J.M. (Malawi) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 20 November 2018
• Neutral Citation: [2018] IEHC 663
• Docket Number: [2017 No. 898 J.R.]
• Court: High Court
• Date: 20 November 2018

BETWEEN

J.M. (MALAWI)

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

[2018] IEHC 663

[2017 No. 898 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum & Immigration – Sexual orientation – Deportation – Refusal of application for international protection – Application for certiorari in respect of IPAT decision

Facts: The applicant had applied for international protection based on his sexual orientation. His claim was deemed to be lacking credibility, and the refusal of his clam was upheld on appeal to the IPAT. The applicant now applied for review seeking certiorari in respect of the IPAT decision.

Held, that the application would be allowed. The Tribunal member had fallen into error by not considering a relevant decision, and by failing to return to the matter of non-state actors in his decision. Further, the Court criticised certain obiter remarks made by the Tribunal member.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 20th day of November, 2018

1 The applicant claimed international protection on 17th October, 2016 on the grounds of fear of persecution by reason of his sexual orientation. That was refused by the International Protection Office on the basis that his account lacked credibility. He appealed to the International Protection Appeals Tribunal and on 30th August, 2017 submitted country of origin information and stated that he would have two witnesses at the oral hearing. That took place on 5th September, 2017, when Ms. Aoife McMahon B.L. appeared for the applicant. Helpfully the applicant's solicitor has briefed in these proceedings the same counsel as appeared at the tribunal. In cases where that practice is not adopted, it means that the court is not assisted by counsel who were actually present and in a position to inform the court if necessary as to what happened at the hearing.

2 On 19th October, 2017 the applicant's solicitor submitted a medical report and a previous decision of another member of the tribunal, dated 4th October, 2017, regarding a case where a claim of persecution or serious harm in Malawi was successful on grounds of sexual orientation.

3 On 26th October, 2017, the tribunal rejected the appeal in a decision by Mr. Byron Wade B.L. The applicant was found to be credible but the issue was that a well-founded fear had not been established.

Procedural history

4 The primary relief sought in the proceedings is certiorari of the decision of the tribunal of 26th October, 2017. I granted leave on 20th November, 2017 and a statement of opposition was delivered by the respondents in February, 2018. The applicant delivered written legal submissions on 19th March, 2018 and the respondent followed suit on 16th April, 2018.

5 I have received helpful submissions from Mr. Michael Conlon S.C. (with Ms. McMahon) for the applicant and from Ms. Diane Duggan B.L. for the respondents.

Failure to take into account relevant considerations

6 As far as Mr. Conlon's argument encompassed failure to take into account the previous decision of another member of the tribunal, I will deal with that separately below. He also raised a point about failure to take into account a real risk of persecution and serious harm by reason of societal attitudes. That appears to overlap with the point made about non-state actors, which I will also deal with separately.

7 His independent point under the heading of failure to take into account relevant considerations was that pertinent parts of UNHCR guidelines were not narratively referred to. Reliance was placed on behalf of the applicant before the tribunal on UNHCR Guidelines in International Protection No. 9: Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, 23rd October 2012. UNHCR guidelines are, of course, not part of the law and I have already rejected the concept that they need to be narratively discussed: see S.A. (Ghana and South Africa) v. International Protection Appeals Tribunal [2018] IEHC 97 [2018] 2 JIC 0104 (Unreported, High Court, 1st February, 2018) and the cases referred to in that decision. The decision of the tribunal member here says that evidence submitted was considered and refers to the UNHCR guidelines expressly at para. 2.14.

8 As far as the applicant's submission here is concerned, the Supreme Court decision in Y.Y. v. Minister for Justice and Equality [2017] IESC 61 [2018] 1 I.L.R.M. 109 has been read as a green light to qualify G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 [2002] 1 I.L.R.M. 401 per Hardiman J., and to demand narrative discussion of points that are of interest to the applicant. That is not a correct reading. Y.Y. was an exceptional case given the absolute nature of art. 3 of the ECHR, as applied by the European Convention on Human Rights Act 2003, and the fact that the tribunal in that case had found a risk of future harm but that the exclusion clause applied. The decision in that exceptional case does not mean that any or all points made by an applicant in any other case have to be narratively discussed.

Equality before the law

9 Complaint is made that the applicant in this case was treated less favourably than the applicant in the other tribunal decision relied on. That submission is a complete non-starter. Stare decisis does not apply to the tribunal and there is no right to absolutely equal treatment compared to another person in the context of decisions by a panel of independent decision-makers. In any event, the facts of any two given cases are different and the individual decision-maker must have a margin of appreciation, which is not exceeded here. The point does not arise in any event because significantly less harm was...