M.E.O. (Nigeria) v The International Protection Appeals Tribunal ; U.O. (Nigeria) v The International Protection Appeals Tribunal
Jurisdiction | Ireland |
Judge | Mr. Justice Richard Humphreys |
Judgment Date | 07 December 2018 |
Neutral Citation | [2018] IEHC 782 |
Date | 07 December 2018 |
Court | High Court |
Docket Number | [2018 No. 296 J.R.] |
AND
AND
[2018] IEHC 782
Humphreys J.
[2018 No. 296 J.R.]
[2018 No. 364 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Immigration and asylum – Subsidiary protection – Standard of proof – Applicants seeking certiorari of the respondent’s decisions – Whether international protection applications were being decided on an incorrect standard of proof
Facts: The applicant in the first proceedings was born in Nigeria in 1984. He claimed persecution or serious harm because of his sexual orientation. He arrived in Ireland on 30th August, 2015 on his own passport and applied for asylum on 1st September, 2015. That was rejected by the Refugee Applications Commissioner on 29th November, 2016. On 3rd March, 2017 he applied for subsidiary protection. That was rejected on 29th August, 2017. He appealed to the first respondent in both proceedings, the International Protection Appeals Tribunal (IPAT), on 28th September, 2017. That appeal was rejected on 14th March, 2018. Leave in these proceedings, seeking certiorari of the IPAT decision was granted on 16th April, 2018. The applicant in the second proceedings was born in 1982 and claimed persecution or serious harm by reason of his sexual orientation. He arrived in Ireland in June, 2014 on false papers and was arrested and detained for a time. He applied for asylum on 13th June, 2014. That was refused by the Refugee Applications Commissioner on 19th January, 2015. He appealed to the Refugee Appeals Tribunal on 3rd February, 2015. He then sought subsidiary protection, which was rejected by the IPO on 15th June, 2017. He appealed that refusal to the IPAT on 13th August, 2017. His appeals were rejected on 3rd April, 2018. Leave in these proceedings, seeking certiorari of the IPAT decision, was granted on 3rd May, 2018. The applicants claimed that international protection applications were being decided on an incorrect standard of proof. They submitted that the correct standard should be a reasonable degree of likelihood or a reasonable chance.
Held by the High Court (Humphreys J) that a reasonable degree of likelihood test would not have benefited the applicants on the facts, the point raised was not adequately or properly pleaded and there was no legal basis for the test contended for.
Humphreys J held that both applications would be dismissed.
Applications dismissed.
Last year, after a three-day hearing, O'Regan J. rejected a claim that international protection applications were being decided on an incorrect standard of proof (O.N. v. Refugee Appeals Tribunal [2017] IEHC 13 (Unreported, High Court, 17th January, 2017). Not much more than twelve months later, an attempt is made to re-run the same point yet again, but with next to nothing new being advanced on behalf of the applicants. To use the phrase of Scalia J. commencing his opinion in Glossip v. Gross 576 US__(2015) at slip op. p. 1, ‘ Welcome to Groundhog Day’.
The applicant was born in Nigeria in 1984. He claims persecution or serious harm because of his sexual orientation. He arrived in Ireland on 30th August, 2015 on his own passport and applied for asylum on 1st September, 2015. That was rejected by the Refugee Applications Commissioner on 29th November, 2016. On 3rd March, 2017 he applied for subsidiary protection. That was rejected on 29th August, 2017. He appealed to the IPAT on 28th September, 2017. That appeal was rejected on 14th March, 2018. Leave in the present proceedings, seeking certiorari of the IPAT decision, was granted on 16th April, 2018.
The applicant was born in 1982 and claims persecution or serious harm by reason of his sexual orientation. He arrived in Ireland in June, 2014 on false papers and was arrested and detained for a time. He applied for asylum on 13th June, 2014. That was refused by the Refugee Applications Commissioner on 19th January, 2015. He appealed to the Refugee Appeals Tribunal on 3rd February, 2015. He then sought subsidiary protection, which was rejected by the IPO on 15th June, 2017. He appealed that refusal to the IPAT on 13th August, 2017. His appeals were rejected on 3rd April, 2018. Leave in the present proceedings, seeking certiorari of the IPAT decision, was granted on 3rd May, 2018.
I have received helpful submissions from Mr. Paul O'Shea B.L. for the applicants in both cases and from Mr. David Conlan Smyth S.C. (with Ms. Elizabeth Cogan B.L.) in U.O. and (with Mr. Alex Finn B.L.) in M.E.O. for the respondents.
The applicants submit that the correct standard should be a reasonable degree of likelihood or a reasonable chance, but the applicants” submissions overall massively exaggerate the difference between the standard argued for by the applicants and that actually applied by the IPAT.
As far as the forward-looking test is concerned, the tribunal does apply the test of a reasonable chance of persecution or sufficient reasons for believing that the person concerned would face a real risk of serious harm (see para. 27 of the affidavit of Hilkka Becker). Mr. O'Shea concedes that the applicants have to be content with that approach, apart from the extent to which that may be influenced by the approach to past persecution. But as far as past or present facts are concerned, it is clear from the tribunal's methodology that not all facts have to be accepted on the balance of probability test, and facts which have ‘ a reasonable chance of being true’ (see exhibit HB4) can be accepted if the benefit of the doubt is extended to them.
The tribunal decision in U.O. at para. 4.31 referred to ‘ inconsistencies, negative credibility findings and implausibility surrounding substantial parts of the appellant's evidence’. Benefit of the doubt was not extended. One precondition of the benefit of the doubt is that the applicant's general credibility has been established, which is not the case here. A similar problem arises in M.E.O. at para. 4.24 of the decision, ‘ the appellant did not appear to be able to give an internally consistent or coherent account and has never done so’. In para. 4.25, the tribunal member went on to consider the sexual orientation issue notwithstanding the overall finding and made favourable references to the possibility of exaggeration, and that she had considered the issue with care. Thus she did not stop at the application of the balance of probability test but went on to say on this issue that ‘ his account…was lacking in detail. Core facts relating to his sexuality were inconsistent, majorly so’. These are manifestly not applicants that cleared the reasonable degree of likelihood test but fell just short of the balance of probabilities. It is clear that neither applicant would have succeeded even if a reasonable degree of likelihood test had been adopted, so neither applicant has standing to challenge the decision in question on that ground.
Even if I am wrong about the foregoing, the applicants have the difficulty that the basis of the point being made under this heading is not set out on the pleadings. In each case, ground 1 of the statement of grounds baldly asserts the lack of a correct standard but fails to specify whether the appropriate standard derives from EU law, international law or domestic law, leaving the argument entirely elastic for the High Court hearing, if not beyond. Even the applicants” written submissions failed to particularise the basis of the claim, and it was only when we got oral submissions that any degree of clarity has been introduced, but there is certainly no guarantee that that will not mutate further if the case goes to another forum. The grounds as pleaded do not refer to constitutional law, the ECHR as incorporated by the European Convention on Human Rights Act 2003, international law or any particular international instrument, common law or indeed EU law, which was the centrepiece of the applicant's oral submission. Nor is any specific EU law instrument referred to. The grounds refer to a U.K. case, but by definition U.K. caselaw does not amount to a legal ground for relief by way of judicial review in Ireland. The pleadings do not comply with O. 84 r. 20(3) and in my view it would be procedurally entirely inappropriate to grant relief based on such vague grounds. I should add that it would also be massively unfair to the respondents to have to deal with a potentially permanently mutating case which is, on these pleadings, entirely lacking in particulars.
Assuming arguendo that I am wrong about all of the foregoing, the applicants then have the fundamental problem that they have not made out any legal basis for the application of the test contended for. As might be suggested by the complete inadequacy of the pleadings, there was quite some difficulty at the hearing in getting a hold of what the legal basis for the alleged test in fact was. Mr. O'Shea's argument did not amount to a whole lot more than casting about internationally for different tests and urging the most favourable ones on the court. Indeed, the precise contours of what was being contended for seemed to be mutating as the argument developed at the hearing. Mr. Conlan Smyth submitted...
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