O.O. v The International Protection Appeals Tribunal and The Minister for

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 15 March 2022
• Neutral Citation: [2022] IEHC 155
• Court: High Court
• Docket Number: 2020 747 JR

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (As Amended)

Between

O.O.

Applicant

and

The International Protection Appeals Tribunal and The Minister for

Respondents

[2022] IEHC 155

2020 747 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – International protection – Credibility – Applicant seeking judicial review – Whether the respondent erred in law in rejecting the applicant’s general credibility and his entire claim for international protection on the basis of disbelief of the applicant’s account of his travel from Nigeria and his entry into Ireland

Facts: The applicant, by order made on 19 October 2020, was granted leave to apply to the High Court by way of an application for judicial review in respect of the following reliefs: (i) “An order of certiorari sending forward to this Honourable Court for the purpose of being quashed the decision of the first named respondent, pursuant to s. 46 (3) (a) of the International Protection Act 2015, dated the 31st August 2020, issued to the applicant on the 2nd September 2020, affirming the recommendation of the International Protection Office that the Applicant should be refused a declaration as a refugee, and refused subsidiary protection status”; (ii) “Such further or other order as to this Honourable Court may deem meet including an extension of time, if necessary”; (iii) “An order providing for an award of the costs of these proceedings to the applicant”. No issue was taken by the respondent, the International Protection Appeals Tribunal, with regard to ‘time’. The “Legal Grounds” set out in the applicant’s statement of grounds dated 1 October 2020 began as follows: “1. The tribunal has erred in law in rejecting the applicant’s general credibility and his entire claim for international protection on the basis of disbelief of the applicant’s account of his travel from Nigeria, and his entry into Ireland. 2. The conclusions of the tribunal were reached unlawfully having failed to consider the core of the applicant’s claim, his experience in Nigeria, at all. 3. Further, or in the alternative, the findings of the tribunal that the applicant’s account of his travel to Ireland, and, in particular, his entry into the State without passing through Immigration Control at Dublin Airport, was implausible/incredible, was unreasonable or disproportionate”.

Held by Heslin J that the Tribunal did consider and decide upon the applicant’s core claim. Heslin J held that it was clear from the decision that, having looked at the applicant’s case “in the round” and having concluded that the core claim was not established on the balance of probabilities, the Tribunal proceeded to see if it was possible to extend the ‘benefit of the doubt’ to the applicant as regards his core claim. Focusing on the applicant’s account of his travel to Ireland, the Tribunal found that the applicant’s account was “extremely problematic”; Heslin J held that the reasons for this were made very clear and arose under two headings, namely “Implausibility” and “Vagueness”. Heslin J rejected the proposition that there was anything unreasonable about the Tribunal’s finding that the applicant’s account was entirely implausible; nor was there anything irrational about the Tribunal’s findings. Heslin J was entirely satisfied that the process by which the Tribunal reached an adverse credibility finding was legally sound and not vitiated by any material error of law. Heslin J held that the adverse credibility finding was not purely as a result of implausibility insofar as the content of the applicant’s account was concerned. It seemed to Heslin J that, on the particular facts of this case, the approach taken by the Court in I.E. v Minister for Justice and Equality [2016] IEHC 85 was the appropriate one at a level of principle. Applying the principle to the facts, Heslin J held that it was clear that due to a range of factors all of which were identified in the Tribunal’s decision, the first respondent took the view that the applicant’s account concerning his travel to Ireland was fundamentally undermining of his credibility and, thus, his general credibility had not been established.

Heslin J held that the applicant was not entitled to any relief and it was necessary to dismiss his application. There did not appear to Heslin J to be any fact or circumstance which would justify a departure from the ‘normal rule’ that costs follow the event.

Application refused.

Judgment of Mr. Justice Heslin delivered on 15th day of March 2022

Introduction

1 By order made on 19 October 2020 the applicant was granted leave to apply by way of an application for judicial review in respect of the following reliefs:-

• (i) “An order of certiorari sending forward to this Honourable Court for the purpose of being quashed the decision of the first named respondent, pursuant to s. 46 (3) (a) of the International Protection Act 2015, dated the 31st August 2020, issued to the applicant on the 2nd September 2020, affirming the recommendation of the International Protection Office that the Applicant should be refused a declaration as a refugee, and refused subsidiary protection status;

• (ii) Such further or other order as to this Honourable Court may deem meet including an extension of time, if necessary;

• (iii) An order providing for an award of the costs of these proceedings to the applicant”.

2 No issue is taken by the respondent with regard to ‘time’. The “Legal Grounds” set out in the applicant's statement of grounds dated 1 October 2020 begin as follows:-

• “1. The tribunal has erred in law in rejecting the applicant's general credibility and his entire claim for international protection on the basis of disbelief of the applicant's account of his travel from Nigeria, and his entry into Ireland.

• 2. The conclusions of the tribunal were reached unlawfully having failed to consider the core of the applicant's claim, his experience in Nigeria, at all.

• 3. Further, or in the alternative, the findings of the tribunal that the applicant's account of his travel to Ireland, and, in particular, his entry into the State without passing through Immigration Control at Dublin Airport, was implausible/incredible, was unreasonable or disproportionate in circumstances where:-

  • (a) further the Applicant is a Nigerian man who did in fact manage to enter the State without a valid visa;

  • (b) there was no Dublin III ‘hit’ or match in respect of the applicant's fingerprints to indicate that he had a valid visa for, or visited, any other EU Member State (including the UK) before coming to Ireland;

  • (c) it is well documented that migrants and refugees can, and have, passed through Dublin Airport without valid visas and/or without passing through Immigration Control;

  • (d) in 2018 a man who worked in Dublin Airport as a ground handler was jailed for 4 years for organising for third country nationals to bypass Dublin Airport Immigration Control by using staff swipe cards to access an employee gate which was not guarded or on camera (people smuggling). The conviction was widely reported in national media. This corresponds with the applicant's account of what happened at Dublin Airport.

  • (e) the tribunal has erred in law in rejecting the applicant's sworn evidence of events and his experience in Nigeria, as a result of having rejected his “general credibility” and thus rejecting the applicant's entitlement to the benefit of the doubt. The applicant provided on oath a detailed and coherent account of the events in Nigeria which resulted in his fleeing the country. This evidence was rejected as the applicant was disbelieved in relation to his account of his travel/arrival in Ireland only, which is entirely peripheral to his claim (a core claim upon which the Tribunal has granted appeals in the past) …”

Background

3 The applicant was born on the 23 June 1967 in Lagos, Nigeria. Before coming to Ireland, the applicant resided in Lagos working as a businessman managing a shop. He lived in a shared apartment with three other younger single men. The applicant is a heterosexual single male. He has never been married and has no children. The applicant claims that he and his flatmates were abused, and even attacked, due to a perception in the area that they were gay men.

4 The applicant sought asylum at the Office of the Refugee Applications Commissioner (“ORAC”) office in Dublin city on or about 16 February 2015 and completed an ‘ASY 1’ form and ‘s. 8’ interview. The applicant completed a Refugee Status questionnaire on 20 February 2015. The applicant underwent a ‘s. 11’ interview which was conducted by an authorised ORAC officer on 24 July 2015. A ‘s. 13 report’ issued from ORAC dated 28 August 2015 which recommended that the applicant should not be declared a refugee. By letter dated 6 October 2015 the applicant was informed that the Refugee Applications Commissioner recommended that he not be declared to be a person eligible for asylum. The relevant decision found that the applicant had not demonstrated a well-founded fear of suffering persecution if returned to Nigeria.

5 The applicant appealed the aforesaid decision by notice of appeal dated 27 October 2015. He completed an International Protection questionnaire in February 2017 and, by application dated 10 February 2017, applied for international protection, which included an application for subsidiary protection.

6 On 11 July 2017, the applicant was interviewed, pursuant to s. 35 of the International Protection Act, 2015 (“the 2015 Act”). On 23 November 2015, the International Protection Office (“IPO”) recommended, pursuant to s. 39 of the 2015 Act, that the applicant should not be given subsidiary protection on the basis that substantial grounds had not been shown for believing that the applicant would face a real risk of suffering serious harm if returned to Nigeria. The IPO had also...