A.A.L. (Nigeria) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2018
• Neutral Citation: [2018] IEHC 792
• Court: High Court
• Docket Number: [2018 No. 371 J.R.]
• Date: 21 December 2018

[2018] IEHC 792

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 371 J.R.]

BETWEEN

A.A.L. (NIGERIA)

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

Subsidiary protection – Credibility – Judicial review – Applicant seeking certiorari – Whether the respondent acted in breach of the UNHCR handbook, the International Protection Act 2015, the Charter of Fundamental Freedoms and the European Convention on Human Rights

Facts: The applicant claimed to have been born in Nigeria in 1980. He claimed that his mother was a Christian and his father a Muslim. He claimed the father converted to Christianity and that as a result the family were attacked and the mother killed in 2007. He travelled with the father to London for two weeks in 2010. He claimed that the church where the father worshipped was bombed in December, 2011. He went to the U.K. thereafter. He arrived in Ireland on 16th January, 2012 and applied for asylum on 19th January, 2012. That application was deemed withdrawn on 22nd October, 2013 when, contrary to statutory obligations, he left direct provision accommodation without a forwarding address. On 20th March, 2017, a deportation order was made. He then applied for subsidiary protection on 24th April, 2017. The deportation order was revoked on 29th May, 2017 in the light of the subsidiary protection application. He was interviewed on 21st June, 2017, when he was unable to give dates of many of the key incidents of his account and said that he was “not mentally ok”. The International Protection Office rejected the credibility of his account. On 20th October, 2017, a notice of appeal was submitted to the first respondent, the International Protection Appeals Tribunal (IPAT). On 24th April, 2018, the IPAT rejected the appeal. The tribunal made a series of adverse credibility findings which, as it was put in the applicant’s written submissions at para. 17, were such as to be “reaching a crescendo at para. 4.11 wherein the IPAT finds ‘this man’s known and externally verified actions show that his word is not a trustworthy source’”. The tribunal also noted at para. 4.6 that no medical or psychological evidence was proffered. The High Court (Humphreys J) granted leave on 10th May, 2018, the primary relief sought being certiorari of the IPAT decision. The applicant submitted that “in dismissing out of hand the Applicant’s explanations of suffering mental disability in response to allegations put that his credibility was undermined by contradictions…the Tribunal acted in breach of not only the UNHCR handbook and the International Protection Act 2015 but also provisions of the Charter of Fundamental Freedoms and the European Convention on Human Rights with respect to the protection of the moral integrity of the Applicant and to treat him in a manner which is non-discriminatory in light of the Applicant’s repeated disclosures with regard to his mental health”.

Held by Humphreys J that the applicant had provided no medical evidence of mental illness or disability. Humphreys J noted that the applicant’s explanations were simply rejected and held that this did not amount to dismissal out of hand. Humphreys J held that the claim of “breach” of the UNHCR handbook was not cognisable in Irish law. Humphreys J held that the ECHR was not directly cognisable as implied by the applicant’s ground of appeal; it only arises through the European Convention on Human Rights Act 2003, which was not referred to in the applicant’s ground. Insofar as breach of the 2015 Act and the Charter were concerned, Humphreys J held that the claim was inadequately particularised in that no specific provision was identified. Humphreys J held that the ground did not comply with O. 84 r. 20(3), so it would be inappropriate to grant relief in any event.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of December, 2018

1 The applicant claims to have been born in Nigeria in 1980. He claims that his mother was a Christian and his father a Muslim. He claims the father converted to Christianity and that as a result the family were attacked and the mother killed in 2007. He travelled with the father to London for two weeks in 2010. He claims that the church where the father worshipped was bombed in December, 2011. He went to the U.K. thereafter. He arrived in Ireland on 16th January, 2012 and applied for asylum on 19th January, 2012. That application was deemed withdrawn on 22nd October, 2013 when, contrary to statutory obligations, he left direct provision accommodation without a forwarding address. On 20th March, 2017, a deportation order was made. He then applied for subsidiary protection on 24th April, 2017. The deportation order was revoked on 29th May, 2017 in the light of the subsidiary protection application.

2 He was interviewed on 21st June, 2017, when he was unable to give dates of many of the key incidents of his account and said that he was ‘ not mentally ok’. The International Protection Office rejected the credibility of his account. On 20th October, 2017, a notice of appeal was submitted to the IPAT. On 10th April, 2018, an oral hearing took place, Ms. Lisa McHugh B.L. appearing for the applicant. On 24th April, 2018, the IPAT rejected the appeal. The tribunal made a series of adverse credibility findings which, as it is put in the applicant's written submissions at para. 17, were such as to be ‘ reaching a crescendo at para. 4.11 wherein the IPAT finds “this man's known and externally verified actions show that his word is not a trustworthy source”’. The tribunal also noted at para. 4.6 that no medical or psychological evidence was proffered.

3 I granted leave on 10th May, 2018, the primary relief sought being certiorari of the IPAT decision. A statement of opposition was filed on 12th October, 2018. I have received helpful submissions from Mr. Mark de Blacam S.C. (with Mr. Garry O'Halloran B.L.) for the applicant and from Mr. Anthony McBride S.C. for the respondents. Mr. de Blacam confirms that the applicant's argument is confined to ground number 3.

The applicant's pleadings

4 Ground 3 states ‘ in dismissing out of hand the Applicant's explanations of suffering mental disability in response to allegations put that his credibility was undermined by contradictions…the Tribunal acted in breach of not only the UNHCR handbook and the International Protection Act 2015 but also provisions of the Charter of Fundamental Freedoms and the European Convention on Human Rights with respect to the protection of the moral integrity of the Applicant and to treat him in a manner which is non-discriminatory in light of the Applicant's repeated disclosures with regard to his mental health’. The word ‘ disclosures’ in this ground is inapposite. A more accurate word would be assertions. What is notable is that the applicant provided no medical evidence of mental illness or disability. Furthermore, the premise of the ground is incorrect. The applicant's explanations were not dismissed ‘ out of hand’, which implies flippantly or without due consideration, or as defined in the Shorter Oxford Dictionary, 3rd ed. (Oxford, 1973), ‘ straight off, ex tempore’.

5 The applicant's explanations were simply rejected. That does not amount to dismissal out of hand, albeit that they were rejected without the sort of additional investigation that the applicant now thinks in retrospect should have been afforded having received a negative decision, but that is not dismissal out of hand. The claim of ‘ breach’ of the UNHCR handbook is not cognisable in Irish law. Likewise the ECHR is not directly cognisable as implied by ground 3 as pleaded. It only arises through the European Convention on Human Rights Act 2003, which is not referred to in ground 3. Insofar as breach of the 2015 Act and the Charter are concerned, the claim is inadequately particularised in that no specific provision is identified. The ground does not comply with O. 84 r. 20(3), so it would be inappropriate to grant relief in any event.

6 The gist of Mr. McBride's difficulty with ground 3 was that it did not specify what the tribunal should have done. He submits that the ground ‘ does not plead, as the Applicant now seeks to argue, any substantive case that the Tribunal erred in not applying herein a special procedure for mentally and emotionally disturbed applicants that is drawn from the UNHCR handbook’. The pleadings are certainly inadequate on any view. The applicant cannot succeed on the ground as drafted, but if I am wrong about that I will proceed to consider the application on the merits.

The applicant did not make this point to the tribunal

7 The second fatal obstacle to the applicant succeeding is set out at para. 22 of the respondent's written submissions - the applicant did not make any point to the tribunal about his mental incompetence. At the instance of his present solicitors, he raised ten grounds before the tribunal and none of those mentioned the UNHCR guidelines regarding mental conditions. The subject was not referred to in submissions or otherwise at the tribunal hearing by or on behalf of the applicant. It is not open to an applicant to make a point of this nature for the first time to the court not having made it to the decision-maker: see A.J.A. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 671 (Unreported, High Court, 14th November, 2018). If I am wrong about all of the foregoing, I will go on to consider the point, such as it is.

There was not and still is no evidence that the applicant has a medical condition

8 The tribunal member at para. 4.17 says that ‘ there is not a shred of evidence for such “mental weakness”’. That was a finding open to him. The applicant failed to put medical...