A. J. A. (Nigeria) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 14 November 2018
• Neutral Citation: [2018] IEHC 671
• Docket Number: [2018 No. 403 J.R.]
• Court: High Court
• Date: 14 November 2018

[2018] IEHC 671

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 403 J.R.]

BETWEEN

A.J.A.

AND

A.M.A-A. (NIGERIA)

APPLICANTS

AND

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

AND

IRELAND

RESPONDENTS

Asylum, Immigration and Nationality – Judicial Review – Certiorari– Applicant seeking order of certiorari removing the IPAT decision refusing subsidiary protection – Whether the IPAT erred in their decision to refuse subsidiary protection to the applicant

Facts: The applicants were a husband and wife from Nigeria who sought subsidiary protection in November 2016. The husband claimed that he was prosecuted in Nigeria as a strategic move to prevent him from whistleblowing. He did not present evidence of indiscriminate violence in his country of origin. The applicant’s appealed the refusal of subsidiary protection to the IPAT and their appeal was rejected. The applicant sought an order of certiorari removing the IPAT decision arguing that the tribunal erred in their credibility findings regarding the husband’s account. The applicant further argued that the tribunal did not bring its own view to the question of indiscriminate violence, but simply reviewed the decision of the IPO.

Held by Humphreys J that the assessment of the credibility and probative value of evidence is a matter for the decision maker and that the tribunal’s findings were reasonable and lawful in this regard. With respect to the argument that the tribunal did not apply its own mind to the matter, Humphreys J agreed that the language in the decision was problematic with respect to the risk of indiscriminate violence, however this submission was not made to the decision maker and so the applicant was precluded from making that point. Humphreys J held that even if such submission could be made, the applicants simply did not adduce evidence of indiscriminate violence to support a finding of individualised risk. The application was dismissed.

Relief denied.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of November, 2018

1 The applicants are a husband and wife from Nigeria, the husband having been born in 1970. In February, 2011 he was charged with forgery of two certificates by AIICO Insurance Company, where he was the manager. He claims this was a strategic prosecution to deter him from whistleblowing. Whatever about his difficulties with his employer during his 42 years living in Nigeria, there is no evidence that he was ever subjected to indiscriminate violence in his country of origin.

2 The applicants arrived in Ireland on 14th May, 2012 via the U.K. They did not claim asylum in the U.K.; nor indeed did they claim asylum in Ireland until two years later in May and June, 2014. That was refused by the Refugee Applications Commissioner. An appeal to the Refugee Appeals Tribunal was rejected, the tribunal holding that the hardship to the husband was primarily financial and not related to threatened harm.

3 The wife then sought subsidiary protection and the husband followed suit on 11th November, 2016. On 9th October, 2017 and 3rd November, 2017, the IPO notified the applicants that the applications were refused. Adverse credibility findings were made regarding the husband's account and were also relied on in the wife's application. The wife's evidence was also rejected.

4 An appeal was lodged to the International Protection Appeals Tribunal and an oral hearing took place, at which Ms. Lisa McHugh B.L. appeared for the applicants.

5 On 27th March, 2018 their appeal was rejected. Leave in the present proceedings were granted on 17th May, 2018 in which the primary relief is certiorari of the IPAT decisions. I should record that ground 5 of the statement of grounds was not pursued at the hearing. A statement of opposition was filed on 19th July, 2018.

6 I have received helpful submissions from Mr. Michael Conlon S.C. (with Mr. Garry O'Halloran B.L.) for the applicants and from Ms. Eva Humphreys B.L. for the respondents.

Criticism of credibility assessment

7 The applicants claim that the tribunal failed to ask itself whether the court case against the husband was strategic and involved serious harm to a whistle blower in accordance with the country of origin material. They make other complaints regarding the credibility assessment. It is clear that assessment of the evidence is a matter for the decision-maker: see S.A. (Ghana and South Africa) v. International Protection Appeals Tribunal [2018] IEHC 97 (Unreported, High Court, 1st February, 2018), R.A. v. Refugee Appeals Tribunal [2015] IEHC 686 [2015] 11 JIC 0403 (Unreported, High Court, 4th November, 2015), I.E. v. Minister for Justice and Equality [2016] IEHC 85 (Unreported, High Court, 15th February, 2016), K. v. Refugee Appeals Tribunal [2007] IEHC 148 (Unreported, McGovern J., 22nd May, 2007), S.B. v. Refugee Appeals Tribunal [2010] IEHC 133 (Unreported, Cooke J., 25th February, 2010), E.Y. (Pakistan) v. Refugee Appeals Tribunal [2016] IEHC 340 (Unreported, Stewart J., 17th June, 2016) and per Birmingham J. in M.A. v. Refugee Appeals Tribunal [2008] IEHC 192 (Unreported, High Court, 27th June, 2008) (para. 27): ‘ the assessment of whether a particular piece of evidence is of probative value, or the extent to which it is of probative value, is quintessentially a matter for the Tribunal Member’.

8 Mr. Conlon accepts this basic proposition, subject to a thorough review by the court. On such review, I consider that the tribunal member's findings on credibility, particularly as summarised at para. 4.9 of the decision, are perfectly reasonable and lawful and withstand...