R.S. (Ukraine) v The International Protection Tribunal ; I.H. (Ukraine) v The International Protection Tribunal No.2

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 03 December 2018
• Neutral Citation: [2018] IEHC 743
• Date: 03 December 2018
• Court: High Court
• Docket Number: [2017 No. 834 J.R.] [2017 No. 835 J.R.]

[2018] IEHC 743

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2017 No. 834 J.R.]

[2017 No. 835 J.R.]

BETWEEN

R.S. (UKRAINE)

APPLICANT

AND

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

AND

THE ATTORNEY GENERAL

RESPONDENTS

BETWEEN

I.H. (UKRAINE)

APPLICANT

AND

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

AND

THE ATTORNEY GENERAL

RESPONDENTS

(No. 2)

Asylum, Immigration and Nationality – Certiorari – Leave to Appeal– Applicant seeking leave to appeal a High Court decision refusing certiorari in respect of IPAT decision refusing applicants subsidiary protection – Whether applicant had shown grounds for appeal with exceptional public importance

Facts: The applicant sought leave to appeal a decision of the High Court refusing certiorari in respect of the International Protection Appeals Tribunal’s (IPAT) decision refusing subsidiary protection. The applicant argued that the tribunal disposed of a medico-legal report without making a proper determination as to its probative value with regard to a material fact at issue. The applicant further argued that they had established a lack of state protection under Regulation 16 of S.I. 426 pf 2-13 and Article 7(2) of Council Direction 2004/83/EC where they established that the change in regime has not resulted in any effective legal system for the direction, prosecution and punishment of acts constituting persecution or serious harm. Finally the applicant argued that the decision-maker acted unreasonably in the assessment of past harm and serious risk of future harm where an adverse finding of credibility was made arising from the applicant’s failure to seek medical or psychological assistance following an allegation of rape.

Held by Humphreys J that the applicant did not demonstrate any grounds of appeal with exceptional public importance. Humphreys J noted that the reliability of the medico-legal report was properly assessed in light of the evidence taken as a whole, and that the report was not disregarded but rather it was reasonably held to be insufficient. Regarding risk of future harm, Humphreys J held that the applicants did not demonstrate a risk of serious harm after the regime change. The evidence supported that fact that the new regime was opposed to the policies of the previous government and failure to fully punish all perpetrators of past harm does not constitute a lack of forward-looking protection. Humphreys J further held that the tribunals findings related to the applicant’s credibility were specific issues of fact and not law and in any event were not solely decided on the failure to seek counselling. Finally, as there were two separate and independent grounds for the tribunal decision, any appeal on the grounds stated would be futile having regard to the other independent grounds of refusal. The applications for leave to appeal were dismissed.

Relief refused.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of December, 2018

1 In R.S. (Ukraine) v. International Protection Appeals Tribunal (No. 1) [2018] IEHC 512 (Unreported, High Court, 17th September, 2018) I refused certiorari in respect of IPAT decisions refusing the applicants subsidiary protection. The applicants now seek leave to appeal, and I have considered the law in that regard as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006) and Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was). 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 I have received helpful submissions from Mr. Eamonn Dornan B.L. for the applicants, from Mr. Peter Leonard B.L. for the respondents in the husband's case and from Mr. Alexander Caffrey B.L. for the respondents in the wife's case.

Question 1

3 The first proposed question of exceptional public importance is ‘ Is an international protection decision-maker obliged to determine the probative value to be afforded to a medico-legal report in relation to the material fact for which it is proffered, or can the decision-maker dispose of it as ‘insufficient’ in the context of a general credibility assessment?’.

4 First of all, the submission made under this heading suffers from a certain terminological mangling. It confuses disregard with discounting. The medical report was not disregarded. Regard was had to it but it was held to be insufficient.

5 Secondly, documentary evidence can perfectly lawfully be held to be insufficient. The applicants' submission is overdetermined. A report can only tell so much unless it is diagnostic of a particular account. Merely being consistent, or even highly consistent, with an account does not of itself prove the account to be correct. That it not a difficult or problematic concept or one on which reasonable or any doubt arises or could arise.

6 Thirdly, it is well-established that a decision-maker should not compartmentalise the various components of the interlocking aspects of a decision. There is a fundamental difficulty with the notion that you can divorce an assessment of the reliability of a document, including a medical report, from an assessment of the reliability of the person providing the information contained in the document or producing that document, for example by postulating that these two processes can be put in watertight compartments and the latter only assessed after the former. We would not do this in real life. Issues with one naturally and legitimately inform the other. High Court judges for example do not do that when assessing evidence. If a person is caught out in a lie in oral evidence, that may cast doubt on a document that he or she has earlier produced that might otherwise look valid on its face. If such a holistic approach is legitimate, which it is, it is not possible to credibly suggest that documents or reports can be assessed separately from and in advance of an assessment of an applicant's credibility: see also K.M. (Pakistan) v. Minister for Justice and Equality [2018] IEHC 510 [2018] 7 JIC 1005 (Unreported, High Court, 10th July, 2018).

7 Mr. Dornan's submission is that the tribunal has to make what he calls a ‘ proper determination of the material facts’, which in practice would mean disregarding anything adverse to an applicant, such as the major question marks over his account. That would be a blinkered determination. The fact that evidence against an applicant outweighs, in the opinion of the tribunal, the evidence in his or her favour, does not mean that a methodological error has been committed. The applicants' submission that the tribunal did not make proper findings of material fact comes down to an assertion that the tribunal did not make prematurely favourable findings on limited evidence. The tribunal is certainly neither obligated nor entitled to make any determination of material fact separately from a holistic assessment of the evidence, and indeed it would be an error of law to do so.

8 It is true that Hogan J. said by way of obiter comment in R.A. v. Refugee Appeals Tribunal [2017] IECA 297 (Unreported, Court of Appeal 15th November, 2017) (para. 62) that ‘ given the alleged provenance of the documents and their obvious relevance to his claim, if true, it was...