B.B.A. (India) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 14 December 2018
• Neutral Citation: [2018] IEHC 741
• Docket Number: [2018 No. 251 J.R.]
• Court: High Court
• Date: 14 December 2018

[2018] IEHC 741

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 251 J.R.]

BETWEEN

B.B.A. (INDIA)

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration and Nationality – Judicial Review – Certiorari– Applicant seeking order of certiorari removing the IPAT decision refusing subsidiary protection – Whether the IPAT erred in their decision to refuse subsidiary protection to the applicant

Facts: The applicant originated from Indian Kashmir. He was sent to the U.K. in 1998 and age ten and returned to India in 2007. He returned to the U.K. on a student visa in 2012 and came to Ireland in 2014 and applied for asylum which was refused. He then sought subsidiary protection which was refused. His appeal to the International Protection Appeals Tribunal was refused and leave was granted for judicial review. The applicant argued, inter alia, that the IPAT’s conclusion that he could relocate to a large city in India was unlawful and that the burden was on the State to show that an internal protection alternative was available. The applicant sought an order of certiorari removing the IPAT decision.

Held by Humphreys J that the tribunal’s decision that the applicant could relocate to a large city in India was reasonable and lawful. Noting the applicant had previously lived in Delhi and Bangalore and had been to Calcutta, the tribunal had regard to the applicant’s personal circumstances and attributes as well as the general circumstances of the parts of the country concerned, as required by Regulations 7 (1) and (2) of the European Communities (Eligibility for Protection) Regulations 2006. The applicant’s argument that the burden was on the State to show an internal protection alternative was available was rejected. Humphreys J first noted that this point had not been argued before the tribunal and was therefore not an appropriate submission, but went on to find that a shared burden between the applicant and the State was well established.

Relief denied.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of December, 2018

1 The applicant originates from Indian Kashmir, and was born in 1988. He was sent to the U.K. in 1998 aged ten and returned to India in 2007. He then applied for a visa on 18th July, 2012 to study in the U.K. and returned there in August, 2012. He did not apply for international protection in that country.

2 He appears to have travelled to Ireland on or about September, 2014, and applied for asylum approximately two months afterwards. That was refused by the Refugee Applications Commissioner. He then sought subsidiary protection, which was refused by the International Protection Office. Those decisions were appealed to the International Protection Appeals Tribunal, which rejected the appeals on 27th February, 2018.

3 The present proceedings were filed on 29th March, 2018, the primary relief sought being certiorari of the IPAT decision. I granted leave on 23rd April, 2018. I have received helpful submissions from Mr. Paul O'Shea B.L. for the applicant and Mr. Alexander Caffrey B.L. for the respondents.

Affidavit delivered without leave

4 On 5th September, 2018, the applicant's solicitor swore an affidavit in which it was proposed to exhibit certain documents which were not put before the tribunal, but which the applicant claims would have made a difference if the tribunal had properly considered all up to date country information. Only one of those items could reasonably have been something that the tribunal could have been even conceivably obliged to consider, namely the Human Rights Watch Annual Report, 2017. It is not remotely workable for the tribunal and each of its members to maintain a round-the-clock watch on the internet for newspaper articles about each and every country, or for such occasional statements, reports or press releases as might be issued from time to time by NGOs such as Amnesty International. The Human Rights Watch Annual Report, by contrast, is properly mainstream country information of the type to which one could argue that the...