I.L. v The International Protection Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 19 June 2019 |
| Neutral Citation | [2019] IEHC 443 |
| Court | High Court |
| Docket Number | [2016 No. 880JR] |
| Date | 19 June 2019 |
[2019] IEHC 443
THE HIGH COURT
JUDICIAL REVIEW
Keane J.
[2016 No. 880JR]
AND
Judicial review – Refugee – State protection – Applicant seeking judicial review of a decision of the respondent affirming a recommendation of the Refugee Applications Commissioner that the applicant should not be declared to be a refugee – Whether the respondent erred in fact and in law in concluding that adequate state protection was available to the applicant in Nigeria
Facts: The applicant sought judicial review of a decision of the first respondent, the International Protection Appeals Tribunal (the IPAT), then known as the Refugee Appeals Tribunal, dated 1 November 2016 and made under s. 16(2)(a) of the Refugee Act 1996, affirming a recommendation of the Refugee Applications Commissioner that the applicant should not be declared to be a refugee. In her statement of grounds, the applicant enumerated three separate grounds of invalidity of the IPAT decision: first, that the tribunal erred in fact and in law in concluding that adequate state protection was available to her in Nigeria; second, that the tribunal erred in its consideration or application of the ‘compelling reasons’ test; and third, that the tribunal erred in fact and in law by rejecting the authenticity of certain purported police reports that the applicant had furnished in support of her claim.
Held by the High Court (Keane J) that it could not reconcile the argument that the tribunal erred in fact and in law in concluding from the country of origin information before it that adequate state protection was available to the applicant in Nigeria with either the law or the facts of the case. Keane J could see no basis for the ground of challenge originally advanced that the tribunal ‘failed to set out with sufficient clarity those material facts or experiences of past persecution which were accepted or rejected’ for the purpose of the application of the final clause. Nor could he see any basis for the broader ground of challenge advanced – that the tribunal’s decision on the application of the final clause was an unreasonable one in the Meadows sense. Keane J concluded that this was not in that category of special cases with particular facts that make it remiss of the State not to have conducted an inquiry of its own volition into the authenticity of those police reports.
Keane J held that the application for judicial review would be refused.
Application refused.
This is the judicial review of a decision of the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal (“the IPAT”), dated 1 November 2016 and made under s. 16(2)(a) of the Refugee Act 1996, as amended (“the Refugee Act”), affirming a recommendation of the Refugee Applications Commissioner (“the Commissioner”) that the first applicant should not be declared to be a refugee (“the IPAT decision”).
On 28 November 2016, Humphreys J gave the applicant leave to apply for various reliefs, principal among which is an order of certiorari quashing the IPAT decision.
At the time when leave was granted, the IPAT was known as the Refugee Appeals Tribunal (“the RAT”). When s. 71(5) of the International Protection Act 2015 (“the Act of 2015”) came into force on 31 December 2016, the former was substituted for the latter in these proceedings by operation of law.
It is not clear why Ireland and the Attorney General have been made respondents to the application. No relief is sought against either of those juristic persons, nor is any issue raised in which either of them has a direct interest, as a matter of law. However, nothing turns on it.
The applicant is a Nigerian woman, born in 1978, who presented herself to the immigration authorities in Dublin on 29 September 2014, claiming to have arrived at Dublin Airport from Nigeria via France on 4 September 2014.
In essence, the applicant claims to have a well-founded fear of persecution on the ground of her religion if returned to Nigeria because she has been victimised, and believes she will be killed, by a religious cult against which adequate state protection is not available.
The applicant was interviewed by an immigration officer in accordance with the requirements of s. 8 of the Refugee Act on 1 October 2014, and completed an asylum application (“ASY-1”) form on that date.
Having completed the necessary questionnaire for the Office of the Refugee Applications Commissioner (“ORAC”) on 6 October 2014, the applicant was then interviewed by an authorised officer of the Commissioner, pursuant to s. 11 of the Refugee Act, on 29 November 2014.
The recommendation of the Commissioner, dated 3 March 2015, based on a report, dated 2 March 2015, was that the applicant should not be declared to be a refugee because she had not established a well-founded fear of persecution; or that adequate state protection would not be available to her in Nigeria in respect of the persecution she claims; or that internal relocation within Nigeria would not be a reasonable option available to her in that regard.
Through her legal representatives, the applicant submitted a notice of appeal, dated 9 April 2015, against the recommendation of the Commissioner. It was followed by written submission, dated 7 July 2016. Through different legal representatives, the applicant delivered further written submissions, dated 19 September 2016, under cover of a letter of the same date, together with certain country of origin information (“COI”).
An oral hearing of the applicant's appeal took place before the tribunal on 22 September 2016.
The IPAT decision is dated 1 November 2016 and was furnished to the applicant under cover of a letter, dated 3 November 2016. It concluded that the applicant had established a well-founded fear of persecution by non-state actors but had failed to establish the absence of adequate state protection in Nigeria against such persecution. Further, the IPAT decision found that, in addition to the conclusion that such persecution would not be repeated, there were no compelling reasons arising out of the previous persecution of the applicant that would warrant a finding in favour of her recognition as a refugee.
The applicant sought, and was granted, leave to bring these proceedings on 28 November 2016, based on an undated statement of grounds, supported by an affidavit of the applicant's solicitor, sworn on 16 November 2016, and a verifying affidavit of the applicant, sworn on the same date. The Minister filed a statement of opposition, joining issue with the applicant on each of the grounds raised, on 23 March 2017. It is grounded on an affidavit of John Moore, a higher executive officer with the IPAT, sworn on the same day. Matthew Kennedy, another officer with the IPAT, swore a supplemental affidavit on 31 October 2017, exhibiting certain COI that had been before the tribunal and to which reference was made in its decision.
In her statement of grounds, the applicant enumerates three separate grounds of invalidity of the IPAT decision: first, that the tribunal erred in fact and in law in concluding that adequate state protection was available to her in Nigeria; second, that the tribunal erred in its consideration or application of the “compelling reasons” test; and third, that the tribunal erred in fact and in law by rejecting the authenticity of certain purported police reports that the applicant had furnished in support of her claim.
i. adequate state protection
The applicant argues that the tribunal erred in fact and in law in concluding from the COI before it that adequate state protection was available to her in Nigeria.
I cannot reconcile that argument with either the law or the facts of this case.
At the material time, an application for refugee status was dealt with under the Refugee Act and the European Communities (Eligibility for Protection) Regulations 2006, as amended (“the 2006 Regulations”). The 2006 Regulations transposed Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless person as refugees or persons who otherwise need international protection and the content of the protection granted (“the Qualification Directive”).
Article 7 of the Qualification Directive provides, in material part:
“1. Protection can be provided by:
(a) the State; or
(b) parties or organisations, including international organisations, controlling the State or a substantial part of the territory of the State.
2. Protection is generally provided when the actors mentioned in paragraph 1 take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.”
That provision was transposed under Reg. 2(1) of the 2006 Regulations, which states:
“‘protection against persecution or serious harm’ shall be regarded as being generally provided where reasonable steps are being taken by a state or parties or organisations, including international organisations, controlling a state or a substantial portion of the territory of that state to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, where the applicant has access to such protection.”
There are innumerable authorities for the principle that Birmingham J described in the following...
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M.H. v International Protection Appeals Tribunal and Another
...Secretary [2002] UKIAT 00439, as approved in this jurisdiction by the High Court in I.L. v. International Protection Appeals Tribunal [2019] IEHC 443 and O.A. (Nigeria) v. International Protection Appeals Tribunal [2020] IEHC 100.” 18 . At paragraph 4.3.5 – 4.3.6 the Tribunal refers further......