The High Court has dismissed H.M.’s challenge to the refusal of subsidiary protection and a deportation order, finding no evidence that his claimed conversion to Christianity would be discovered in Afghanistan.
In a judgment delivered on 27 April 2012, Mr Justice Cross dismissed the judicial review of the Minister for Justice’s subsidiary protection decision of 12 October 2010 and deportation order of 20 October 2010. The court’s ruling addressed whether those decisions should be set aside; it did not overturn the Refugee Appeals Tribunal’s earlier credibility findings, which had not themselves been challenged.
H.M. claimed to be an Afghan national and an ethnic Hazara who had left Afghanistan for Iran in 1999. He said he converted from Islam to Christianity while in Iran and feared that return to Afghanistan would expose him to punishment for apostasy under Sharia law. The Refugee Appeals Tribunal rejected his asylum claim in 2006, finding him not credible and treating the conversion as insincere. The judgment records that he had also given false information about previous asylum applications in Europe.
The applicant argued that the Minister had relied on country information selectively and had failed to assess whether an Afghan religious judge would regard his apparent conversion as apostasy, even if it was opportunistic. The Minister’s position was that the Tribunal’s credibility findings could be relied on and that the applicant had not supplied new information or made the relevant argument during the subsidiary protection process.
Justice Cross said bad faith alone could not automatically defeat a claim for protection: the central question remained whether there was a well-founded risk of persecution or serious harm. But he said the risk analysis here also depended on whether the applicant’s activities would be discovered. The judgment found no evidence that anyone in Afghanistan would learn of the purported conversion. The applicant had not explained how information about his religious activities in Ireland could reach Afghanistan or why he would attract the attention of a religious court.
The judge therefore did not consider it necessary to decide how a hypothetical Afghan religious judge would treat the applicant’s apparent conversion. He also concluded that the state-protection finding was not central to the Minister’s decisions, because the claimed need for protection depended on a risk arising from the conversion being discovered.
The court dismissed the applicant’s claims. The judgment does not state that a deportation was carried out.