W.H. v The International Protection Tribunal

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 09 May 2019
• Neutral Citation: [2019] IEHC 297
• Court: High Court
• Docket Number: [2015 No. 232 J.R.]
• Date: 09 May 2019

BETWEEN

W.H.

APPLICANT

AND

THE INTERNATIONAL PROTECTION TRIBUNAL

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

[2019] IEHC 297

[2015 No. 232 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Refugee status – Order of certiorari – Standard of proof – Applicant seeking refugee status – Whether the respondent failed to apply the correct standard of proof

Facts: The International Protection Appeals Tribunal (the IPAT), then known as the Refugee Appeals Tribunal, in a decision made under s. 16(2)(a) of the Refugee Act 1996 dated 15 April 2015, affirmed a recommendation of the Refugee Applications Commissioner that the applicant should not be declared to be a refugee. On 11 May 2015, Mac Eochaidh J gave the applicant leave to apply for various reliefs, principal among which was an order of certiorari quashing the IPAT decision. In the applicant’s written legal submissions, dated 18 April 2016, the grounds of invalidity of the IPAT decision were as follows: (i) the tribunal failed to apply the correct standard of proof; (ii) the tribunal erred in law in the manner in which it assessed the applicant’s sexuality; (iii) the tribunal erred in law by incorrectly applying relevant United Nations High Commissioner for Refugees (UNHCR) guidelines; and (iv) the tribunal erred in law or acted in breach of the applicant’s entitlement to fair procedures in the manner in which it made adverse credibility findings against the applicant. The third section of the applicant’s written legal submissions did not deal with the requirements of any UNHCR Guidelines but, rather, with the applicable legal principles governing the assessment of the credibility of the statements made by refugee status applicants.

Held by the High Court (Keane J) that it rejected the applicant’s argument on the standard of proof, applying the decision of O'Regan J in O.N. v Refugee Appeals Tribunal [2017] IEHC 13. Keane J rejected the applicant’s argument that the tribunal erred in its assessment of the applicant’s sexual orientation, referring to principles set out in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (1979, reissued in 2011). Keane J was unable to identify any invalid reasons in the credibility assessment (or any other) section of the IPAT decision. Keane J held that in neither instance to which the applicant referred did the tribunal rely on the omission of an important detail in his Office of the Refugee Applications Commissioner (ORAC) questionnaire as providing in itself the basis of an adverse credibility finding. Keane J was satisfied that there was no failure to accord to the applicant his entitlement to natural and constitutional justice and fair procedures, applying principles in P.S. v Refugee Applications Commissioner [2008] IEHC 235 and B.N.N. v Refugee Applications Commissioner [2008] IEHC 308.

Keane J held that the application would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 9th 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 15 April 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 first applicant should not be declared to be a refugee (“the IPAT decision”).

2 On 11 May 2015, Mac Eochaidh J gave the applicants leave to apply for various reliefs, principal among which is an order of certiorari quashing the IPAT decision.

3 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

4 The applicant is a Nigerian man, born in 1985.

5 The applicant presented himself to the immigration authorities in Dublin on 24 September 2013, having claimed to have arrived in the State, via Cameroon and Northern Ireland, on 22 September 2013.

6 In essence, the applicant claims to have a well-founded fear of persecution on the ground of his sexual orientation if returned to Nigeria, because he is homosexual and same-sex conduct, same-sex unions, displays of affection between same-sex couples and gay rights activism are all criminalised in Nigeria as offences that may be penalised by a prison sentence of up to 14 years.

7 The applicant was interviewed by an immigration officer in accordance with the requirements of s. 8 of the Refugee Act on 24 September 2013 and completed an asylum application (“ASY-1”) form on that date.

8 Having completed the necessary questionnaire for the Office of the Refugee Applications Commissioner (“ORAC”) on 2 October 2013, the applicant was then interviewed by an authorised officer of the Commissioner, pursuant to s. 11 of the Refugee Act, on 3 December 2013 and 14 January 2014.

9 ORAC wrote to the applicant on 19 February 2014, enclosing a report and recommendation, dated 29 January 2014, pursuant to s. 13 of the Refugee Act, recommending that the applicant should not be declared to be a refugee on the basis that the applicant had failed to establish a well-founded fear of persecution if returned to Nigeria, essentially because he failed to establish the credibility of his own unsupported statements upon which the subjective element of his asserted fear of persecution was based.

10 Through his legal representatives, the applicant submitted a notice of appeal, dated 7 March 2014, against the recommendation of the Commissioner. It was followed by grounds of appeal and accompanying legal submissions, dated 11 March 2014. A medico-legal report, dated 6 May 2014, from a psychiatrist attached to the Spirasi Centre for the Care of Survivors of Torture was later submitted, as were further extensive legal submissions, dated 2 March 2015.

11 An oral hearing of the applicant's appeal took place before the tribunal on 3 March 2015.

12 The IPAT decision is dated 15 April 2015 and was furnished to the applicant under cover of a letter, dated the following day. It concludes that the applicant had failed to establish that he would be at risk of persecution if returned to Nigeria, once again because he had failed to establish the credibility of his own unsupported statements upon which the subjective element of his asserted fear of persecution was based.

Procedural history

13 The applicant sought, and was granted, leave to bring these proceedings on 11 May 2015, based on a statement of grounds, dated 7 May 2015, grounded on an affidavit of the applicant, sworn on the same day. The Minister filed a statement of opposition, joining issue with the applicant on each of the grounds raised, on 21 March 2016.

Grounds of challenge

14 In his statement of grounds, the applicant enumerates three separate grounds of invalidity of the IPAT decision: first, that it contains nine separate enumerated errors of law; second, that it was reached in breach of the applicant's entitlement to natural and constitutional justice in at least six different ways; and third, that its conclusions were irrational or unreasonable.

15 However, in the applicant's written legal submissions, dated 18 April 2016, those grounds are summarised as follows:

(i) The tribunal failed to apply the correct standard of proof.

(ii) The tribunal erred in law in the manner in which it assessed the applicant's sexuality.

(iii) The tribunal erred in law by incorrectly applying relevant UNHCR guidelines.

(iv) The tribunal erred in law or acted in breach of the applicant's entitlement to fair procedures in the manner in which it made adverse credibility findings against the applicant.

16 Confusingly, the third section of the applicant's written legal submission does not deal with the requirements of any UNHCR Guidelines but, rather, with the applicable legal principles governing the assessment of the credibility of the statements made by refugee status applicants.

Analysis

i. the standard of proof

17 The applicant contends that, in determining the material facts on the balance of probabilities, the tribunal applied the wrong standard of proof. After the applicant's written legal submissions were filed but before the hearing of these proceedings, that point was conclusively determined against the applicant's contention by O'Regan J in O.N. v Refugee Appeals Tribunal [2017] IEHC 13 (Unreported, High Court, 17th January, 2017) in these terms (at para. 63):

“In light of the foregoing principles and having regard to the fact that the balance of probabilities is the civil standard of proof in this jurisdiction, I am satisfied that the principle of equivalence and the principle of effectiveness are both safeguarded by the application of the standard of proof – being the balance of probabilities – coupled with, where appropriate, the benefit of the doubt. Until such time as this State might introduce more favourable standards as contemplated by Article 3 of [Council Directive 2004/83/EC], this is the appropriate standard to apply, i.e. the balance of probabilities, coupled with, where appropriate, the benefit of the doubt.”

18 That development prompted the applicant to file supplemental legal submissions, dated 15 February 2017, inviting me to reject O.N. as wrongly decided and to adopt instead the approach to the overall assessment of the risk of future persecution articulated by the England and Wales Court of Appeal in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449, which – it was submitted - had previously been approved by this Court in the cases of Da Silveira v Refugee Appeals Tribunal [2004] IEHC 436, (Unreported, High Court (Peart J),...