E.Q. v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 27 June 2018
• Neutral Citation: [2018] IEHC 375
• Court: High Court
• Docket Number: [2016 No. 358 J.R.]
• Date: 27 June 2018

BETWEEN

E.Q.

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

[2018] IEHC 375

[2016 No. 358 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Immigration and asylum – Judicial review – Refugee status – Applicant seeking judicial review of a decision of the respondent – Whether the respondent failed to consider all of the material that had been submitted to it

Facts: The applicant applied to the High Court seeking judicial review of a decision of the first respondent, the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal (the IPAT), dated 25 April 2016 and made under s. 16(2)(a) of the Refugee Act 1996, affirming a recommendation of the Refugee Applications Commissioner that the applicant should not be declared a refugee. On the 30th May 2016, Mac Eochaidh J gave the applicant leave to apply for certain reliefs, including an Order of certiorari quashing the IPAT decision, on the single ground that, in reaching that decision, the IPAT failed to take into account, either properly or at all, certain relevant material comprising: first, the contents of a letter that the applicant wrote to IPAT on 21 March 2016; and second, certain country of origin information (COI) that the applicant submitted to it. In their statement of opposition, dated 9 December 2016, the respondents pleaded that the IPAT considered all of the material that had been submitted to it.

Held by Keane J that he could find no unusual factors present in this case comparable to those identified by Birmingham J in T.G. v Refugee Appeals Tribunal [2007] IEHC 377. Keane J noted that there was no suggestion in the IPAT decision that the tribunal chose to prefer the contents of a conflicting report over those of the Human Rights Watch report, as none was identified. Nor could Keane J find anything in the IPAT decision that was directly inconsistent with the contents of the relevant extract from the Human Rights Watch report. Keane J held that the applicant's claim in this case did not founder because the IPAT decision rejected the relevant contents of that report – the decision expressly accepted that the Ethiopian government harshly suppresses dissent and persecutes known dissidents and members of Ginbot 7. Keane J held that the applicant's claim ran aground because the applicant failed to persuade the tribunal of the credibility of his testimony that he had been personally targeted as a blogger by the Ethiopian government and because he failed to satisfy the tribunal on the evidence presented that he could be identified or traced as the person behind the username under which he had posted copies of various articles critical of the Ethiopian government on certain social media platforms, whether those posts originated in Ireland or Ethiopia. For those reasons, it seemed to Keane J that the circumstances of this case were more closely analogous to those in the case of F.O. v Minister for Justice & Ors [2008] IEHC 213, which Birmingham J distinguished from T.G. on the basis that it was 'not one in which the documentation submitted was so directly on point and so critical, in the circumstances, as to call for a specific assessment.' Keane J found that to be the position in this case also. Applying L.R. and L.T. v Minister for Justice [2002] 1 IR 260 and Lelimo v Minister for Justice [2004] 2 IR 178, Keane J was satisfied that he had no jurisdiction to consider either of the grounds upon which the applicant sought, but was not granted, leave to seek judicial review.

Keane J held that the application for judicial review would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 27th June 2018

Introduction

1 The applicant seeks judicial review of a decision of the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal ("the IPAT"), dated 25 April 2016 and made under s. 16(2)(a) of the Refugee Act 1996, as amended ("the Refugee Act"), affirming a recommendation of the Refugee Applications Commissioner ("the commissioner") that the applicant should not be declared to be a refugee ("the IPAT decision").

2 On the 30th May 2016, Mac Eochaidh J gave the applicant leave to apply for certain reliefs, including an Order of certiorari quashing the IPAT decision, on a single ground.

3 That ground is that, in reaching that decision, the IPAT failed to take into account, either properly or at all, certain relevant material comprising: first, the contents of a letter that the applicant wrote to IPAT on 21 March 2016; and second, certain country of origin information ("COI") that the applicant submitted to it. In their statement of opposition, dated 9 December 2016, the respondents join issue on that ground, pleading that the IPAT considered all of the material that had been submitted to it.

4 At the time when leave was granted, the International Protection Appeals Tribunal was known as the Refugee Appeals Tribunal. When s. 71(5) of the International Protection Act 2015 ("the Act of 2015") came into force on the 31st December 2016, the former was substituted for the latter in these proceedings by operation of law.

Background

5 5. The applicant is an Ethiopian national who applied for asylum in the United Kingdom on 4 July 2013. On 16 August 2013, the United Kingdom requested, pursuant to Article 17 of Council Regulation (EC) No. 343/2003 ("the Dublin II Regulation"), that Ireland take charge of the applicant. It seems the applicant had entered the United Kingdom from Ireland, where he had been a student. Ireland acceded to that request on 19 September 2013 and the applicant was transferred back to Ireland on 13 February 2014.

6 The applicant formally applied for refugee status in the State on the following day, 14 February 2014. His claim was that he had a well-founded fear of persecution by reason of his political opinion if returned to Ethiopia. The applicant was interviewed on 28 June 2014, pursuant to s. 11(2) of the Refugee Act.

7 In a report made pursuant to s. 13(1) of the Refugee Act on 28 July 2004, the commissioner recommended that the applicant should not be declared to be a refugee. That report was furnished to the applicant under cover of a letter from the commissioner's office, dated 25 August 2014. The applicant purported to exhibit the report to his grounding affidavit in these proceedings but did not do so – it was subsequently exhibited to an affidavit sworn on behalf of the respondents.

8 The applicant appealed against that recommendation by notice of appeal, dated 11 September 2014. That appeal was heard by the IPAT on 18 January 2016. As already noted, the IPAT decision, dated 25 April 2016, affirmed the recommendation of the commissioner.

9 Although that is the decision directly under challenge in these proceedings, the applicant failed to exhibit it to the affidavit that he swore to ground his application for leave to seek judicial review. While I think it fair to say that, in the general run of judicial review proceedings, the omission from the applicant's papers of the central document in the case would be considered astonishing, if not unprecedented, this is not the first time it has happened in the immigration and asylum field. The explanation may be found in the approach to these cases widely adopted on behalf of applicants, whereby the impugned decision is tucked away as one of the last exhibits to the grounding affidavit, intended to be referred to, almost as an afterthought, only once the asserted merits of the applicant's substantive claim – already ventilated both at first instance and before the tribunal - have been again rehearsed in detail and at length.

10 It should not have to be endlessly reiterated that this court is engaged in a review of the decision-making process and not in hearing an appeal de novo on the merits of the underlying claim; see, most recently, the decision of the Supreme Court in E.D. (a minor) v Refugee Appeals Tribunal [2017] 1 I.R. 325 (Clarke J, at 338-9 and Charleton J, at 352).

11 It would be a cardinal error to allow sympathy for the applicant's personal circumstances to taint what should be a detached and objective assessment of the fairness and lawfulness of the decision-making process, just as it would be to allow any antipathy towards the applicant to do so. And yet, in case after case in this list, counsel for the applicant insists on recapitulating in detail and at length the asserted merits of the applicant's underlying claim and, very often, counsel for the Minister, who has if anything less excuse, responds by addressing at considerable length the asserted inconsistencies, evasions, omissions, errors, untruths or other shortcomings that tend to undermine it. This nearly ritual, preliminary excursus in the greater proportion of these cases makes the conduct of litigation in this list take much longer than it should, overstretching scarce court resources and causing delay to other litigants. I hasten to add that, while I have used this judgment as the occasion for these remarks, they are not intended in any way as a criticism of counsel in this case, whose presentation of oral argument cannot be faulted.

12 The applicant's solicitor swore an affidavit on 2 June 2016, some days after leave to seek judicial review had been obtained on 30 May 2016, belatedly exhibiting the decision under challenge. In that affidavit, the applicant's solicitor averred that the failure to exhibit the decision to the applicant's grounding affidavit had been the result of unspecified "human error", and that the court had been given sight of the decision for the purposes of the application for leave ex parte, together with an undertaking to exhibit it to an affidavit "as soon as practicable" afterwards.

The applicant's claim for refugee status

13 The applicant claims that he has a well-founded fear of persecution on...