K.M. (Pakistan) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 10 July 2018
• Neutral Citation: [2018] IEHC 510
• Docket Number: [2017 No. 217 J.R.]
• Court: High Court
• Date: 10 July 2018

[2018] IEHC 510

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 217 J.R.]

BETWEEN

K.M. (PAKISTAN)

APPLICANT

AND

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

AND

IRELAND

RESPONDENTS

Immigration and asylum – Certiorari – Subsidiary protection – Applicant seeking certiorari of the decision of the respondent – Whether the respondent failed to afford weight to documents and country material

Facts: The applicant left Pakistan and applied for asylum in the State on 27th March, 2012. The application was rejected. He appealed that decision and was again unsuccessful in a decision of June, 2013. On 4th September, 2013 he applied for subsidiary protection. The application was refused on 4th December, 2015. He then appealed to the Refugee Appeals Tribunal on 16th December, 2015. On 24th January, 2017 the tribunal rejected the appeal. Leave to apply to the High Court was granted by MacEochaidh J on 13th March, 2017. The primary relief sought was certiorari of the decision of the first respondent, the International Protection Appeals Tribunal (IPAT), affirming the refusal of subsidiary protection. The applicant submitted that the IPAT: 1) failed to ask whether the applicant was who he said he was; 2) failed to afford weight to documents and country material; 3) erred in rejecting the applicant's explanation as the reason for inconsistencies; 4) failed to consider future risk of serious harm; and 5) erroneously took on the role of review of the reasonableness of the Refugee Applications Commissioner's decision rather than arriving at a de novo decision based on its own assessment.

Held by Humphreys J that, by contending and finding that the documents did not materially assist the applicant, the tribunal erred in law, in terms of irrationality, on the very specific facts of this case. Humphreys J held that, on the facts of this case, the applicant's medical evidence called for a more explicit articulation or rationale as to why his explanation did not account for his difficulties in giving evidence, and particularly inconsistencies in that evidence; the phrase in the decision was too opaque to provide adequate guidance as to the tribunal's reasoning, even in the most general terms. Humphreys J held that the appropriate test in this case was for the tribunal to form its own view of whether any forward looking risk remained by reason of factors independent of an applicant's credibility, if any, notwithstanding the rejection of such credibility. Humphreys J held that the IPAT has the opportunity to review the evidence itself; it is not engaged in a judicial review-type exercise in relation to the Refugee Applications Commissioner. Humphreys J held that this particular decision was anomalous and out of line with the normal tribunal decision format, but more fundamentally failed to adopt the correct legal approach.

Humphreys J held that there would be: (i) an order of certiorari removing the tribunal decision for the purposes of being quashed; and (ii) an order remitting the applicant's appeal back to the tribunal to be heard by a different tribunal member.

Application granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 10th day of July, 2018

1 The applicant claims that he worked as a journalist in Pakistan. He says that in 2011, he wrote an article suggesting that a local madrassa was associated with al-Qaeda and a related group. He says he was shot at on 1st and 2nd December, 2011 and on the latter occasion fell from his motorbike and became unconscious. He was treated in hospital and fled to a different town. He moved again and was shot at once more in February, 2012.

2 He then left Pakistan and applied for asylum in the State on 27th March, 2012. This application was rejected. He appealed that decision and was again unsuccessful in a decision of June, 2013.

3 On 4th September, 2013 he applied for subsidiary protection. He was interviewed on 10th June, 2015 by the Refugee Applications Commissioner. A medical report was submitted, dated 10th June, 2015, as well as a SPIRASI report dated 21st July, 2015. The application was refused on 4th December, 2015.

4 He then appealed to the Refugee Appeals Tribunal on 16th December, 2015. An appeal hearing took place on 15th August, 2016. Ms. Lisa McKeogh B.L. appeared for the applicant.

5 Newspapers which confirm that the applicant worked as a journalist were submitted. On 19th August, 2016, the tribunal sent a somewhat sceptical letter to the applicant questioning why the same photograph was used in newspapers some years apart. I pause to comment that it is hard to see why there is anything inherently suspicious about that, so the tribunal's interest in that particular point is somewhat surprising. The tribunal also sought a copy of the envelope in which the newspapers were sent and requiring a further affidavit and copies of further newspapers. On 16th January, 2017 the tribunal sent to the applicant's solicitors translations of newspaper reports that it had obtained.

6 On 24th January, 2017 the tribunal rejected the appeal. The applicant was so notified by letter dated 6th February, 2017. Leave for the present proceedings was granted by MacEochaidh J. on 13th March, 2017. He also made an order extending time for the application and the respondents are sensibly not seeking to set that aside at the substantive stage.

7 The statement of opposition was filed on 15th November, 2017. The proceedings got a hearing date in March, 2018 but were adjourned because the applicant sought an amendment, which I granted, applying the Court of Appeal decision in B.W. v. Refugee Appeals Tribunal [2017] IECA 296 [2018] 2 I.L.R.M. 56.

8 I have received helpful submissions from Mr. Garry O'Halloran B.L. (with Mr. Mark de Blacam S.C.) for the applicant and from Mr. Alexander Caffrey B.L. for the respondents.

Relief sought

9 The primary relief sought is certiorari of the decision of the International Protection Appeals Tribunal affirming the refusal of subsidiary protection.

Ground 1 - IPAT failed to ask whether the applicant was who he said he was

10 This is another version of the argument that the tribunal must decide on the ' core claim'. It is not necessary to do so as long as a general rejection of an applicant's credibility is arrived at lawfully. Reliance was placed on Voga v. Refugee Appeals Tribunal (Unreported, Ryan J., 6th October, 2010) where there was no finding that an applicant was who she said she was, but that was a case where her credibility was not specifically rejected generally. If there is such a finding, as there is in the present case, it is less crucial that there be an express finding on whether the applicant is who he or she says they are. This is not a basis for quashing the decision, assuming the credibility findings were lawful, which I will deal with under subsequent grounds.

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