A.A.L.(Nigeria) v The International Protection Appeals Tribunal No.2
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 25 February 2019 |
| Neutral Citation | [2019] IEHC 123 |
| Docket Number | [2018 No. 371 J.R.] |
| Court | High Court |
| Date | 25 February 2019 |
AND
(No. 2)
[2019] IEHC 123
[2018 No. 371 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Subsidiary protection – Credibility – Judicial review – Refusal – Application for Leave to appeal
Facts: The applicant had been refused international protection by the IPAT and had applied for review of that refusal. In an earlier hearing ([2018] IEHC 792), the High Court had refused that application, and the applicant now sought leave to appeal.
Held by Humphreys J that the application for leave would be dismissed. The suggestion that the applicant should have leave to appeal on the grounds of medical evidence where this was not raised earlier was without merit.
In A.A.L. (Nigeria) v. International Protection Appeals Tribunal (No. 1) [2018] IEHC 792 (Unreported, High Court, 21st December, 2018) I rejected a challenge to a decision of the tribunal refusing international protection to the applicant. The applicant now seeks leave to appeal and I have had regard to the law in relation to that issue, including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006), Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was), I.R. v. Minister for Justice and Equality [2009] IEHC 510 [2015] 4 I.R. 144 per Cooke J., Raiu v. Refugee Appeals Tribunal [2003] 2 JIC 2603 (Unreported, High Court, 26th February, 2003) per Finlay Geoghegan J., Gritto v. Minister for Justice Equality and Law Reform [2005] IEHC 75 (Unreported, High Court, 16th March, 2005) per Laffoy J., and M.A.U. v Minister for Justice, Equality and Law Reform (No. 3) [2011] IEHC 59 (Unreported, High Court, 22nd February, 2011) per Hogan J. I have also discussed these criteria in a number of cases, including S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016) (para. 2), and Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017) (para. 72). 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.
The applicant's proposed first question of exceptional public importance is ‘ whether in compliance with Article 4 of the Qualification Directive the Tribunal is required to investigate an applicant's repeated assertions of mental illness in circumstances where it would be reasonable to carry out an investigation’.
Mr. McBride responds to this point by stating in written submissions at para. 5 that ‘ the essential difficulty was that the applicant attempted to use this solitary plea as a wedge to make a whole new argument for which leave had not been given’. At para. 6 of the written submissions he makes the point that the ratio of the No. 1 judgment is ‘ that the pleadings were simply inadequate for the case sought to be made and the Applicant must fail in his application for judicial review on that account.’
The problem for the applicant under this heading is that there were four grounds for the decision. Firstly, that the point was inadequately pleaded. Secondly, that he did not make the point to the tribunal, thirdly, there was no evidence of actual mental illness and fourthly, that the point was unmeritorious.
On the pleading issue, Mr. de Blacam says I should have allowed an amendment in accordance with B.W. v. Refugee Appeals Tribunal [2017] IECA 296 [2018] 2 I.L.R.M. 56, but on the other hand he did not apply for an amendment, so the question of allowing one did not arise.
On the question of making the point to the tribunal, it was submitted that it would rewrite the law of judicial review to say that a jurisdictional point needs to be made to the decision-maker. First of all, this is not a jurisdictional point. The statement of grounds pleads breach of the UNHCR Handbook, which is not justiciable, breach of the International Protection Act 2015 (provision unspecified), breach of the Charter of Fundamental Freedoms (provision unspecified) and breach of the ECHR which is not directly justiciable but only by virtue of the European Convention on Human Rights Act 2003, which is not referred to in the statement of grounds. The complaint actually made in the ground as pleaded appeared in substance to be a complaint regarding the reasonableness of the tribunal having failed to apply a specific procedure to the applicant to assess his mental competence. That is not a jurisdictional point. But even if it was, I did not say that all jurisdictional points need to be made to the decision-maker in every judicial review in every field. What I said was that if the applicant wants to make a case of lack of mental capacity then he should make that to the decision-maker, and this applicant did not do so. That is triply problematic here as not only was the applicant legally represented at all times, but also under the third heading of the decision, he still has not provided medical evidence of mental illness or disability even in the context of the judicial review.
As Mr. McBride eloquently puts it at para. 9 of his written submissions, ‘ It is only fourthly and finally, in the event that the Court should have been wrong about all the foregoing, that it went on to...
To continue reading
Request your trial