Z.A. v The International Protection Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Heslin |
| Judgment Date | 08 April 2022 |
| Neutral Citation | [2022] IEHC 280 |
| Court | High Court |
| Docket Number | [Record No. 2020/1026JR] |
In the Matter of Section 5 of the Illegal Immigrants (Trafficking Act) 2000 (As Amended)
and
In the Matter of the International Protection Act 2015
[2022] IEHC 280
[Record No. 2020/1026JR]
THE HIGH COURT
JUDICAL REVIEW
Judicial review – International protection – Credibility – Applicant seeking an order of certiorari quashing the decision of the first respondent made under s. 46 of the International Protection Act 2015 – Whether the applicant’s general credibility was established
Facts: The applicant, a national of Pakistan, applied to the High Court seeking an order of certiorari quashing the decision of the first respondent, the International Protection Appeals Tribunal (the Tribunal), dated 20 October, 2020 (the Decision) made under s. 46 of the International Protection Act 2015 and communicated to the applicant by letter dated 22 October, 2020. On behalf of the applicant, four issues were identified in the following terms: (1) whether the Tribunal erred in law at paras. [4.19] and [4.20] of the Decision insofar as it rejected the material element of the applicant’s claim to be a bisexual who had relationships which led to his arrest and detention by impermissibly and/or irrationally relying on the applicant’s delay in seeking international protection in breach of the legislative scheme set out in s. 28 of the 2015 Act and/or Article 4 of the Qualification Directive 2011/95/EU; (2) whether, in the alternative, the Tribunal erred in law insofar as it acted irrationally and/or disproportionately at para. [4.6] of the Decision when considering the applicant’s explanation for this delay to be one which “seriously undermines his credibility” and that his “entire claim must be assessed from that point of view”; (3) whether the Tribunal erred in law at paras. [4.19] and [4.20] insofar as it rejected the material element of the applicant’s claim to be a bisexual man who had relationships which led to his arrest and detention, by irrationally and/or in breach of fair procedures, by determining that material submitted cannot be relied on as their provenance has not been established on the balance of probabilities; (4) whether the Tribunal erred in law at paras. [4.19] and [4.20] insofar as it rejected the material element of the applicant’s claim to be a bisexual man who had relationships which led to his arrest and detention, by irrationally rejecting the passage of time as a tenable basis for the applicant being vague and/or vague and evasive in respect of his past relationships on the premise that the applicant could have applied in the UK when matters were fresh in his mind.
Held by Heslin J that the Tribunal made a lawful assessment of the credibility of the applicant’s narrative; it reached adverse credibility findings and did so on a rational, logical and lawful basis, providing reasons for the views it formed. Heslin J held that the applicant’s credibility was not established; the Tribunal was tasked with analysing the evidence and coming to a view, and it did so lawfully. Heslin J noted that the Tribunal found that the appellant gave a narrative of his past relationships which was not credible; that narrative concerning his past relationships was the basis of his whole claim. Heslin J held that the applicant’s general credibility was not established and the answer to all four questions posed by the applicant was in the negative.
Heslin J held that the applicant was not entitled to any relief and his application must be dismissed.
Application refused.
JUDGMENT of Mr. Justice Heslin delivered on the 8th day of April 2022
The primary relief sought in these proceedings is an order of certiorari quashing the decision of the International Protection Appeals Tribunal (hereinafter the ‘Tribunal’) dated 20 October, 2020 (hereinafter ‘the Decision’) made under s.46 of the International Protection Act 2015 (‘the 2015 Act’) and communicated to the Applicant by letter dated 22 October, 2020.
The hearing proceeded on the basis of the Applicant's Amended Statement of Grounds dated 18 January, 2021. The Applicant swore a grounding affidavit which is dated 17 December, 2020 and his solicitor swore an affidavit on 5 January, 2021 with regard to compliance with Practice Direction HC81. The Respondents' Statement of Opposition is dated 5 March, 2021. I have carefully considered the contents of all the foregoing.
I want to express my thanks to Mr. Moroney BL for the Applicant and to Ms. Dempsey BL for the Respondent, both of whom provided the court with detailed written submissions which they supplemented by means of skilled oral submissions during the hearing. I have carefully considered all submissions, written and oral, in addition to the authorities to which this Court's attention was directed and will refer to the principal submissions in the course of this judgment.
On behalf of the Applicant, four issues were identified in the following terms:
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(1) Whether the Tribunal erred in law at paras. [4.19] and [4.20] of the Decision insofar as it rejected the material element of the Applicant's claim to be a bisexual who had relationships which led to his arrest and detention by impermissibly and/or irrationally relying on the Applicant's delay in seeking international protection in breach of the legislative scheme set out in s.28 of the 2015 Act and/or Article 4 of the Qualification Directive 2011/95/EU (‘QD’);
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(2) Whether, in the alternative, the Tribunal erred in law insofar as it acted irrationally and/or disproportionately at para. [4.6] of the Decision when considering the Applicant's explanation for this delay to be one which “seriously undermines his credibility” and that his “entire claim must be assessed from that point of view”;
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(3) Whether the Tribunal erred in law at paras. [4.19] and [4.20] insofar as it rejected the material element of the Applicant's claim to be a bisexual man who had relationships which led to his arrest and detention, by irrationally and/or in breach of fair procedures, by determining that material submitted cannot be relied on as their provenance has not been established on the balance of probabilities;
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(4) Whether the Tribunal erred in law at paras. [4.19] and [4.20] insofar as it rejected the material element of the Applicant's claim to be a bisexual man who had relationships which led to his arrest and detention, by irrationally rejecting the passage of time as a tenable basis for the Applicant being vague and/or vague and evasive in respect of his past relationships on the premise that the Applicant could have applied in the UK when matters were fresh in his mind?
The Applicant is a male aged 34. He is a national of Pakistan. He is a single man without issue. He has made a claim for international protection on the basis that he is bisexual and fears that if he is returned to Pakistan he would face persecution and/or a real risk of suffering serious harm by reason of his sexual orientation. The Applicant claims that he was caught on three occasions engaging in sexual relations with other men and that after the third incident, when threatened with being reported to the police, he left college in Pakistan, travelling to the UK on a student permission.
The Applicant has had fifteen years of formal education. His parents, three sisters and a brother all currently reside in Pakistan. The Applicant left that country on 14 January, 2011 and lived in the UK on a study visa from 14 January, 2011 until February 2014. Thereafter, he continued to reside illegally in the UK from February 2014, until September 2016. The Applicant did not seek international protection in the UK where he studied and worked.
The Applicant arrived in this State on 15 September, 2016. Following his arrival in this State the Applicant did not seek international protection. The Applicant made a ‘fake’ ID. This came to the attention of An Garda Síochána. He was arrested and released on bail. His criminal case concluded in April 2018 and he was released on probation.
He first made an application for international protection on 28th June, 2018. After an initial interview at the International Protection Office (‘IPO’), the Applicant completed an application for International Protection Questionnaire on 7 August, 2018. The Applicant was further interviewed pursuant to s.35 of the 2015 Act on 13 August, 2019 with the assistance of an interpreter.
As regards the Applicant's familiarity with the English language, he avers at para. 11 of his 17 December, 2020 affidavit that “whilst I availed of the assistance of an interpreter in the course of my application, I have sufficient command of the English language for the purpose of swearing this affidavit.” By letter dated 26 November, 2019 the IPO recommended that the Applicant should be given neither a refugee declaration nor a subsidiary declaration. The relevant decision pursuant to s.39 of the 2015 Act is dated 26 November, 2019.
The Applicant lodged an appeal with the Tribunal on 16 December, 2019 and his appeal came on for hearing on 5 October, 2020. The Applicant, through his solicitors, provided an additional document to the Tribunal by email on 6 October 2020, which was acknowledged the following day. The Tribunal's decision of 20 October, 2020 was communicated to the Applicant by letter dated 22 October, 2020, received on 23 October, 2020. The decision affirmed the recommendation that the Applicant should be given neither a refugee declaration, nor a subsidiary protection declaration. During the hearing, no issue was taken by the Respondents with regard to any delay in seeking and obtaining leave to seek judicial review.
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