The High Court has quashed a refusal of subsidiary protection after finding that contradictory language in the decision left unclear whether a Bangladeshi man’s account of facing imprisonment had been rejected.
Mr Justice Richard Humphreys ordered that the application be returned to the International Protection Office for consideration of its subsidiary protection aspect. The case concerned the refusal of subsidiary protection, not the earlier asylum decision, which was outside the relief ultimately pursued.
The applicant, identified in the judgment as J.A. (Bangladesh), said he had been convicted in absentia in Bangladesh in June 2008 and sentenced to life imprisonment. He arrived in Ireland in December 2008 and claimed asylum. His account was rejected by the Refugee Applications Commissioner in 2009 and by the Refugee Appeals Tribunal in 2010.
He later sought subsidiary protection, arguing in part that he would face serious harm from prison conditions if required to serve the sentence. The Minister refused that application in 2011, relying on the tribunal’s credibility findings, and made a deportation order. The applicant challenged the subsidiary protection refusal and deportation order, but the deportation order was revoked in 2015 after he was granted permission to remain based on his marriage to an EU national.
By the hearing, the only relief sought was an order quashing the subsidiary protection refusal. The applicant argued that the decision-maker had failed to address his claim about harsh prison conditions. The judge said a decision-maker need not assess that risk if the applicant’s account of likely imprisonment has clearly been rejected.
But the tribunal and Minister’s decisions also referred to the applicant fleeing “prosecution”. The judge said that wording implied some possibility of imprisonment and, in the specific circumstances, called for express consideration of the claim about prison conditions. He concluded that the decision’s basis was not sufficiently clear because of the contradictions.
The court said the long delay in the proceedings meant it could not realistically order the decision-maker to clarify the reasoning through further statements or an affidavit. It therefore quashed the refusal and remitted the subsidiary protection application to the International Protection Office. The court did not decide whether the applicant would in fact face imprisonment or establish that prison conditions would amount to serious harm.
On costs, the applicant was awarded half of the costs for the initial phase of the case and the costs of the final substantive phase. The respondents were awarded costs for the intervening phase concerning an amendment based on earlier litigation, which the applicant ultimately abandoned. The parties’ respective costs may be set off, with any balance to be agreed or taxed.