R.S. (Ukraine) v The International Protection Appeals Tribunal ; I.H. (Ukraine) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 17 September 2018
• Neutral Citation: [2018] IEHC 512
• Docket Number: [2017 No. 834 J.R.]
• Date: 17 September 2018

[2018] IEHC 512

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

Immigration and asylum – Subsidiary protection – Certiorari – Applicants seeking certiorari of International Protection Appeals Tribunal decisions in relation to subsidiary protection – Whether there was no proper regard to medico-legal documentation

Facts: The applicants, a husband and wife from the Ukraine, came to the State and claimed asylum, in the course of which it was falsely denied that the husband had applied for an Irish visa. The asylum claims were rejected. That was appealed to the Refugee Appeals Tribunal, at which stage it was accepted that the visa application had been made. The appeal being unsuccessful, the applicants then both claimed subsidiary protection but those applications were rejected, and appeals to the International Protection Appeals Tribunal (IPAT) were dismissed on 5th October, 2017. On 6th November, 2017, leave was granted to the applicants to seek certiorari of the IPAT decisions in relation to subsidiary protection. The applicants alleged that: 1) there was no proper regard to medico-legal documentation; 2) the tribunal misunderstood O.O. and B.O. (Nigeria) v Minister for Justice, Equality and Law Reform [2011] IEHC 165 regarding impunity or lack of redress; 3) adverse credibility findings were based on conjecture and speculation, failed to deal with the substantive bases of the claim, were unreasonable and unfair, relied on the applicant's misrepresentations to the exclusion of other factors and dismissed the applicants' explanations; 4) there was a failure to apply the benefit of the doubt; and 5) there was a failure to have regard to the risk to the applicants in the light of the international armed conflict in the Ukraine and/or the risk of harm arising from being drafted.

Held by the High Court (Humphreys J) that: 1) the tribunal gave a separate independent reason for the decision even if it was wrong on the credibility assessment, so even if, counterfactually, the applicant had established a point under this heading, that point was not determinative and could not be a basis for quashing the decision unless the tribunal's other reason also fell; 2) the reference to O.O. and B.O. was prefaced by the phrase "C.f.", which suggested that the decision was contrary authority; 3) this case was a situation where there were two independent grounds for the decision, the validity of the second one being wholly divorced from that of the first, so even if the credibility assessment could not be sustained, the applicant would have to additionally show invalidity in relation to the reliance placed by the tribunal on the regime change, which had not been done.; 4) as para. 204 the UNHCR handbook makes clear, the benefit of the doubt only applies if the applicant's general credibility is accepted, which was not the case in this instance; and 5) the husband had not received a military call-up, had not evaded the military, did not have Ukrainian convictions and did not have an outstanding prison sentence to serve, so the claim of harm under this heading was speculative and the tribunal member's finding that it had not been proved had not been shown to be unlawful.

Humphreys J held that the applications would be dismissed.

Applications dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 17th day of September, 2018

1 These two applications relate to a husband and wife from the Ukraine. In 2012 the husband applied for an Irish visa under an alternative name. That was refused. In December, 2013 and January, 2014 the husband claims that he was arrested, detained and ill-treated due to involvement in protests in the Ukraine. In February, 2014 the wife claims that soldiers visited the house, warned against involvement in protests and raped her. The applicants came to the State and claimed asylum, in the course of which it was falsely denied that the husband had applied for an Irish visa. The asylum claims were rejected.

2 That was appealed to the Refugee Appeals Tribunal, at which stage it was accepted that the visa application had been made. The appeal being unsuccessful, the applicants then both claimed subsidiary protection but those applications were rejected, and appeals to the International Protection Appeals Tribunal were dismissed on 5th October, 2017. On 6th November, 2017 leave was granted in these two proceedings, the primary relief being certiorari of the IPAT decisions in relation to subsidiary protection.

3 I have received helpful submissions from Mr. Mark de Blacam S.C. (with 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.

The IPAT decisions

4 The well-organised decisions of the IPAT member here, Mr. Byron Wade B.L., illustrate the commendable option of considering matters on an ' even if I am wrong' basis, which I have referred to and held to be legitimate in S.I. v. Minister for Justice and Equality [2016] IEHC 112 [2016] 2 JIC 1517 (Unreported, High Court, 15th February, 2016) at para. 19. Such an approach enables a judicial review court to deal with a situation where two alternative grounds are given for a particular finding such that even if one of those grounds cannot be sustained the ultimate conclusion may survive if the alternative independent ground is held to be valid.

5 The tribunal member held that consistency of a claim with country information is necessary but not sufficient. He took a similar view in relation to consistency of medical reports with the claim being made. He held that the applicants had lied regarding the Irish visa application and given inconsistent explanations regarding that issue and regarding the husband's name change. He considered the husband's explanations at para. 5.14 of the decision in the husband's case and noted that differing explanations had been given on behalf of the husband, and as between the husband and wife. As regards the husband's explanation of how he escaped from custody, this involved what the tribunal member referred to as a ' highly improbable' story whereby the vehicle in which he was being held was stopped by protesters, the husband remarkably managed to open the door by pulling a lever despite his hands being tied, with the protesters then, coincidentally and conveniently, dragging him away to safety. This remarkably coincidental, if not cliff-hangingly filmic, story was one that the tribunal was entitled to describe as highly improbable.

6 At para. 6.8 of the decision in the husband's case the tribunal member went on to say in effect that if he was wrong about credibility, the fact that a new regime was in place in the Ukraine was a game-changer, and gave rise to a situation whereby the applicants were no longer at risk. At para. 6.13, he held that it had not been shown that impunity applied and at para. 6.14, he held that even if he was wrong about that, and if there was impunity for members of the old regime, that had not been shown to give rise to a risk to the husband. At para. 6.18, he held that without prejudice to the credibility findings, the armed conflict in Ukraine applied to a different region from which the applicants did not hail.

7 As regards a claim that harm would be caused by military service, the tribunal member held that the possibility of being subject to military service did not in and of itself constitute serious harm and said that a case of serious harm under this heading by virtue of a risk similar to that discussed in B.M. (Eritrea) v. Minister for Justice and Equality [2013] IEHC 324 (Unreported, McDermott J., 16th July, 2013) at paras. 51 to 56 had not been made out.

8 As regards the wife's claim, the tribunal member's decision was consistent with the findings in relation to the husband, although the distinguishing factors were also discussed, particularly the fact that she herself was neither targeted previously nor currently targeted by reason of political opposition to the regime. He also dealt with her claim of rape, which I will refer to later.

Allegation of no proper regard to medico-legal documentation

9 This arose in the context of an assessment of the applicant's credibility. It is established that the assessment of credibility is quintessentially a matter for the decision-maker: see S.B. v Minister for Justice and Equality [2010] IEHC 133 (Unreported, Cooke J., 25th February, 2010), C.M. (Zimbabwe) v. International Protection Appeals Tribunal [2018] IEHC 35 [2018] 1 JIC 2304 (Unreported, High Court, 23rd January, 2018), per Birmingham J. in M.E. v. Refugee Appeals Tribunal [2008] IEHC 192 at para. 27, B.D.C. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 460 at para. 11.

10 The tribunal member held that ' the utility of those medical reports is severely limited for present purposes of proving the truth of the appellant's story. At most, a medical report can only usefully show some degree of consistency or non-consistency with a story as told. It cannot directly prove or disprove the story itself, and so I am not relieved of the task of assessing the credibility of that story' (para. 5.6). That is an entirely logical...