M.Z. (Pakistan) v The International Protection Appeals Tribunal No.2

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Richard Humphreys
Judgment Date29 April 2019
Neutral Citation[2019] IEHC 315
Docket Number[2018 No. 242 J.R.]
Date29 April 2019

[2019] IEHC 315

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 242 J.R.]

BETWEEN
M.Z. (PAKISTAN)
APPLICANT
AND
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

(No. 2)

Judicial review – Subsidiary protection – Questions of exceptional public importance – Applicant seeking certiorari of a decision of the respondent refusing subsidiary protection – Where a finding has been made by an international protection decision-maker that an applicant has been subject to an ‘act of persecution’ is this sufficient to establish that the applicant has also been subject to ‘an act of serious harm’ for the purposes of subsidiary protection?

Facts: The High Court (Humphreys J), in M.Z. (Pakistan) v International Protection Appeals Tribunal (No. 1) [2019] IEHC 125, dismissed an application for certiorari of a decision of the first respondent, the International Protection Appeals Tribunal, refusing subsidiary protection to the applicant. He sought leave to appeal, proposing four issues of what were said to be exceptional public importance: (i) “where a finding has been made by an international protection decision-maker that an applicant has been subject to an ‘act of persecution’ is this sufficient to establish that the applicant has also been subject to ‘an act of serious harm’ for the purposes of subsidiary protection?” (ii) “where medical evidence documents that an applicant’s physical injury is ‘probably’ due to a cause consistent with his account must this injury be accepted by the International Protection decision-maker as a material fact? Must an International Protection decision-maker have regard to findings in a medico-legal report that an applicant’s cognition is possibly affected by mental health issues as an explanation for inconsistencies in an applicant’s account?” (iii) “where mostly positive but some adverse credibility findings have been made, is a protection decision-maker entitled to deny an applicant the benefit of the doubt in relation to an uncertain material fact” (iv) “under what circumstances may a judicial review court exercise discretion to deny an otherwise meritorious application for certiorari of an impugned international protection decision”.

Held by Humphreys J that: (i) the answer to this question is “obviously not”, as a matter of fairly basic international protection law; (ii) as far as the first question is concerned, again, the answer is “obviously not”, and the second question did not arise because the tribunal did have regard to the applicant’s medico-legal report; (iii) there is simply no statable basis to suggest that an applicant who fails to establish general credibility is entitled to the benefit of the doubt; and (iv) this question did not arise because this was not “an otherwise meritorious application”.

Humphreys J held that the application would be refused.

Application refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on 29th April, 2019
1

In M.Z. (Pakistan) v. International Protection Appeals Tribunal (No. 1) [2019] IEHC 125 [2019] 2 JIC 1510 (Unreported, High Court, 15th February, 2019) I dismissed an application for certiorari of an IPAT decision refusing subsidiary protection to the applicant. He now seeks leave to appeal and I have considered the caselaw in that regard, including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006), Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was), and I.R. v. Minister for Justice and Equality [2009] IEHC 510 [2015] 4 I.R. 144, per Cooke J. I have also discussed these criteria in a number of cases, including S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016) (para. 2), and Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017) (para. 72).

2

The applicant proposes four issues of what are said to be exceptional public importance and I will deal with these in turn. I have received helpful submissions in that regard from Mr. Eamonn Dornan B.L. for the applicant and from Mr. Peter Leonard B.L. for the respondents.

Is a finding of persecution sufficient to establish serious harm?
3

The applicant's first proposed question of exceptional public importance is: ‘where a finding has been made by an international protection decision-maker that an applicant has been subject to an “act of persecution” is this sufficient to establish that the applicant has also been subject to “an act of serious harm” for the purposes of subsidiary protection?’.

4

The answer to this question is ‘obviously not’, as a matter of fairly basic international protection law. Furthermore, it has already been subject to appellate court clarification because the relevant definition of subsidiary protection insofar as it relates to inhuman and degrading treatment or punishment overlaps in pertinent part with art. 3 of the ECHR, as applied here by the European Convention on Human Rights Act 2003, in respect of which the Supreme Court has already opined. Charleton J. said in P.O. v. Minister for Justice and Equality [2015] IESC 64 [2015] 3 I.R. 164 at para. 39that: ‘ particular, and quite extreme, circumstances will be required before the prohibition against torture and inhuman and degrading treatment as guaranteed by Article 3 of the Convention can be invoked’.

5

The applicant's written legal submissions contend at para. 41 that there is no definition in the International Protection Act 2015 of ‘ acts of serious harm’. That is unfortunately a totally specious point because there is a definition of ‘ serious harm’. The term ‘ serious harm’ does not have its everyday meaning of harm that happens to be serious. It has a very specific and express definition which unquestionably amounts to a very high bar. Section 2(1) of the 2015 Act provides that ‘“serious harm” means (a) death penalty or execution, (b) torture or inhuman or degrading treatment or punishment of a person in his or her country of origin, or (c) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in a situation of international or internal armed conflict.’

6

The applicant's written submissions at paras. 42 and 43 seek to make the point that some provisions of the qualification directive 2004, particularly arts. 4 and 6, and therefore of the 2015 Act, s. 28(6) and s. 30, refer to both subsidiary protection and persecution. However, the applicant's logic then breaks down to the level of saying that two plus two equals five by contending that ‘ accordingly the acts of persecution and serious harm appear prima facie to be interchangeable’. They are not interchangeable and nor do they appear so.

7

Article 4(4) of the qualification directive treats the two together linguistically but is meant to be read disjunctively in the context of whatever type of claim is being made. Article 4(4) states that ‘The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or serious harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.’ What art. 4(4) of the qualification directive and therefore s. 28(6) of the 2015 Act mean in this context is that, in the case of a claim of persecution, the fact that an applicant has already been subject to...

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2 cases
  • A.C. v International Protection Appeals Tribunal
    • Ireland
    • High Court
    • 5 July 2022
    ...Refugee Appeals Tribunal [2017] IEHC 1334, and Humphreys J. again in M (Pakistan) v The International Protection Appeals Tribunal No. 2 [2019] IEHC 315. The respondents contend that the Tribunal properly applied s. 28(7) to their consideration of whether the applicant was entitled to the be......
  • N. v The International Protection Appeals Tribunal
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    • 29 July 2019
    ...v IPAT (No.1) [2018] IEHC 512, RS (Ukraine) v IPAT (No.2) [2018] IEHC 743, AMN v RAT [2012] IEHC 393 and MZ (Pakistan) v IPAT (No.2) [2019] IEHC 315). Although the wording of the impugned decision was a little unclear in this regard, it did seem, from para.4.3.31 of the impugned decision, w......

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