R.J. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 21 June 2019
• Neutral Citation: [2019] IEHC 448
• Docket Number: [2016 No. 563 JR]
• Court: High Court
• Date: 21 June 2019

[2019] IEHC 448

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2016 No. 563 JR]

BETWEEN

R.J.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Judicial review – Refugee – Subsidiary protection – Applicant seeking judicial review of a decision of the respondent affirming a recommendation of the Refugee Applications Commissioner that the applicant should not be declared to be a person eligible for subsidiary protection – Was the ‘balance of probabilities’ the correct standard of proof to apply to past events?

Facts: The applicant sought judicial review of a decision of the second respondent, the International Protection Appeals Tribunal (the IPAT), then known as the Refugee Appeals Tribunal, dated 4th May 2016 and made under Regulation 8(22)(a) of the European Union (Subsidiary Protection) Regulations 2013, then applicable, affirming a recommendation of the Refugee Applications Commissioner that the applicant should not be declared to be a person eligible for subsidiary protection. In his statement of grounds, the applicant advanced eight separate grounds of challenge to the IPAT decision, which, in his written legal submissions, he presented as raising the following four questions: (a) Was the ‘balance of probabilities’ the correct standard of proof to apply to past events? (b) Was the applicant’s credibility correctly assessed? (c) Did the tribunal comply with the obligation to provide reasons for its decision? (d) Did the tribunal correctly consider the internal relocation alternative?

Held by the High Court (Keane J) that: (a) this point had already been resolved against him by the court in O.N. v Refugee Appeals Tribunal [2017] IEHC 13; (b) having read the six-page portion of the tribunal’s decision that was directed towards an assessment of the applicant’s credibility, it could find no substance in any of the applicant’s criticisms of it; (c) in compliance with the obligation to give reasons, as a corollary to the principle of respect of the rights of the defence under EU law, confirmed by the ECJ in Case C-417/11 Council v Bamba ECLI:EU:C:2012:718, the applicant was provided with sufficient information to make it possible to ascertain whether the decision was well-founded or vitiated by a defect that would allow its legality to be contested before, and reviewed by, the appropriate court; and (d) even if the relevant portion of the tribunal decision (at para. 5.10) could be construed as a purported assessment of the internal relocation alternative (and it did not think it could), and as one conducted otherwise than in accordance with the requirements of Art. 8 of Council Directive 2004/83/EC (the Qualification Directive) informed by the UNHCR Guidelines on Internal Flight (which, it was probably fair to say, it would then be), it would be a finding completely severable from the first, separate and free-standing one that there was no substantial basis to believe that the applicant would face a real risk of serious harm if returned to Bangladesh.

Keane J held that the application would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 21st June 2019

Introduction

1 This is the judicial review of a decision of the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal (“the IPAT”), dated 4th May 2016 and made under Regulation 8(22)(a) of the European Union (Subsidiary Protection) Regulations 2013 (“the 2013 Regulations”), then applicable, affirming a recommendation of the Refugee Applications Commissioner (“the Commissioner”) that the applicant should not be declared to be a person eligible for subsidiary protection (“the IPAT decision”).

2 On 25 July 2016, Mac Eochaidh J granted the applicant leave to apply for various reliefs, principal among which is an order of certiorari quashing the IPAT decision.

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

4 This is yet another case in which the Minister for Justice and Equality, Ireland and the Attorney General have been made respondents to the application, although no relief is sought against any of those persons, nor is any issue raised in which any of them has a direct interest, as a matter of law, suggesting the indiscriminate use of scissors and paste pot that is so much a feature of the immigration and asylum list. However, nothing turns on it.

Background

5 The applicant is a national of Bangladesh, born in 1969, who claims to have entered the State without permission in March 2009. After he was discovered working unlawfully in the State on 6 October 2009 and was arrested and detained, he applied for refugee status on 21 October 2009, claiming a well-founded fear of persecution on grounds of political opinion. The applicant claims to be a member of the Bangladesh Nationalist Party (“the BNP”) and to fear persecution at the hands of the Bangladesh Awami League, members of which, he claims, assaulted him shortly before he left Bangladesh and will kill him, should he return.

6 On 13 January 2010, the Commissioner recommended that the applicant not be recognised as a refugee on the basis that he had failed to establish the credibility of his claim to have a well-founded fear of persecution if returned to Bangladesh. On 14 May 2010, the Refugee Appeals Tribunal affirmed that recommendation on, effectively, the same ground. The Minister refused the applicant's refugee status application on 7 July 2010.

7 On 12 August 2010, the applicant applied for subsidiary protection. After an interval that has not been explained, but in respect of which no complaint is made on either side in these proceedings, the applicant was interviewed on behalf of the Commissioner on 11 November 2014, in accordance with Regulation 5(3) of the 2013 Regulations which had come into operation on 14 November 2013. Under Reg. 3(2) of the 2013 Regulations, any application for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006 (“the 2006 Regulations”) upon which the Minister had not made a decision before the commencement of the 2013 Regulations, was deemed to be an application made under the later regulations.

8 The Commissioner's written report on the investigation of the applicant's subsidiary protection claim, required under Reg. 6(1) of the 2013 Regulations, is also dated 11 November 2014. It was subsequently referred to by the tribunal as “the SP report”; “SP” presumably standing for subsidiary protection. In very short summary, it concluded that the applicant's claims were not credible and that no substantial grounds had been shown for believing that he would face a real risk of suffering serious harm if returned to Bangladesh. On 25 November 2014, the Commissioner recommended that the applicant should not be declared to be a person eligible for subsidiary protection.

9 The applicant submitted a notice of appeal on 19 March 2015. That appeal was heard on 1 March 2016.

The decision under challenge

10 The eleven-page IPAT decision is dated 4 May 2016 and was furnished to the applicant under cover of a letter, dated 11 May 2016. It concluded that the applicant had failed to establish the credibility of his claims or that there were substantial grounds to believe that he would face a real risk of serious harm if returned to Bangladesh. Thus, it concluded that he was not eligible for subsidiary protection.

Procedural history

11 The applicant sought, and was granted, leave to bring these proceedings on 25 July 2016, based on a statement of grounds dated 20 July 2016 and filed in the Central Office the following day, grounded on an affidavit of the applicant, sworn on 20 July 2016. The Minister filed a statement of opposition, joining issue with the applicant on each of the grounds raised, on 19 May 2017.

Extension of time

12 In the Order made on 25 July 2016, Mac Eochaidh J granted the applicant leave to seek, among other reliefs, an order granting an extension of time for the issue of these proceedings. In their statement of opposition, the respondents point out that the proceedings were not brought within the statutory time limit set down by s. 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended, and are out of time because the IPAT decision of 4 May 2016 was furnished to the applicant under cover of a letter of 11 May 2016, whereas the order granting leave was not made until 25 July 2016, strongly suggesting that the application for leave was made well outside the relevant time limit.

13 Section 5, sub-s 2 of the Illegal Immigrants (Trafficking) Act 2000, as substituted by s. 34 of the Employment Permits (Amendment) Act 2014 provides in respect of the judicial review of various types of decision, including, by operation of s. 5(1)(o), a decision of the tribunal under Reg. 8(22)(a) of the 2013 Regulations, that:

“An application for leave to apply for judicial review … shall be made within the period of 28 days commencing on the date on which the person was notified of the decision…unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made, and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision…is invalid or ought to be quashed.”

14 However, in his grounding affidavit, the applicant deposes to a number of matters that, he submits, amount to good and sufficient reason for extending time. In short, he received the decision on 12 May 2016 and immediately instructed his solicitor to challenge it; he...