T.S.S. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 29 July 2016
• Neutral Citation: [2016] IEHC 491
• Court: High Court
• Docket Number: [2015 No. 396 J.R.]
• Date: 29 July 2016

[2016] IEHC 491

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2015 No. 396 J.R.]

BETWEEN

T.S.S.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (CONSTITUTED OF CONOR GALLAGHER)

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

Asylum, Immigration & Nationality – Refusal of asylum and subsidiary protection – Internal relocation – General condition that prevailed in country – Art. 8(2) of the Council Directive 2004/83/EC – Presumption of risk of harm sponsored by national authorities – Certiorari.

Facts: Following the refusal of the asylum application and the subsidiary protection application by the first named respondent, on ground that there had been no fear or risk of serious harm to the applicant, the applicant now filed for judicial review to quash the decision of the first named respondent. The respondent contended that the availability of internal relocation would be ground free from any other finding on which the application for asylum and subsidiary protection had been rightly rejected. The applicant contended that the incorrect finding of lack of serious harm contaminated the decision regarding the internal relocation.

Mr. Justice Richard Humphreys granted an order of certiorari to the applicant and quashed the decision of the first named respondent that refused subsidiary protection to the applicant and further remitted the matter to the first named respondent for reconsideration. The Court held that the decision on internal relocation would be a valid order as it had been made with a motive to provide for a safe place to the applicant and it would be independent of the finding whether there existed any risk of serious harm to the applicant in the home area. The Court, however, found that in case internal relocation had been proposed, the general circumstances prevailing in the country must be considered, as there existed a presumption of risk of serious harm that emanated from authorities sponsored by the national or state government or the military forces. The Court held that in case of proposed inter relocation, it must be identified whether there existed risk of future harm from state factors or non-state factors and if the harm emanated from the state factors, it was to be presumed that risk would exist throughout the country. The Court held that in any case the first named respondent had been under obligation to satisfy that there existed no risk of serious harm sponsored by national authorities to the applicant from at the place proposed for relocation.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 29th day of July, 2016

1 The applicant was born in Zimbabwe in 1987. He was the victim of a kidnapping and beatings by government supporters in the Misulongo area.

2 He came to the State in June, 2008, and applied for asylum. This was refused by the Refugee Applications Commissioner on 20th October, 2008. He appealed to the Refugee Appeals Tribunal, which refused the appeal on 12th October, 2009.

3 He then applied for subsidiary protection, which was refused by the commissioner on 24th February, 2014. This was appealed to the tribunal, which in a decision issued by tribunal member Conor Gallagher B.L., refused the application on 20th May, 2015.

4 The essentials of that decision were that:

(a) the applicant's credibility was accepted;

(b) it was considered that there was no sufficient forward-looking risk of serious harm;

(c) internal relocation to Bulawayo was available;

(d) state protection did not need to be considered; and

(e) there were no compelling reasons arising from past serious harm such as to warrant the grant of subsidiary protection.

5 It is agreed between Ms. Sunniva McDonagh S.C. (with Mr. John Noonan B.L., who also addressed the court) for the applicant, and Ms. Silvia Martinez B.L. for the respondent, that s. 5 of the Illegal Immigrants (Trafficking) Act 2000, does not apply to the application, and that the limitation period is therefore three months. The application was made within time.

6 Leave was granted for the application by Mac Eochaidh J. on 13th July, 2015,.

7 Ms. Martinez is not standing over the finding of no risk of serious harm. However she submits, in the course of a very able submission for the respondents, that because the tribunal found that internal relocation was available, that constitutes a free-standing ground on which the application was properly refused.

Was the decision maker entitled to give independent grounds for refusal?

8 While it is true that in K.D. (Nigeria) v. Refugee Appeals Tribunal [2013] I.R. 448, Clark J. was of the opinion that the Tribunal should not go on to consider internal relocation unless it had made a positive finding of a risk of persecution or serious harm, I have held in M.N. v Refugee Appeals Tribunal [2015] IEHC 831 (Unreported, High Court, 21st December, 2015) (see para. 31), and again in S.I. v. Minister for Justice and Equality [2016] IEHC 112 (Unreported, High Court, 15th February, 2016) at para. 19 that I did not consider it such an approach be correct (see A.M.G. (Pakistan) v. Refugee Applications Commissioner [2014] IEHC 379 (Unreported, High Court, Barr J., 25th July, 2014, E.I. v. Minister for Justice and Equality [2014] IEHC 27 (Unreported, High Court, Mac Eochaidh J., 30th January, 2014); A.N. v Refugee Appeals Tribunal [2015] IEHC 699 (Unreported, High Court, Faherty J., 16th October, 2015). A decision maker is entitled to give independent grounds for refusal of a claim.

9 The consequence of that is that the applicant must knock both legs of the decision, namely risk of serious harm and availability of internal relocation, if he is to succeed, with the important qualification that both legs of the decision must be genuinely freestanding. If an error in one part of the decision contaminates the decision overall, then the result cannot stand (see, for example, para. 41 of my decision in I.E. v. Minister for Justice and Equality [2016] IEHC 85 (Unreported, High Court, 15th February, 2016)).

Is the applicant entitled to complain about the finding of internal relocation to Bulawayo where he did not take issue with this in the notice of appeal to the Tribunal?

10 Ms. Martinez submits that the notice of appeal does not specifically challenge Bulawayo as a safe location, and therefore the applicant is disentitled from raising this as an issue in the judicial review. She relies on the decision of Charlton J. in M.A.R.A. v. Minister for Justice and Equality [2014] IESC 71 (Unreported, Supreme Court, 12th December, 2014) at para. 15, where reference is made to the procedure whereby the notice of appeal to the tribunal sets out the matters of fact or law ' in respect of which he or she disputes the earlier decision', and that matters in respect of which issue is not taken will remain undisturbed on appeal.

11 While there is no issue with this general proposition, undue formality should not be required in a human rights context such as an asylum or subsidiary...