HIGH COURT JUDGMENT:OF -v- Minister for Justice & Ors
Neutral citation number:(2012) IEHC 252.
High Court
Judgment was delivered on June 25th, 2012, by Mr Justice John Cooke.
Judgment
The court refused a judicial review of a refusal to give subsidiary protection to a Burmese man who had initially sought asylum. The court also refused a declaration that the 2006 regulations were invalid in not providing for a public hearing before an independent tribunal of an application for subsidiary protection.
Background
The man was a member of the Burmese Rohingyen ethnic minority, who was born in Burma but was obliged to flee with his uncle following the death of his parents. He claimed he had been living since with his uncle in a UNHCR refugee camp in Bangladesh.
Having been unable to find work because of his ethnicity, he said in 2008 he had been offered work by a religious group called
Harkat Ul Jihad, which was banned in Bangladesh. Shortly afterwards he said he had overheard a conversation where it was planned to sell him in Afghanistan to fight with terrorists. He fled and travelled to the Bangladesh capital, Dhaka.
He said a false claim of theft had been made against him by the religious group and his life would be in danger if he returned to Bangladesh. He arrived in Ireland in 2008.
The Office of the Refugee Applications Commissioner refused his asylum application in January 2009 on the basis that his account lacked credibility and that he had enjoyed protection as a refugee in Bangladesh.
This was upheld by the Refugee Appeals Tribunal. Among the reasons for doing so was the finding of the tribunal member that he could not speak the Rohingyen language and the “family book” he produced from the UNHCR camp appeared to have been tampered with.
The applicant then applied for subsidiary protection, claiming he would be subjected to “degrading treatment” if returned to Bangladesh. His counsel said this was based on the fact that members of the Rohingyen minority suffered mistreatment, discrimination and hardship, and the danger of his being sold to Afghanistan constituted a threat of “serious harm”.
His counsel said the Minister had not made a finding that the applicant was not a member of the Rohingyen minority. He argued he was therefore obliged to consider the treatment he might receive as a Rohingya if returned to Bangladesh. He said the Minister did not consider this in his refusal to grant subsidiary protection.
Decision
Mr Justice Cooke said this contention was unfounded because it relied on an unduly formalistic dissection of the decision. He said the writer of the determination raised doubts as to whether the applicant had spent 15 years in a refugee camp, or was among the 200,000 Rohingya living in Bangladesh outside camps and without legal status.
He claimed to have lived for upwards of 15 years in Bangladesh and did not claim to have at any stage been subjected to any particular incident or deliberate or violent mistreatment.
It was undoubtedly the case that a Rohingyen resident in Bangladesh may face economic and social difficulties, including unemployment, the denial of access to humanitarian aid and education and curtailment of freedom of movement.
However, this did not bring the claim within the scope of “serious harm” required for subsidiary protection.
This corresponded to the protection under article 3 of the European Convention on Human Rights, which referred to torture or inhuman and degrading treatment. The court found that the claim that the applicant had suffered discrimination amounting to persecution and torture had not been substantiated and refused the application.
In a similar case where the issue of a public hearing before an independent tribunal of an application for subsidiary protection arose, Mr Justice Cooke said that the submission was based on a misapprehension of the process of adjudicating on applications for international protection under the Refugee Act 1996, combined with the 2006 Regulations.
The process was a continuing and coherent examination of the status of the applicant in international and EU law. An applicant has an enhanced opportunity of being heard in that the application for subsidiary protection is made when the applicant knows why his application for asylum has not been successful.
This point was then not reargued by this applicant.
The full judgment is on courts.ie
Michael McGrath BL, instructed by Thomas Coughlan, Cork, for the applicant; David Conlon Smyth BL, instructed by the Chief State solicitor, for the Minister.