S.A. (Ghana and South Africa) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 01 February 2018
• Neutral Citation: [2018] IEHC 97
• Docket Number: [2017 No. 578 J.R.]
• Court: High Court
• Date: 01 February 2018

BETWEEN

S.A. (GHANA AND SOUTH AFRICA)

APPLICANT

AND

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

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2018] IEHC 97

Humphreys J.

[2017 No. 578 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Certiorari – Denial of refugee status – Subsidiary protection – Adverse credibility findings – Validity of decision – Dismissal

Facts: The applicant sought an order of certiorari for quashing the decision of the first respondent for affirming the rejection of the subsidiary protection claim of the applicant. The applicant argued that the manner in which the first respondent had made adverse credibility findings against the applicant was irrational. The applicant also argued that the first respondent had a duty to consider the applicant's exposure to future harm in the light of his ethnicity and/or nationality.

Mr. Justice Richard Humphreys dismissed the applicant's application. The Court held that the applicant had failed to provide supportive evidence with regard to his credibility. The Court noted that the applicant had the duty to consider the risk of future harm based on his ethnicity; however, there was no evidence that the applicant would suffer real risk or harm by virtue of his nationality. The Court further noted that where the decision-maker claimed that it had considered all the material, the onus was on the applicant to show that such material was not considered.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 1st day of February, 2018

1 The applicant was born in Ghana in 1972. He claimed persecution and moved to South Africa in 1999, where he married a South African national. She died in 2003. He became a South African citizen on 9th September, 2004. The applicant claimed that his wife's family threatened him and that he was attacked in early 2008 and again in May, 2008, when his leg was broken. He says he reported this to the police and that no action was taken.

2 He entered into a new relationship and travelled with the same girlfriend to Ireland on holiday in February, 2009. He claims his wife's family were very unhappy about the relationship and the girlfriend broke off that relationship as a result. He claims that a mob was led to him in January, 2012, but he managed to run away. He fled South Africa on 6th February, 2012, arriving in Ireland on 7th February, 2012. He applied for asylum on 11th September, 2013, nineteen months after his arrival.

3 His asylum claim was rejected by the Refugee Applications Commissioner. An appeal to the Refugee Appeals Tribunal was also rejected. He applied for subsidiary protection on 16th January, 2015. That was refused by the commissioner on 3rd December, 2015. On 16th December, 2015, he appealed to the tribunal.

4 A hearing took place on 21st April, 2017, after considerable difficulties with an interpreter, although the applicant had previously furnished information in English without difficulty. Ms. Lisa McKeogh B.L. appeared for the applicant at that hearing. On 26th May, 2017, the International Protection Appeals Tribunal affirmed the rejection of his subsidiary protection claim in an eighteen page decision by Mr. Mark Byrne.

5 On 29th May, 2017, that decision was notified to the applicant. On 24th July, 2017, leave for the present proceedings was granted by O'Regan J. A statement of opposition was filed on 10th November, 2017.

6 I have received helpful submissions from Mr. Gary O'Halloran B.L. for the applicant and Mr. Tim O'Connor B.L. for the respondents.

Relief sought

7 The substantive relief sought is an order of certiorari of the IPAT decision refusing subsidiary protection. The written legal submissions identify seven issues, which I will deal with in turn.

The first issue

8 The first issue identified by the applicant is ' whether the IPAT has an entitlement to reject the entirety of the claim in respect of Ghana by reason of credibility findings in respect of events in South Africa'. The factual premise of this question is incorrect because the tribunal did not reject the entirety of the claim in respect of Ghana by reason of credibility findings, in respect of events in South Africa. It held that the Ghanaian story was not supported by documentary evidence and that the applicant was not entitled to the benefit of the doubt having regard to his incredible account of events in South Africa. To take the question posed by the applicant more broadly, even though it does not arise on the premise suggested, if an applicant gives incredible testimony on any matter it is open to a decision-maker to draw inferences of a lack of credibility generally. Reliance is placed by the applicant on Meadows v. Minister Justice, Equality and Law Reform [2010] IESC 3 [2010] 2 I.R. 701, but here the rationale for the decision clearly was set out.

The second issue

9 The second issue is ' whether the decision of IPAT in respect of South Africa can survive in circumstances where the decision (a) contains findings which were arrived at unfairly and/or were erroneous and/or irrational and (b) the decision was cumulative and the Tribunal failed to specify at para. 5. 21 the weight to be attached to the elements of that decision'.

10 This question embodies a considerable number of sub-propositions. Firstly, the applicant has not demonstrated that the tribunal's findings were arrived at unfairly. Secondly, it is not the role of judicial review to determine whether a decision-maker's findings were erroneous as such. This is not a rehearing on the merits. Thirdly, the applicant has not demonstrated that the findings were irrational. Finally, where a decision is cumulative the decision-maker is not required to specify the weight to be attached to each and every individual element of that decision. No such legal obligation exists. High Court judges do not do this when giving judgment and it would be an exercise in arrogance for me to invalidate a tribunal decision for failing to do something that I would not even attempt to do myself. Indeed, such an exercise is virtually impossible to do if there are a number of elements to be considered. That is the position I took in B.W. v. Refugee Appeals Tribunal [2015] IEHC 759 [2015] 11 JIC 2708 (Unreported, High Court, 17th November, 2015) paras. 52-56, and while the Court of Appeal arrived at a different result in terms of the order to be made, the approach I took to the specific issue we are now talking about seems consistent with the way in which the judgment of Peart J. in the Court of Appeal approached the question of cumulative reasoning (see B.W. v. Refugee Appeals Tribunal [2017] IECA 296 ( Unreported, 15th November, 2017), for example para. 70 where there is no suggestion that there is any obligation to specify the weight of each factor).

The third issue

11 The third issue is ' whether the IPAT are entitled to ignore guidelines relating to the assessment of credibility produced by the UNHCR and IPAT itself when summarily rejecting explanations for inconsistencies given by the applicant'.

12 First of all, the factual premise for this issue does not arise. The guidelines may not have been referred to but there is no evidence that they were ' ignored'. Mr. O'Halloran relies on O.N. v. Refugee Appeals Tribunal [2017] IEHC 13 (Unreported, High Court, 17th January, 2017), but that is not a case that finds that the tribunal is required to follow UNHCR guidelines. O'Regan J. at para. 36 does no more than follow the decision of the Supreme...