D.U. (Nigeria) v International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 06 November 2018
• Neutral Citation: [2018] IEHC 630
• Court: High Court
• Docket Number: [2017 No. 860 J.R.]
• Date: 06 November 2018

BETWEEN

D.U. (NIGERIA)

APPLICANT

AND

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

AND

IRELAND

RESPONDENTS

[2018] IEHC 630

[2017 No. 860 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Administrative & constitutional law – Judicial review – Immigration case – Applicant seeking judicial review of Tribunal decision

Facts: The applicant had claimed asylum firstly based on his family’s ownership of a clothes shop, then secondly his bisexuality. The claim had been refused and an appeal to the IPAT had been unsuccessful. The applicant now sought a declaration of certiorari following an earlier grant of leave to seek judicial review.

Held by Humphreys J, that the application would be refused. The allegations of shortcomings in the assessment of the applicant’s credibility by the Tribunal, and the lack of clarity could not be sustained.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 6th day of November, 2018

1 The applicant was born in Nigeria in 1980. He claims to be bisexual and also claims that he had been the subject of an attempt to force him to join a cult. He arrived in Ireland on 1st October, 2016, fraudulently presenting a false Irish passport in order to do so.

2 On 18th January, 2017, in an interview under s. 13 of the International Protection Act 2015, he claimed asylum due to a cult targeting him because his father owns a clothes shop. No reference whatsoever was made to the alleged bisexuality.

3 In the interview under s. 35 of the 2015 Act on 3rd March, 2017, he referred for the first time to the bisexuality as well as cultism.

4 On 22nd May, 2017, he was informed by the International Protection Office that his application for protection was refused on the grounds that the credibility of his account was rejected. A leave to remain decision also rejected a risk under s. 50 of the 2015 Act. On 1st June, 2017, he appealed to the IPAT, which rejected the appeal in a decision of 17th October, 2017, by Ms. Una McGurk S.C.

5 On 13th November, 2017, I granted leave in the present proceedings. The statement of opposition was delivered on 26th January, 2018 and written submissions were delivered by the parties in June and July, 2018 respectively. I have received helpful submissions from Mr. Garry O'Halloran B.L., for the applicant and Ms. Grace Mulherin B.L., for the respondent.

Relief sought

6 The relief sought in the proceedings is certiorari of the decision of the tribunal. The grounds of challenge essentially fell under three headings: the credibility assessment, an alleged lack of clarity, and failure to consider future risk by reason of the applicant's sexual orientation.

Alleged shortcomings in credibility assessment

7 Grounds 1, 2, 3, 5 and 6 allege various shortcomings in the assessment of the applicant's credibility by the tribunal. In paras. 4.19 – 4.29 of the decision, the tribunal member considers various aspects of the applicant's account. This was an assessment by an independent statutory decision-maker who heard and saw the applicant. It is a sufficiently reasoned and rational decision. It is possibly not the most favourable one from the applicant's point of view, but there is no obligation on a decision-maker to be favourable. Perhaps some isolated sentences are not necessarily phrased in the best possible way, but that cannot be equated with establishing an entitlement to certiorari.

8 It is quintessentially a matter for the decision-maker as to what matters or omissions go to credibility or as to the weight to be placed on the evidence: S.A. (Ghana and South Africa) v. IPAT [2018] IEHC 97 [2018] 2 JIC 0104 (Unreported, High Court, 1st February, 2018), R.A. v....