P.A.F. (Nigeria) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 15 March 2019
• Neutral Citation: [2019] IEHC 204
• Court: High Court
• Docket Number: [2018 No. 823 J.R.]
• Date: 15 March 2019

[2019] IEHC 204

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 823 J.R.]

BETWEEN

P.A.F. (NIGERIA)

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

Immigration and asylum – Subsidiary protection – Refugee – Applicant seeking an order of certiorari – Whether the respondent erroneously applied a “very high threshold of atrocity” test rather than an “atrocity” test

Facts: The applicant arrived in the State on 4th December, 2015 and applied for asylum on 7th December, 2015. On 3rd November, 2016 the Refugee Applications Commissioner rejected his claim for asylum and did not accept the credibility of his account. He appealed to the Refugee Appeals Tribunal on 16th December, 2016. On 31st December, 2016 the International Protection Act 2015 came into operation and the applicant submitted an application for subsidiary protection on 21st February, 2017. In the course of that application the applicant submitted a number of medical reports attesting to his suffering from post-traumatic stress disorder and related symptoms. On 8th December, 2017 the International Protection Office rejected the application for subsidiary protection and on 16th January, 2018 the applicant appealed to the first respondent, the International Protection Appeals Tribunal. On 19th September, 2018 the tribunal rejected the appeals. The tribunal member accepted the credibility of the applicant’s account but held that the applicant could internally relocate within Nigeria. The tribunal also held that there were no compelling reasons arising out of past persecution which would render the applicant eligible for protection as a refugee. Barrett J granted leave in these proceedings on 15th October, 2018, the primary relief sought being an order of certiorari quashing the tribunal decision in part, namely as to paras. 8.2, 9.1, 12.3 and the first sentence of para. 12.4 only. The applicant’s main argument was focused on ground 3 of the statement of grounds, which contended that “The first respondent erred in law in applying the wrong test when considering whether or not there were “compelling reasons” arising out of past persecution alone which would warrant a determination that the applicant is eligible for protection as a refugee. The first respondent erroneously applied a “very high threshold of atrocity” test rather than an “atrocity” test.”

Held by the High Court (Humphreys J) that the tribunal asked the incorrect question under that heading; the correct question was whether past persecution was atrocious to the extent that compelling reasons to afford the applicant refugee status exist because the applicant could not reasonably be expected to return notwithstanding regime change or an internal relocation option.

Humphreys J held that the order would be one quashing the tribunal decision in part, namely as to paras. 8.2, 9.1, 12.3 and the first sentence of para. 12.4, and remitting the matter to the same tribunal member to complete his decision in accordance with this judgment.

Order granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 15th day of March, 2019

1 The applicant was born in Nigeria in 1987 and worked there as an evangelical Christian preacher. He and his partner had two children together there and lived with his parents, sister and children. His claim, which was essentially accepted by the International Protection Appeals Tribunal, was that on 16th September, 2015 his family home was the subjected of an attack by Boko Haram, his father was shot, the applicant was forced to lie in his blood, and was threatened with a knife. His father was then stabbed and died from his injuries. The applicant was then taken prisoner for approximately two months and was subject to torture and inhuman and degrading treatment.

2 He arrived in the State on 4th December, 2015 and applied for asylum on 7th December, 2015. On 3rd November, 2016 the Refugee Applications Commissioner rejected his claim for asylum and did not accept the credibility of his account. He appealed to the Refugee Appeals Tribunal on 16th December, 2016. On 31st December, 2016 the International Protection Act 2015 came into operation and the applicant submitted an application for subsidiary protection on 21st February, 2017. In the course of that application the applicant submitted a number of medical reports attesting to his suffering from post-traumatic stress disorder and related symptoms. On 8th December, 2017 the International Protection Office rejected the application for subsidiary protection and on 16th January, 2018 the applicant appealed to the International Protection Appeals Tribunal. On 19th September, 2018 the tribunal rejected the appeals. The tribunal member accepted the credibility of the applicant's account but held that the applicant could internally relocate within Nigeria. The tribunal also held that there were no compelling reasons arising out of past persecution which would render the applicant eligible for protection as a refugee; and the present proceedings turn on that latter aspect of the decision.

3 Barrett J. granted leave in the present proceedings on 15th October, 2018, the primary relief sought being an order of certiorari quashing the tribunal decision in part, namely as to paras. 8.2, 9.1, 12.3 and the first sentence of para. 12.4 only. A statement of opposition was filed on 25th January, 2018 and I have now received helpful submissions from Mr. Mark de Blacam S.C. (with Ms. Marie Flynn B.L.) for the applicants and from Mr. Tim O'Connor B.L. for the respondents.

Whether the applicant can seek to quash part of a decision only

4 While the applicant has raised this as a question, it does not appear to be particularly disputed on behalf of the respondents. If the part of the decision that is impugned is legitimately severable from the remainder there is no reason why an applicant cannot seek to quash a decision in part only, or indeed why a court cannot fashion that as an appropriate remedy in a particular case (see H.A.A. (Nigeria) v. Minister for Justice and Equality [2018] IEHC 34 [2018] 1 JIC 2303 (Unreported, High Court, 23rd January, 2018), A.A. (Pakistan) v. International Protection Appeals Tribunal [2018] IEHC 497 [2018] 7 JIC 3138 (Unreported, High Court, 31st July, 2018)).

Test to be applied when assessing the presence of compelling reasons

5 Mr. de Blacam's main argument was focused on ground 3 of the statement of grounds, which contends that ‘ The first respondent erred in law in applying the wrong test when considering whether or not there were ‘compelling reasons’ arising out of past persecution alone which would warrant a determination that the applicant is eligible for protection as a refugee. The first respondent erroneously applied a ‘very high threshold of atrocity’ test rather than an ‘atrocity’ test.’

6 The origin of the ‘compelling reasons arising out of past persecution’ standard lies in the somewhat different context of art. 1 of the Geneva Convention. Article 1A defines the term ‘ refugee’ as applying to two categories of persons essentially (1) pre-1951 refugees and (2) current and future refugees. That distinction has some relevance to the later clause of the Convention dealing with cessation of refugee status. Under art. 1C, the Convention ‘ shall cease to apply to any person falling under the terms of section A’ if one of a number of situations arise. The relevant situation in the present case is that under para. 5, which is ‘ He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; Provided that this paragraph shall not apply to a refugee falling under section A (1) of this article who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality’. A similar proviso in relation to compelling reasons arising out of previous persecution also applies to the related exception at para. 6 of art. 1C of the Convention.

7 Thus, under the Geneva Convention, the question of compelling reasons arising from past persecution is not a ground for recognition of refugee status as such in the first place but only an exception to the application of the cessation clause. It does not extend the definition of refugee in the first instance but allows somebody who has already been recognised as a refugee to continue to be so recognised where the basis for that recognition would otherwise have ceased to exist. These provisions of the Geneva Convention were implemented as an exception to the cessation or revocation procedure in the Refugee Act 1996 at s. 21(2). However, that provision goes well beyond the Geneva Convention. The compelling reasons proviso to the cessation clause under the Geneva Convention only applies to art. 1A(1) refugees, that is pre-1951 refugees, rather than contemporary refugees. Hathaway and Foster in The Law of Refugee Status, 2nd ed. (Cambridge, 2015) at p. 490 state that this is ‘ no accident’, citing R. v. Special Adjudicator ex parte Hoxha [2005] UKHL 15 at para. 16. Notwithstanding that limitation in the Geneva Convention, the benefit of this exception to the cessation clause has been extended by Irish legislation to all refugees, whether historic or contemporary. However, the point remains that the Geneva Convention has ‘ no provision to grant status to persons on the basis of past persecution alone’ (Hathaway and Foster at p. 163).

8 A separate development then occurred by virtue of reg. 5(2) of the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006), which provides that the fact that a protection applicant has already been subject to previous persecution or serious harm or...