AH, SH, RH (A Minor Suing by His Mother and Next Friend SH) and RH (A Minor Suing by His Mother and Next Friend SH) v International Protection Appeals Tribunal and The Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Cian Ferriter |
| Judgment Date | 16 February 2022 |
| Neutral Citation | [2022] IEHC 84 |
| Docket Number | [2020 No. 567 JR] |
| Year | 2022 |
| Court | High Court |
[2022] IEHC 84
[2020 No. 567 JR]
THE HIGH COURT
JUDICIAL REVIEW
Judgment of Mr. Justice Cian Ferriter delivered on the 16th day of February 2022
In these judicial review proceedings, the applicants seek an order of certiorari quashing the decision of the first respondent (“IPAT”) of 29th June, 2020 recommending that the applicants should not be granted either refugee status or subsidiary protection (the “Decision”). The essential grounds of challenge to the Decision relate to the manner in which IPAT assessed the credibility of the applicants as recorded in the terms of the Decision.
The respondents raised a preliminary objection to the effect that the applicants' arguments in the written submissions for the substantive hearing in this case went well beyond the issues on which leave was granted.
Paragraph 4 of the legal grounds section of the statement of grounds pleaded as follows:
“Having found the first and second applicants to be consistent in their claims, and having found that their accounts accorded with the COI before it, the first respondent erred in fact and in law and acted unreasonably and/or irrationally and breached the principles of fair procedures and natural and constitutional justice by applying an erroneously high standard of proof to its assessment of whether the applicants face a reasonable chance of persecution, or whether they would face a real risk of serious harm, should they be returned to Pakistan.”
The respondents submitted that the applicants' written submissions impermissibly sought to address issues relating to the application of the benefit of doubt by the Tribunal and arguments relating to how the Tribunal addressed the issue of corroboration, matters not covered by the above plea.
The factual grounds section of the statement of grounds identified, in some detail, specific paragraphs of the Decision relied upon by the applicants to ground their case, which included paragraphs in which the Tribunal identified the absence of corroboration of the applicants' claims, and paragraphs taken from the section of the Decision headed “ Benefit of Doubt”. The applicants made the point that it was clear from the statement of grounds that the applicants were challenging the manner in which the Tribunal addressed the question of their credibility and that the arguments contained in the written submissions for the substantive hearing were entirely consistent with the leave granted to them, the issues of corroboration and benefit of doubt being intrinsically tied up with the question of the correct standard of proof.
The applicants' written submissions in respect of the substantive hearing were delivered on 22nd January 2021. The respondents were able to deal with all of the arguments in those submissions and did so very ably in replying written submissions dated 19th March, 2021.
The respondents were not in a position to submit that there was particular affidavit evidence, or particular lines of pleading in their statement of opposition, that they were deprived of the opportunity of submitting in light of the contents of the applicants' substantive written submissions. That is unsurprising in circumstances where the applicants' case alleges legal error in the manner in which the Tribunal arrived at its decision and relies solely on the contents of the Decision in making those arguments.
I accept, of course, the importance of pleadings in judicial review proceedings defining precisely the issues between the parties and have taken into account the dicta in the authorities relied upon by the respondents in support of their preliminary objection, including those of O'Donnell J. (as he then was) in Keegan v. Garda Síochána Ombudsman Commission [2015] IESC 68, at paras. 42 and 43; the dicta of Murray C.J. in A.P. v. DPP [2011] 1 IR 729, at paras. 4, 5 and 10; and the analysis of Keane J. in Qureshi v. The Minister for Justice and Equality [2019] IEHC 446, at paras. 23 and 24.
However, in my view, on the facts of this case, the applicants did not stray materially beyond the grounds which they were granted leave to pursue. It was clear from the statement of grounds, and the legal submissions filed in support of the leave application, that the applicants were taking issue with the unlawful manner, as they saw it, in which the Tribunal had approached the question of assessing the credibility of their claims. In my view the applicants' case, while elaborated upon in written and oral submissions at the substantive hearing, did not seek to materially depart from the pleaded case. The pleaded allegation of the Tribunal applying an erroneously high standard of proof inexorably led to arguments as to the correct approach to assessing matters of credibility which necessarily embraced questions relating to the benefit of the doubt and the question of “corroboration” as that term was used by the Tribunal in the various paragraphs from the Decision identified in the statement of grounds.
In the circumstances, in my view, the preliminary objection is not well-founded and I propose, therefore, to proceed to address the substantive arguments advanced by the applicants in support of their claim for relief.
The parties were not in dispute as to the legal principles applicable to the question of the assessment by IPAT of the credibility of the claims of an applicant underpinning an application for international protection.
The relevant principles were comprehensively and authoritatively reviewed by Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 353. I do not propose to set out all of the ten matters identified by Cooke J. in his synthesis of the relevant principles, but will reference a number of those matters when analysing the parties' submissions later in this judgment.
It is accepted that the onus of proof rests with the applicant albeit that a shared burden may in some circumstances come into play, as noted by the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status at paragraph 196:
“196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.”
It also accepted that the correct standard of proof to be applied in assessing the applicants' credibility is “ the balance of probabilities coupled, in appropriate circumstances, with the benefit of doubt. The appropriate circumstances to attract the benefit of the doubt would be where the overall credibility of the applicants is accepted.” (per O'Regan J. in O.N. v. Refugee Appeals Tribunal & ors [2017] IEHC 13, as reiterated by her in M.G. v. Refugee Appeals Tribunal & ors [2017] IEHC 94, at para. 6)
This reflects the UNHCR handbook approach as per paragraphs 203 and 204:
“203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore frequently necessary to give the applicant the benefit of the doubt.
204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.”
The approach to the benefit of the doubt in relation to aspects of applicants' statements not supported by documentary or other evidence is reflected now in s. 28(7) of the International Protection Act, 2015 (“s. 28(7)”). s. 28(7) provides as follows:-
7) Where aspects of the applicant's statements are not supported by documentary or other evidence, those aspects shall not need confirmation where the international protection officer or, as the case may be, the Tribunal, is satisfied that—
(a) the applicant has made a genuine effort to substantiate his or her application,
(b) all relevant elements at the applicant's disposal have been submitted and a satisfactory explanation regarding any lack of other relevant elements has been given,
(c) the applicant's statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant's case,
(d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done...
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