N.E. (Georgia) v International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 18 November 2019
• Neutral Citation: [2019] IEHC 784
• Date: 18 November 2019
• Docket Number: [2018 No. 917 J.R.]
• Court: High Court

[2019] IEHC 784

THE HIGH COURT

JUDICIAL REVIEW

Richard Humphreys

[2018 No. 917 J.R.]

BETWEEN

N.E. (GEORGIA)

APPLICANT

AND

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

AND

IRELAND

RESPONDENT

(NO. 2)

Judicial Review – Asylum Immigration and Nationality – Leave to Appeal – Respondents seeking leave to appeal decision of the High Court granting order of certiorari to the applicant – Whether the respondents had met the criteria for allowing leave to appeal a decision of the High Court

Facts: This was an application for leave to appeal a decision of the High Court granting an order of certiorari quashing a decision of the International Protection Appeals Tribunal.

Held by Humphreys J that it was not an appropriate case for appeal. Humphreys J did not find merit in any of the three proposed questions submitted by the respondent. Moreover, the applicant had succeeded independently on a separate ground (Ground 6) for which no question warranting leave to appeal was raised. As such, the points were irrelevant as even if the higher court took a different view it would not result in a different outcome. Finally, Humphreys J noted that allowing an appeal would further delay the applicant’s application for asylum, which was already significantly delayed. Such a delay would in itself amount to a breach of the applicant’s rights without any corresponding or equivalent benefit to the public interest.

Relief denied.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 18th day of November, 2019

1 In N.E. (Georgia) v. International Protection Appeals Tribunal (No. 1) [2019] IEHC 700 (Unreported, High Court, 21st October, 2019) I granted an order of certiorari directed to the decision of the International Protection Appeals Tribunal rejecting the appeal of the applicant. Mr. Anthony Moore B.L. for the respondents now applies for leave to appeal and I have heard helpful submissions from him and from Mr. Garry O'Halloran B.L. for the applicant. I have considered the law on leave to appeal as set out in 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), I.R. v. Minister for Justice and Equality [2009] IEHC 510 [2015] 4 I.R. 144 per Cooke J., and M.A.U. v. Minister for Justice Equality and Law Reform (No. 3) [2011] IEHC 59 (Unreported, High Court, 22nd February, 2011) per Hogan 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 There are two contextual points worth making at the outset. Firstly, I should emphasise that I do not in any way hold it against the respondents that they did not take up the suggestion that I made after the conclusion of the hearing to see if the case could be compromised, a suggestion that I would probably have to admit was made more forcefully than usual in this particular case. I did not hold that against the respondents when giving judgment and I do not hold it against them now. I fully respect the separation of powers and the entitlement of the State, or indeed any litigant, to reject any suggestion from the bench.

3 Secondly, it is worth making the point that in respect of at least nine of my own previous decisions, applicants have been refused leave to appeal both by me in the first instance and by the Supreme Court on leapfrog application: see J.N.E. v. Minister for Justice and Equality [2017] IESCDET 86, Igbosonu v. Minister for Justice and Equality [2018] IESCDET 51, V.D. v. Minister for Justice and Equality [2019] IESCDET 41, A.M.C. v. International Protection Appeals Tribunal [2019] IESCDET 88, Seredych v. Minister for Justice and Equality [2018] IESCDET 157, O.A. v. Minister for Justice and Equality [2019] IESCDET 87, M.S.R. v. International Protection Appeals Tribunal [2019] IESCDET 123, M.E.O. v. International Protection Appeals Tribunal [2019] IESCDET 165 and U.O. v. International Protection Appeals Tribunal [2019] IESCDET 166. In terms of equality of arms, it cannot be the case that the State has some preferential entitlement to, or presumption of, a grant of leave to appeal in cases where it, rather than an applicant, seeks such leave, and in fairness to him Mr. Moore totally accepts that.

4 With those points made, this is by some distance the weakest application for leave to appeal made to me by the State to date.

Proposed question arising from ground 2 of the Statement of Grounds

5 The respondents' first proposed question arises from ground 2 of the statement of grounds and is: “Where a protection decision-maker has made an adverse credibility finding based on an applicant's inability accurately to answer questions pertaining to the assertions materially underpinning his or her application for international protection, is the High Court entitled to conclude that the protection decision-maker ought to have overlooked the said inaccurate answers and treated the applicant's credibility as having been established?”

6 First of all, this question is tendentious in that I did not conclude that the protection decision-maker ought to have overlooked “inaccurate answers” and treated the applicant's credibility as having been established.

7 Mr. Moore stated that the tribunal's concern was how it would assess answers that are partly right and partly wrong and that “on one interpretation” the judgment displaces the tribunal's decision-making function and moves the centre of gravity of decision-making to the court. But that is a misunderstanding of the import of the judgment. It is up to the tribunal to assess the weight of the evidence but it must base its assessment on a rational approach to the correct facts in evidence in the individual case. Insofar as the principal judgment is concerned, that is a totally fact-specific point. The tribunal's assessment of the issue of the publication date, to take that example, at para. 4.8 of the tribunal decision, makes no reference to the elaborate kind of argument now launched by Mr. Moore in defence of the decision. It simply says that “the applicant was clearly uncertain … about the day of the week of publication”. That puts the applicant in the same category as a person who has no idea of the date of publication, but the applicant is not in that category so the decision is not rational on the very specific facts here. There is no point of general importance whatsoever and no wider implications. The judgment was simply a restatement of the basic law that the decision-maker must assess that correct facts. The caselaw relied on by the respondents ( O.O. v. Refugee Appeals Tribunal [2004] IEHC 426 [2004] 4 I.R. 426, I.R. v. Refugee Appeals Tribunal [2009] IEHC 353 (Unreported, Cooke J., 24th July, 2009), R.A. v. Refugee Appeals Tribunal [2017] IECA 297 (Unreported, Court of Appeal, 15th November, 2017) and R.A. v. Refugee Appeals Tribunal [2015] IEHC 686 (Unreported, High Court, 4th November, 2015) and M.H.C. v. Refugee Appeals Tribunal [2016] IEHC 648 [2016] 11 JIC 1406 (Unreported, High Court, 14th November, 2016)) is not in question. There is no conflict in the law as alleged. As Mr. O'Halloran correctly submits, all that I did under this heading and the headings I will discuss below was to apply the “thorough review” in terms of the...