H. Z. (Iran) v The International Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 17 February 2020 |
| Neutral Citation | [2020] IEHC 146 |
| Docket Number | [2019 No. 673 J.R.] |
| Court | High Court |
| Date | 17 February 2020 |
[2020] IEHC 146
Richard Humphreys J.
[2019 No. 673 J.R.]
THE HIGH COURT
Judicial review – Asylum – Irrationality – Applicant seeking asylum – Whether the respondent made an unreasonable or irrational conclusion
Facts: The applicant obtained refugee status in Greece. He was not happy living there so he immediately left, first to live for a while in France and then coming to the State where he claimed asylum. In that claim he falsely asserted that he had not been granted asylum elsewhere. This fraud was discovered by the Irish authorities through enquiries under the Eurodac system. The applicant could not be returned to Greece because the Greeks declined to accept him, his application having already been finalised. His application for asylum was then declared inadmissible under s. 21 of the International Protection Act 2015. The applicant appealed to the first respondent, the International Protection Appeals Tribunal, with the same result. He brought judicial review challenging that refusal. The applicant identified seven questions arising in the proceedings: (1) “did the first respondent make an unreasonable or irrational conclusion in finding that ‘the appellant falls short of establishing that the fundamental rights he enjoys in international law particularly those protected by EU law and by the European Convention on Human Rights would be infringed if he was to be returned to Greece’”? (2) “did the first respondent fail to give adequate reasons as to why the relevant tests were not met by reference to the evidence set out in the accepted country of origin information”? (3) “did the first respondent err in not applying the test set out in Tarakhel v Switzerland Application No. 29217/12 which refers to the necessity for member states proposing transfer to carry out a thorough examination of the situation of the person facing transfer and the possibility that they “may be left without accommodation or accommodated in overcrowded facilities without any privacy or even insalubrious or violent conditions””? (4) “Did the first respondent err in law in applying the wrong test or act unreasonably in holding against the applicant that ‘he had not provided any evidence of his own situation in Greece while he was living there or of the opportunity to obtain accommodation, employment or welfare supports’”? (5) “did the first respondent breach fair procedures being rejecting the credibility of the applicant’s claims that he had sought and failed to obtain accommodation and welfare supports in Greece without permitting the applicant an opportunity to provide oral evidence on the question as requested by him”? (6) “did the first respondent err in failing to make or to direct further inquiries of the Greek authorities and/or seek an assurance from that state in respect of the conditions the applicant would face if returned to Greece prior to making the impugned decision”? The seventh question, that of prematurity, which had been pleaded on behalf of the respondents, did not arise because the respondents were not standing over any complaint of prematurity.
Held by Humphreys J that: (1) irrationality had not been shown, the decision was a purely factual assessment of the material before the tribunal and was well within what was open to the tribunal in such circumstances; (2) the reason given was relatively terse, but, nonetheless, it was clear the applicant fell short of establishing that his fundamental human rights would be infringed; (3) the applicant was not facing transfer in the impugned decision; (4) the assessment of the evidence is quintessentially a matter for the decision-maker and no error of law had been demonstrated; (5) Section 21(7)(a) provides that “the Tribunal shall make its decision without an oral hearing”; and (6) it is inherent in the system of mutual confidence between members of the EU that member states do not seek assurances from each other or make enquiries regarding conditions, unless a significant threshold is first overcome and had the applicant demonstrated a prima facie case that art. 4 rights would be breached, the question of undertakings or information might have arisen, but he did not do so.
Humphreys J held that the application would be dismissed.
Application dismissed.
The applicant obtained refugee status in Greece. He was not happy living there so he immediately left, first to live for a while in France and then coming to the State where he claimed asylum. In that claim he falsely asserted that he had not been granted asylum elsewhere. This fraud was discovered by the Irish authorities through enquiries under the Eurodac system. The applicant could not be returned to Greece because the Greeks declined to accept him, his application having already been finalised. His application for asylum here was then declared inadmissible under s. 21 of the International Protection Act 2015. The applicant appealed to the International Protection Appeals Tribunal, with the same result. He now brings the present judicial review challenging that refusal. The Minister has made a proposal to deport the applicant which remains outstanding.
The applicant was born in Iran in 1999. He left that country on a date which he originally stated was 31st August, 2016 although he is now saying it was late August, 2017. He claims to have travelled by car to Turkey, stayed there for six days and then to have gone by road to Greece. He was fingerprinted in Greece on 23rd November, 2017 when he applied for asylum there. The date of fingerprinting is not consistent with the timelines given by the applicant, as pointed out later by the tribunal in correspondence dated 26th July, 2019. When this was put to the applicant in the Dublin III interview, he said that he had been in Greece for a week to ten days before being fingerprinted. That suggested a fifteen-month period unaccounted for, a gap which the applicant now seeks to bridge by saying that he left Iran in 2017 rather than 2016.
He claims that he was in Greece for a six-month period and was detained for four months because of his illegal entry. He obtained refugee status in Greece on 31st January, 2018. As soon as he got that status he left, travelling by air to France where he stayed for three or four months and then coming by air to the State on 16th January, 2019. On the date of his arrival, he applied for international protection here, falsely stating in his protection application that he had not been granted refugee status in any other country.
He was interviewed under the Dublin III regulation on 5th February, 2019. On 1st March, 2019 Greece refused to take the applicant back under Dublin III because he had already been granted asylum. The International Protection Office deemed his application inadmissible on 20th May, 2019. He appealed that decision to the IPAT by notice of appeal dated 4th June, 2019. On 11th July, 2019 the IPAT wrote to the applicant's solicitor saying that the application would be adjourned pending other legal developments, but on 17th July, 2019 the tribunal changed its mind and said that the letter of 11th July, 2019 was issued in error and that a decision on the appeal would be made in due course.
On 26th July, 2019 the tribunal member wrote to the applicant's solicitor seeking clarification regarding the application and in particular regarding the applicant's experiences in Greece. A psychiatric report dated 16th August, 2019 was furnished on 20th August, 2019 and a further reply was furnished on 22nd August, 2019.
The IPAT decision was issued on 4th September, 2019 affirming the recommendation of the IPO that the application be deemed inadmissible. On 10th September, 2019 the Minister issued a proposal to deport the applicant, and submissions were made in response on 26th September, 2019. The present proceedings were filed on the same day, the primary relief sought being certiorari of the IPAT decision of 4th September, 2019.
On 7th October, 2019 further submissions were made against deportation, recycling the points made before the tribunal (and indeed in these proceedings) about why the applicant should not be sent to Greece. I granted leave on 21st October, 2019 and have now received helpful submissions from Mr. Michael Conlon S.C. (with Mr. James Buckley B.L.) for the applicant and from Mr. Robert Barron S.C. and Mr. Tim O'Connor B.L., who also addressed the court, for the respondents.
The impugned decision was made under s. 21(9)(a) of the International Protection Act 2015 which provides that: “(9) In relation to an appeal under subsection (6), the Tribunal may decide to– (a) affirm the recommendation of the international protection officer …” Section 5 of the Illegal Immigrants (Trafficking) Act 2000 has been amended by s. 79(a)(ii) of the 2015 Act by the insertion in sub-s.(1) of a new para. (ob) which adds “a decision of the International Protection Appeals Tribunal under section 21(9)(a) of the International Protection Act 2015” to the list of decisions to which s. 5 applies. Accordingly, the applicant's submissions are correct to concede, at para. 4, that s. 5 of the 2000 Act applies to the present proceedings.
Section 21(2) of the 2015 Act provides that: “An application for international protection is inadmissible where one or more than one of the following circumstances applies in relation to the person who is the subject of the application: (a) another Member State has granted refugee status...
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