D.S. (Nepal) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 02 April 2019
• Neutral Citation: [2019] IEHC 212
• Court: High Court
• Docket Number: [2018 No. 795 J.R.]
• Date: 02 April 2019

[2019] IEHC 212

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 795 J.R.]

BETWEEN

D.S. (NEPAL)

APPLICANT

AND

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

AND

IRELAND

RESPONDENTS

Immigration and asylum – Subsidiary protection – Credibility – Applicant seeking subsidiary protection – Whether the respondent erred in law in rejecting the credibility of the applicant’s claim

Facts: The applicant, on 26th October, 2016, applied for subsidiary protection. On 29th December, 2017, the subsidiary protection claim was rejected by the International Protection Office and the applicant appealed to the first respondent, the International Protection Appeals Tribunal, on 17th January, 2018. The tribunal rejected the appeal on 23rd August, 2018. The applicant filed proceedings seeking certiorari of that decision on 3rd October, 2018. The High Court (Humphreys J) granted leave on 8th October, 2018 as well as a modest extension of time. Ground 1 of the statement of grounds contended that “the IPAT erred in law in rejecting the credibility of the applicant’s claim by reason of the applicant’s confession of submission of untruths when originally applying for protection in 2010”. Ground 2 of the statement of grounds contended that “the IPAT erred in law in summarily dismissing the explanations given by the applicant for inconsistencies and inaccuracies contained in the initial stages of the processing of the applicant’s protection claim”.

Held by Humphreys J that, given the scale of the difficulties with the applicant’s evidence it was well within the jurisdiction of the tribunal to decline to regard his account as credible. Humphreys J held that not accepting the explanations was the considered and lawful judgment of the tribunal having seen and heard the applicant, not an error of law.

Humphreys J noted that there was no challenge by the respondents to the extension of time granted at the ex parte stage and ordered that the proceedings be dismissed.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 2nd day of April, 2019

1 The applicant is a citizen of Nepal and claimed that he suffered serious harm there, first from Maoist militants and then from the police. He gave inconsistent dates for leaving Nepal, August, 2009 in his first version and later November, 2009. When claiming asylum here, his ASY1 form stated that he went to New Delhi, Dubai and France. Insofar as I could understand the applicant's counsel's instructions as conveyed to me, he is now saying that he was in India at some stage, but that the travel from Nepal to the UK was relatively direct and not via periods of staying in Dubai and France, which had been put forward essentially as a cover story to hide the fact that he had been in the UK. He was there on a student visa, apparently in Glasgow, and travelled from there to the State on 2nd June, 2010. He stated that ‘ he found that he was safe in the UK but his friends guided and advised him and stated that Ireland was better for human rights’. Geography imposes its own logic and perhaps the advice of these ‘ friends’ illustrates the difficulties that can arise if neighbouring immigration systems are allowed to diverge unduly. The applicant claimed asylum on 3rd June, 2010. An inquiry under art. 21 of the Dublin III regulation was made to the UK, in response to which the Irish authorities were informed that a UK visa had issued in favour of the applicant. This information led to a transfer order being signed on 6th August, 2010 and arrangements being made for the applicant's transfer to the UK on 9th August, 2010. In breach of his legal obligations, the applicant failed to present for transfer and due to this evasion he successfully frustrated the operation of the Dublin III regulation, so his claim for asylum had to be considered in Ireland. Ultimately, the present proceedings are a challenge to a protection decision which should never have been made in the State, had the processes of European and national law been allowed to function as intended and had those processes not been frustrated and interfered with by the unlawful conduct of the applicant.

2 The applicant was then invited for interview by the Refugee Applications Commissioner on 20th February, 2012. He failed to attend and accordingly his application was deemed to be withdrawn and a deportation order was made on 23rd December, 2013. Again, he failed to comply with the obligation to leave the State imposed by the deportation order.

3 The applicant's next legal move was an application for subsidiary protection, which was lodged on 26th October, 2016, a process that was approximately contemporaneous with the applicant's arrest on foot of the deportation order. He then applied for release under Article 40 of the Constitution, which I refused in D.S. v. Member in Charge of Store Street Garda Station [2016] IEHC 611 [2016] 11 JIC 0701 (Unreported, High Court, 7th November, 2016) and which the Court of Appeal also refused on appeal ( D.S. v. Member in Charge of Store Street Garda Station [2016] IECA 330 (Unreported, Court of Appeal, Birmingham P., 15th November, 2016)). One of the other detainees arrested at the same time appealed the issue to the Supreme Court, which dismissed the appeal ( P.O.I. v. Governor of Cloverhill Prison [2017] IESC 78 [2018] 1 I.L.R.M. 376) but that appeal did not involve this applicant personally. Notwithstanding the failure of the Article 40 proceedings he was released in any event, presumably because of the subsidiary protection application. Some time later, on 29th May, 2017, the deportation order was revoked in the light of that application.

4 On 29th December, 2017, the subsidiary protection claim was rejected by the International Protection Office and the applicant appealed to the International Protection Appeals Tribunal on 17th January, 2018. An oral hearing took place on 22nd May, 2018, at which Ms. Lisa McKeogh...