upon which to seek leave to apply for judicial review. Though the Tribunal has accepted that the applicant failed to establish a fear of persecution based on a Convention reason because his evidence was not credible in that regard, nevertheless, the finding remains that he was a fugitive from justice in Bangladesh. Article 39 of Directive 2005/85 – Grounds 3 and 11 Extension of Time to Challenge the Tribunal Decision 27. The applicant also complained that the determination of the Refugee Appeals Tribunal lacked precision and was based on supposition and conjecture. Having reviewed the Tribunal’s decision, the court is satisfied that this generalised submission is without substance. The Deportation Order and Letter – the Identity of the Applicant Subsidiary Protection 30. It is clear that the applicant originally challenged the subsidiary protection decision within time and a number of grounds were set out in the original application (grounds 12 – 19). These included pleas that:-
(2) There was a failure to provide an effective remedy (ground 16); (3) The subsidiary protection decision insofar as it was based on the country of origin reports relied upon was irrational and unreasonable (ground 18); and (4) The decision insofar as it failed to consider and determine the actual application submitted was reached without due regard to fair procedures and natural and constitutional justice (ground 19). 32. By notice of motion dated 26th February, 2013, the applicant sought to amend the statement of grounds again and an extension of time to do so on the basis of the following draft ground:-
34. The reason for seeking this amendment is set out in the written submissions of the applicant and arose from the decision in M.M. v. Minister for Justice, Equality and Law Reform, Ireland and the Attorney General (Case C-277/11) by the European Court of Justice on 22nd November, 2012, following a reference by Hogan J. for a preliminary ruling in relation to a subsidiary protection decision challenge. The court rejected the applicant’s argument concerning the interpretation of Article 4(1) of the Qualification Directive and held that the duty of cooperation did not require the subsidiary protection decision maker to supply the applicant with a draft of any possible adverse decision for comment prior to its formal adoption. That effectively deals with ground 14 in this case. The European Court of Justice, however, went on to consider the right of a foreign national to be heard in the course of the examination of his subsidiary protection application and concluded:-
36. The applicant further submits that this involves a radical departure from existing jurisprudence in Ireland in that previously there had been a number of High Court decisions which held that the Minister in a subsidiary protection application was entitled “indeed obliged” to take into account the findings made in the asylum process and which have, of course, been accepted as the basis for his refusal of the declaration under s. 17(1) of the 1996 Act. It had been found that where the decision of the Tribunal finds an asylum seeker’s claim implausible or lacking in credibility such that the events described or the facts relied upon were considered not to have happened or not to have involved the applicant, there was no obligation on the Minister to reconsider the same facts or events or to decide whether they should be considered plausible or credible in the light of explanations given in the application for subsidiary protection “at least in the absence of new evidence, information or other basis capable of demonstrating that the original findings were vitiated by material error on the part of the decision makers”. It was, therefore, submitted that the applicant was only now in a position to make this further legal argument as set out in the proposed amended ground following the decision of Hogan J. in January, 2013. 37. It was further submitted that an extension of time in relation to the amended of grounds should be granted. 38. It is also submitted that the ground is arguable because the consideration prepared for the Minister prior to the making of the subsidiary protection decision relied heavily on the adverse credibility findings of the Tribunal which were recited in the report. It is submitted, therefore, that the Minister failed to carry out an independent and separate adjudication on the applicant’s claims that he would suffer serious harm if returned to Bangladesh. The Application for Subsidiary Protection 40. The first subheading is under torture, inhuman or degrading treatment or punishment. The court has already referred to details of the applicant’s claim as set out in his application for asylum including claims that the applicant has already been subject to such treatment in that he was threatened a number of times by the person who ultimately made the criminal complaint against him. It then claimed that the treatment already suffered by the applicant supports his contention that he is at risk of further torture if returned and that this was borne out by country of origin information. However, there is absolutely no allegation in his application for asylum or, in any evidence submitted up to that point, that the applicant had been tortured or subjected to any process that might constitute a violation of Article 3 of European Convention on Human Rights. 41. It was also claimed that if the applicant were to be returned to Bangladesh he would be at risk of being imprisoned and subject to inhuman and degrading treatment. The submission is made that he was charged, convicted and sentenced to life imprisonment for a crime he did not commit and that “the judicial system in Bangladesh is corrupt”. This is the first allegation made by the applicant of corruption in the Bangladeshi judicial system and he has never made an allegation that his trial was corrupt in any particular respect. He claims that the case against him was based on the evidence of an accomplice whom he claims was enticed to give evidence against him by the complainant in the robbery charge. His allegation is that his conviction arose out of false testimony given against him, not that the police investigation or the trial process was corrupt. Determination of Application for Subsidiary Protection 43. The determination also cites the conclusion that the applicant was “fleeing prosecution in Bangladesh, not persecution”. It noted that country of origin information indicated that the judiciary was independent in Bangladesh and that the applicant could seek justice through the courts. The court has already determined that the Tribunal decision is to be interpreted as a finding that the applicant was lacking in credibility on the core issue of his claim in relation to political persecution. The documents submitted in relation to his trial and conviction were found not to be “verifiable”. But even if they were, and proved that he had been convicted and sentenced, this did not amount to grounds upon which to hold that he had a fear of persecution because of the limited and local nature of the dispute between two families that lay at the root of the alleged procurement of false testimony against him. 44. It is still the applicant’s claim that he is a convict sentenced to life imprisonment in Bangladesh, which he must serve on return. He fears torture and inhuman and degrading treatment if imprisoned in Bangladesh because of the appalling prison conditions which he claims exist there. This is to an extent supported by country of origin information submitted in the course of his application for subsidiary protection. Although the Tribunal found the applicant to be lacking in credibility on the core issue, its decision that the applicant left Bangladesh for fear of prosecution rather than persecution was not given particular significance by the decision maker in the subsidiary protection decision. However, as already noted, the Tribunal found that “it is considered that the applicant is fleeing prosecution in Bangladesh not persecution”. Thus, that element of the story has been accepted. Though the applicant was not entitled to protection on the grounds claimed, the issue of his potential imprisonment should he return to Bangladesh should have been fully addressed in the application for subsidiary protection, particularly in the light of the emphasis in the M.M. judgment on the separate nature of the procedure required when considering subsidiary protection in this jurisdiction. 45. The court is, therefore, satisfied that the applicant has established that the Minister has failed to consider the core basis of his application for subsidiary protection namely, his fear that as a person convicted of a criminal offence and sentenced to life imprisonment, he is in danger of a threat to his life and/or torture, inhuman or degrading treatment if returned to Bangladesh to serve that sentence. This finding was acknowledged in the summary of the findings on credibility set out in the subsidiary protection decision, but mistakenly under a heading which considered aspects of the applicant’s lack of credibility. Clearly, the Tribunal decision made a finding accepting his reason for leaving Bangladesh but rejecting the alleged political motivations of the complainant of the robbery charge. The fear of the threat to his life and/or torture, inhuman or degrading treatment was not addressed in the decision at all and the court is, therefore, satisfied that Ground 19 of the applicant’s grounds is stateable. 46. Further, the court is disposed, with some hesitation, to grant liberty to the applicant to amend his application on the ground already quoted and, for that purpose, the court will extend the time for the making of this application. The court is satisfied to do so on the basis that this case is at a preliminary stage and further, because it is difficult to see any prejudice to the respondent in allowing the amendment. Though argument had concluded on the leave stage on 12th July, 2012, save for the decision in H.I.D. & B.A., I am nevertheless satisfied that as a matter of justice to the applicant, liberty should be granted to amend the grounds as is sought. 47. The court is not satisfied to grant leave to apply for judicial review on grounds 12, 13, 14, 15, 16, 17 or 18. 48. It should be noted that the previous determination by the Tribunal that the applicant is fleeing justice in Bangladesh raises an issue as to how this aspect of the decision should be considered if the applicant is successful in these proceedings. If successful, it may well be that he will not be able to rely on the finding of fact in that regard at a later review of the subsidiary protection application by reason of the M.M. decision, because any future adjudication may require the issue to be reconsidered separately and afresh by the decision maker. It may also mean that if successful under ground 19, relief in respect of the amended ground may be unnecessary as any future determination in respect of subsidiary protection would have to be conducted in accordance with the M.M. principles. The Deportation Order 50. An examination of the applicant’s file under s. 3 of the Immigration Act, 1999 was carried out by officials. The applicant’s case was considered under s. 3(6) of the Immigration Act 1999, and s. 5 of the Refugee Act 1996. Refoulement was found not to be an issue in the case and no issue was said to arise under s. 4 of the Criminal Justice (United Nations Convention against Torture) Act 2000. Consideration was also given to private and family rights under Article 8 of the European Convention on Human Rights. 51. Humanitarian considerations were addressed under s. 3(6)(h) of the Act and the conclusion was reached that in the light of case law which has established that a state is not under any general obligation to permit an individual to remain in their state solely for the purpose of obtaining medical treatment of a level not available to them in their own country, there was nothing to suggest that the applicant should not be returned to Bangladesh on that basis, and it was added that it seemed possible that the applicant came to the state for the purposes of availing of health care rather than fleeing persecution. 52. In respect of s. 5 of the Refugee Act 1996, and Article 3 of the European Convention on Human Rights, the examination of file repeats the findings of fact made by the Tribunal. It omits the finding in the Tribunal decision that the applicant’s problems related to alleged false accusations due to a dispute between two families and that “it is reasonable to conclude that the applicant’s claim of a fear of persecution lacks both substance and credibility”. There is no reference to prison conditions in Bangladesh which was part of the applicant’s claim in relation to Article 3 of the Convention and in respect of s. 5 of the Act. Therefore, the applicant contends that there are substantial grounds on that basis to grant leave to apply for judicial review in respect of an order based on the consideration of an examination of file which failed to address a core issue in the applicant’s claim. This matter is covered by ground 24 in the proposed amendment of grounds sought by notice of motion dated 6th October, 2011. 53. The applicant also complains that the deportation order dated 23rd September, 2011, was not signed by the Minister (ground 22). The court is not satisfied to grant leave to apply for judicial review on this basis which is governed by the decision of Hogan J. in L.A.T. v. Minister for Justice and Equality and Ors [2011] IEHC 404. 54. The court is not satisfied that any of the other grounds advanced by the applicant by way of challenge to the deportation order amount to substantial grounds under s. 5 of the Illegal Immigrants (Trafficking) Act 2000. Accordingly, the court will only grant an amendment to the statement of grounds in respect of ground 24 of the proposed amendments the subject of the notice of motion of 6th October, 2011. Conclusion |