S.H.I. v The International Protection Tribunal No.2

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 03 May 2019
• Neutral Citation: [2019] IEHC 269
• Docket Number: [2015 No. 596 J.R.]
• Court: High Court
• Date: 03 May 2019

BETWEEN

S.H.I.

APPLICANT

AND

THE INTERNATIONAL PROTECTION TRIBUNAL

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

(No. 2)

[2019] IEHC 269

Keane J.

[2015 No. 596 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Refugee status – Breach of fair procedures – Credibility – Applicant seeking judicial review – Whether the International Protection Appeals Tribunal acted in breach of fair procedures and natural and constitutional justice

Facts: The International Protection Appeals Tribunal (the IPAT), then known as the Refugee Appeals Tribunal, decided on 5 October 2015, under s. 16(2)(a) of the Refugee Act 1996, to affirm a recommendation of the Refugee Applications Commissioner that the applicant should not be declared to be a refugee. On 29 April 2016, Mac Eochaidh J gave the applicant leave to apply for certain reliefs, principally an order of certiorari quashing the IPAT decision and an order remitting the applicant’s appeal for a fresh determination before a separate member of the tribunal. In an ex tempore decision, Mac Eochaidh J granted the applicant leave to seek judicial review on a single ground: that the IPAT acted in breach of fair procedures and natural and constitutional justice, and in particular the principle audi alteram partem, by making adverse findings about the applicant’s credibility in the course of a ‘papers only’ appeal when no such finding had been made at first instance.

Held by the High Court (Keane J) that there was no basis for the applicant’s unqualified assertion that the Commissioner had accepted his general credibility. Keane J did not accept that the State’s duty to cooperate with the applicant in assembling the elements necessary to substantiate his application extended to an obligation to go behind, or ‘tease out’, the applicant’s own voluntary statements, whether provided in the context of a properly conducted interview or in writing through his legal representatives. Applying the analysis of Mac Eochaidh J in M.A. v Refugee Appeals Tribunal [2015] IEHC 528 to the facts of this case, Keane J concluded that there was no requirement on the tribunal to put its concerns about the credibility of the applicant’s statements to the applicant for his comments before reaching its decision; thus, its failure to do so did not amount to any breach of the applicant’s entitlement to natural and constitutional justice and fair procedures.

Keane J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr Justice David Keane delivered on the 3rd May 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 5 October 2015 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 refugees (‘the IPAT decision’).

2 On 29 April 2016, Mac Eochaidh J gave the applicant leave to apply for certain reliefs, principally an order of certiorari quashing the IPAT decision and an order remitting the applicant's appeal for a fresh determination before a separate member of the tribunal.

3 In an ex tempore decision, sub nom. S.H.I. v Refugee Appeals Tribunal and Minister for Justice and Equality [2016] IEHC 218, Mac Eochaidh J granted the applicant leave to seek judicial review on a single ground. It is that the IPAT acted in breach of fair procedures and natural and constitutional justice, and in particular the principle audi alteram partem, by making adverse findings about the applicant's credibility in the course of a “papers only” appeal when no such finding had been made at first instance.

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 31 December 2016, the former was substituted for the latter in these proceedings by operation of law.

Background

5 The applicant is a 43-year-old South African national of South Asian ethnicity who applied for asylum in the State upon his arrival at Dublin Airport from South Africa (via Dubai) on 16 January 2014, claiming a well-founded fear of persecution in that country on grounds of race. The applicant was first interviewed by an immigration officer, in accordance with the requirements of s. 8 of the Refugee Act, upon his arrival at Dublin Airport.

6 Having completed the necessary questionnaire for the Office of the Refugee Applications Commissioner (“ORAC”), he was then interviewed by an authorised officer of the Commissioner, pursuant to s. 11 of the Refugee Act, on 30 January 2014.

7 The Commissioner wrote to the applicant on 7 February 2014, enclosing a report, dated 31 January 2014, pursuant to s. 13 of the Refugee Act, recommending that he should not be declared to be a refugee on the basis that state protection was available to him in South Africa through internal relocation. The report included a finding that the applicant is a national of South Africa, a designated safe country of origin under s. 12(4) of the Refugee Act, bringing his claim within the scope of the s. 13(5) “papers only” appeal procedure by operation of s. 13(6)(e) of that Act. The Republic of South Africa was designated a safe country of origin by operation of the Refugee Act 1996 (Safe Countries of Origin) Order 2004 ( S.I. No. 714 of 2004).

8 Through his legal representatives, the applicant submitted a notice of appeal, dated 20 February 2014; written grounds of appeal, dated 3 March 2014; a written statement of the applicant of the same date; and final written submissions, dated 31 August 2015.

Relevant Aspects of the Applicant's Refugee Status Claim

9 The note of the s. 8 interview, signed by the applicant on 17 January 2014, records that he gave the following reasons for seeking asylum:

“That he was employed by a company called Bondi Distribution as a truck driver, he was the only Indian truck driver at this company.

After the death of Nelson Mandela, he started to get [harassed] by fellow workers and told to leave the company and the country as Indians were no longer welcome in South Africa. The applicant did not report this as he felt that he could handle it.

Later, when he was on a delivery job, he hired an outside person to assist him. The applicant states that he was allowed by the men who stole his money and phone and told him that, if he was seen again, he would be killed. The applicant thinks that his helper set him up to be hijacked.

The applicant reported this to the police and got a case number but there has been no progress in the investigation, so the applicant decided to leave South Africa for his own safety.

The applicant fears for his safety if he was to return to South Africa.”

10 The undated and unsigned ORAC questionnaire that the applicant completed between his s. 8 and s. 11 interviews, contains the following passage (in which I have corrected the spelling, though not the grammar):

“I was happy in my country only Nelson Mandela died after every thing's going wrong. Black persons don't like other community and they attack me and want to kill me until I leave the country. That's why I save my life to come here.”

11 The authorised officer's handwritten note of the s. 11 interview of 30 January 2014, countersigned by the applicant, states in material part:

“Q.55. What exactly do you fear will happen to you if you were to return to South Africa?

My life is not safe there. I may be killed or badly beaten.

Q. 56. Who exactly do you fear will do this to you?

South African people who are xenophobic.

Q. 57. When exactly did your problems in South Africa begin?

It's all the time, but after Nelson Mandela passed away it is too much.

Q. 58. Okay, but when did the first incident occur which caused you to fear for your safety in South Africa?

On 30 December 2013.

Q. 59. What happened that day?

The company I worked in is called Bondi Distribution. I was their one Indian truck driver. After Mandela's death, the other truck drivers and workers were saying to me ‘Mandela is dead, maybe it is time for your people to go home and leave our country.’ I thought they were joking at first. One day, I was doing a delivery and my boss allowed me to bring an assistant to help me. When I loaded the truck and was ready to go, I asked some of the black guys if there was someone to come with me as an assistant. They gave me directions to a place, a corner where people looking for work stand and wait. When I got there, I picked up a guy, we agreed on pay and then we set off. We did the deliveries and collected payments from customers. I had a last delivery to finish and after that I had around 10, 000 or 11,000 rand on me. I asked the guy where I could drop him off. He told me to take him to a garage near where I picked him up. I paid him 100 rand and took him to the garage. When we got there, he said just to drive a little further. Then he directed me to pull over where there were 2 guys. He said he was going to go with them. When I stopped, those 2 guys came to the truck with guns. They got in, told to drive to wherever they told me. They took all the money, my phone and they beat me. They smashed my face. They said they will kill me if they see me there again. They said, Mandela is dead, they don't want me in South Africa anymore.

Q.60. Did you report this attack to the police?

Yes, after I went to the police station in Silvertown. I told them my story.

Q. 61. What did the police say or do?

The opened an investigation into the case. I didn't get any answer or call from them.

Q. 62. So, did this attack take place in Pretoria?

Yes.

Q. 63. These guys with the guns, whereabouts in Pretoria were you when they got into the truck?

Silvertown. Then they took me and my...