Appeal to Tribunal

Cases

R.S. (Ukraine) v The International Protection Appeals Tribunal & ors;

I.H. (Ukraine) v The International Protection Appeals Tribunal & ors [2018] IEHC 512 (21 September 2018)
Judgment
Title:
R.S. (Ukraine) v The International Protection Appeals Tribunal & ors; I.H. (Ukraine) v The International Protection Appeals Tribunal & ors
Neutral Citation:
[2018] IEHC 512
High Court Record Number :
2017 No. 835 JR; 2017 No. 834 JR
Date of Delivery:
17/09/2018
Court:
High Court
Judgment by:
Humphreys J.
Status:
Approved
[2018] IEHC 512
THE HIGH COURT
JUDICIAL REVIEW
[2017 No. 835 J.R.]
BETWEEN
R.S (UKRAINE)
APPLICANT
AND
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
[2017 No. 834 J.R.]
BETWEEN
I.H. (UKRAINE)
APPLICANT
AND
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 17th day of September, 2018
1. These two applications relate to a husband and wife from the Ukraine. In 2012 the husband applied for an Irish visa under an alternative name. That was refused. In December, 2013 and January, 2014 the husband claims that he was arrested, detained and ill-treated due to involvement in protests in the Ukraine. In February, 2014 the wife claims that soldiers visited the house, warned against involvement in protests and raped her. The applicants came to the State and claimed asylum, in the course of which it was falsely denied that the husband had applied for an Irish visa. The asylum claims were rejected.

2. That was appealed to the Refugee Appeals Tribunal, at which stage it was accepted that the visa application had been made. The appeal being unsuccessful, the applicants then both claimed subsidiary protection but those applications were rejected, and appeals to the International Protection Appeals Tribunal were dismissed on 5th October, 2017. On 6th November, 2017 leave was granted in these two proceedings, the primary relief being certiorari of the IPAT decisions in relation to subsidiary protection.

3. I have received helpful submissions from Mr. Mark de Blacam S.C. (with Mr. Eamonn Dornan B.L.) for the applicants, from Mr. Peter Leonard B.L. for the respondents in the husband’s case and from Mr. Alexander Caffrey B.L. for the respondents in the wife’s case.
The IPAT decisions
4. The well-organised decisions of the IPAT member here, Mr. Byron Wade B.L., illustrate the commendable option of considering matters on an ” even if I am wrong ” basis, which I have referred to and held to be legitimate in S.I. v. Minister for Justice and Equality [2016] IEHC 112 [2016] 2 JIC 1517 (Unreported, High Court, 15th February, 2016) at para. 19. Such an approach enables a judicial review court to deal with a situation where two alternative grounds are given for a particular finding such that even if one of those grounds cannot be sustained the ultimate conclusion may survive if the alternative independent ground is held to be valid.

5. The tribunal member held that consistency of a claim with country information is necessary but not sufficient. He took a similar view in relation to consistency of medical reports with the claim being made. He held that the applicants had lied regarding the Irish visa application and given inconsistent explanations regarding that issue and regarding the husband’s name change. He considered the husband’s explanations at para. 5.14 of the decision in the husband’s case and noted that differing explanations had been given on behalf of the husband, and as between the husband and wife. As regards the husband’s explanation of how he escaped from custody, this involved what the tribunal member referred to as a ” highly improbable ” story whereby the vehicle in which he was being held was stopped by protesters, the husband remarkably managed to open the door by pulling a lever despite his hands being tied, with the protesters then, coincidentally and conveniently, dragging him away to safety. This remarkably coincidental, if not cliff-hangingly filmic, story was one that the tribunal was entitled to describe as highly improbable.

6. At para. 6.8 of the decision in the husband’s case the tribunal member went on to say in effect that if he was wrong about credibility, the fact that a new regime was in place in the Ukraine was a game-changer, and gave rise to a situation whereby the applicants were no longer at risk. At para. 6.13, he held that it had not been shown that impunity applied and at para. 6.14, he held that even if he was wrong about that, and if there was impunity for members of the old regime, that had not been shown to give rise to a risk to the husband. At para. 6.18, he held that without prejudice to the credibility findings, the armed conflict in Ukraine applied to a different region from which the applicants did not hail.

7. As regards a claim that harm would be caused by military service, the tribunal member held that the possibility of being subject to military service did not in and of itself constitute serious harm and said that a case of serious harm under this heading by virtue of a risk similar to that discussed in B.M. (Eritrea) v. Minister for Justice and Equality [2013] IEHC 324 (Unreported, McDermott J., 16th July, 2013) at paras. 51 to 56 had not been made out.

8. As regards the wife’s claim, the tribunal member’s decision was consistent with the findings in relation to the husband, although the distinguishing factors were also discussed, particularly the fact that she herself was neither targeted previously nor currently targeted by reason of political opposition to the regime. He also dealt with her claim of rape, which I will refer to later.
Allegation of no proper regard to medico-legal documentation
9. This arose in the context of an assessment of the applicant’s credibility. It is established that the assessment of credibility is quintessentially a matter for the decision-maker: see S.B. v Minister for Justice and Equality [2010] IEHC 133 (Unreported, Cooke J., 25th February, 2010), C.M. (Zimbabwe) v. International Protection Appeals Tribunal [2018] IEHC 35 [2018] 1 JIC 2304 (Unreported, High Court, 23rd January, 2018), per Birmingham J. in M.E. v. Refugee Appeals Tribunal [2008] IEHC 192 at para. 27, B.D.C. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 460 at para. 11.

10. The tribunal member held that ” the utility of those medical reports is severely limited for present purposes of proving the truth of the appellant’s story. At most, a medical report can only usefully show some degree of consistency or non-consistency with a story as told. It cannot directly prove or disprove the story itself, and so I am not relieved of the task of assessing the credibility of that story ” (para. 5.6). That is an entirely logical approach. Consistent medical information does not in itself demonstrate the truth of an account, although it can be supportive of such an account. There is of course an obligation to consider medical information but that was done here. The applicants rely on caselaw to the effect that reasons should be given for rejecting medical information: J.M. (Cameroon) v. Minister for Justice, Equality and Law Reform (Unreported, Clarke J., 16th September, 2013), R.A. (Uganda) v. Refugee Appeals Tribunal [2014] IEHC 552 (Unreported, Eagar J., 25th November, 2014) and R.M.K. (DRC) v. Refugee Appeals Tribunal [2010] IEHC 367 (Unreported, Clark J., 28th September, 2010). Those decisions do not help here because reasons were given for holding the medical reports to be insufficient. As in C.M., the reports were medical information which was put in the balance with all other evidence. Insofar as reliance was placed on I.M. (Niger) v. Minister for Justice and Equality [2015] IEHC 826 (Unreported, Eagar J., 17th December, 2015) at para. 53, in that case the decision-maker had failed to state what the significance of the medical report was and why it was discounted. That is not so here. The medical report was held to be insufficient because the general credibility of the applicant was rejected having regard to all the circumstances including that medical information. The IPAT is of course in a much better position than a court on judicial review to assess the credibility of an applicant: see C.M . and X.X. v. Minister for Justice and Equality [2016] IEHC 377 [2016] 6 JIC 2409 (Unreported, High Court, 24th June, 2016) at para. 111.

11. In any event, the tribunal went on to give a separate independent reason for the decision even if it was wrong on the credibility assessment, so even if, counterfactually, the applicant had established a point under this heading, that point is not determinative and could not be a basis for quashing the decision unless the tribunal’s other reason also fell.
Allegation that the tribunal misunderstood O.O. and B.O. (Nigeria) v. Minister for Justice, Equality and Law Reform regarding impunity or lack of redress
12. The fundamental point made by the tribunal under the heading of impunity was that the regime had changed since the events complained of by the husband. Thus, even if there was a failure to punish members of the ancien régime , which the tribunal considers has not been made out, that did not on the facts of this particular case constitute a basis for holding that there was a risk to the applicants. While the applicants rely on P.S. (Sri Lanka) v. Secretary of State for the Home Department [2008] EWCA Civ 1213 and Lukombo v. Minister for Justice and Equality [2012] IEHC 129 (Unreported, Cross J., 27th March, 2012) at para. 46, those cases were ones where the regime that had allegedly given rise to harm to the applicants and the regime that was affording impunity to the previous actors of harm were one and the same. Those were not regime-change cases and thus do not assist the applicants in the present case.

13. It may well be, having said all of that, that the wording of the decision on this particular point is less than entirely clear, although no legal entitlement in favour of the applicants turns on that. The premise of the applicants’ argument is that the tribunal member was incorrectly relying on the decision in O.O. and B.O (Nigeria) v Minister for Justice, Equality and Law Refrom [2011] IEHC 165, but in fact that does not appear to be the case because the reference to that case (incorrectly described as B.O. ) is prefaced by the phrase ” C.f. “, which suggests that O.O. and B.O. decision is contrary authority: see by way of example, the manner in which Mr. de Blacam’s text book Judicial Review , 3rd ed. (Dublin, 2017) perhaps unhelpfully sought to dispose of adverse authority to the point being contended for by the learned author, by the rather staccato phrase ” C.f . I.E.” at p. 338 n. 63 ( C.M. (Zimbabwe) v. International Protection Appeals Tribunal [2018] IEHC 35 [2018] 1 JIC 2304 (Unreported, High Court, 23rd January, 2018, para. 9).
Allegations that adverse credibility findings were based on conjecture, speculation, fail to deal with the substantive bases of the claim, were unreasonable, unfair, relied on the applicant’s misrepresentations to the exclusion of other factors and dismissed the applicants’ explanations.
14. To some extent, the scattergun nature of grounds 3 and 4 of the husband’s proceedings and the corresponding complaint made in the wife’s proceedings indicate that the applicants are simply dissatisfied with the decision and are seeking to have it re-examined on a factual basis by the court. Judicial review is not an appeal ( Lennon v. Clifford [1992] 1 I.R. 382 (O’Hanlon J.)): obviously there is a certain threshold to be reached in terms of demonstrating unreasonableness or breach of fair procedures.

15. Reliance is placed on the judgment of Finlay Geoghegan J. in V.C. v. Minister for Justice, Equality and Law Reform (Unreported, ex tempore , 4th July, 2003) where reference was made to para. 199 of the UNHCR handbook to the effect that an application should not be dismissed simply because of false statements and that those statements should be assessed in the light of all circumstances. A consistent approach is taken in Hailbronner and Thym, EU Immigration and Asylum Law , 2nd ed. (C.H. Beck/Hart/Nomos, 2016) at Part DIII by Judge Dörig at p. 1138. However, as regards the complaint of not dealing with the core story, there is no obligation to address a core account if the credibility of an applicant is lawfully rejected generally. Secondly, findings are not speculation. There is nothing impermissible in the approach taken by the tribunal to the husband’s account of escaping from the police vehicle. Furthermore, rejection of credibility is not in itself an unfairness. It is true that where credibility is rejected, a decision-maker may be under a duty to consider future risk if and only insofar as that risk is not dependent on credibility: see J.M.A. v. Refugee Appeals Tribunal [2012] IEHC 480 (Unreported, O’Keeffe J., 20th November, 2012). However, here the future risk claimed, apart from that in relation to the military service, was dependent on the applicant’s credibility and thus a rejection of credibility does determine that issue.

16. As regards the finding that the wife’s dismissal of counselling was a factor militating against her credibility, in relation the account of rape, that does not immediately strike me as a hugely valid approach to that issue. Reliance was placed on the decision of Eagar J. in F.O. (Nigeria) v. Minister for Justice and Equality [2015] IEHC 816 (Unreported, High Court, 17th December, 2015) at para. 46. That was a case where an applicant failed to mention an alleged rape to the Refugee Applications Commissioner and then came up with that story for the first time before the Refugee Appeals Tribunal. Eagar J.’s view was that it was so unreasonable for the tribunal member to even take into account the previous failure to mention such an allegation that the decision had to be quashed by certiorari . With the utmost respect to the learned judge, I do not think that approach can stand up and it expands the doctrine of irrationality to a point whereby the judicial review court would be substituting its own view of the facts for that of the decision-maker. The question on judicial review is not whether one agrees with the decision or not but whether it is rationally open to the decision-maker (a principle mentioned in F.O ., but not one conspicuously consistent with the outcome). Taking into account a failure to mention a rape (or anything else) to the first instance decision-maker is generally well within what is open to a decision-maker. Taking into account a failure to pursue counselling is generally not, because seeking counselling is only one of a number of possible reactions to such a situation.

17. It is thus a matter for the tribunal to assess any explanations made as long as it does so rationally. To some extent, the decision in F.O. is unsatisfactory more generally anyway (possibly reflected in the fact that it is not cited in any subsequent cases noted on justis.com), because it imposes an impossibly high standard regarding assessment of a range of issues discussed at paras. 46 – 52 in particular. At para. 49 the learned judge saw no great problem with contradictions in the applicant’s account on the basis that there was not ” such a difference that a finding of a lack of credibility could be regarded as cogent and/or reasonable “. That is with respect the court assigning weight to the evidence which the decision-maker who actually saw the witnesses had assigned differently. At para. 50 Eagar J. said that ” This Court has held on a number of occasions that travel findings are peripheral “. Again one would have to respectfully say that it is not for a judicial review court to assign weight to particular issues, especially not in a blanket and categorical fashion. However the jurisprudential nadir of the decision is reached at para. 51 which states : ” The second named respondent said that she found the first named applicant to be vague and evasive in her manner of answering questions raised by the Tribunal. Her manner of answering such questions appeared to be a deliberate attempt by her to confuse the evidence. However no examples of this are given by the second named Respondent and in these circumstances this Court finds that the finding that the applicant was vague and evasive without giving any examples of this cannot be regarded as being based on either correct facts or on the basis of rationality. ” There is simply no obligation whatsoever for a decision-maker to ensure that ” examples are given ” in a decision, including when rejecting demeanour. No authority is cited in F.O. for any of these propositions. Contrary authorities are legion. Weight is generally a matter for the decision-maker (see para. 9 above for a few examples); and in I.R. v. Minister for Justice, Equality and Law Reform [2015] 4 I.R. 144, Cooke J. held that ” When subjected to judicial review, a decision on credibility must be read as a whole and the court should be wary of attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination in disregard of the cumulative impression made upon the decision maker especially where the conclusion took particular account of the demeanour and reaction of an applicant when testifying in person ” (at 152, para. 10(8)). There is no super-special administrative law for asylum decision-makers separate from general public law, and general public law decision makers don’t have to spice their decisions with examples, whether dealing with demeanour or not. Even High Court judges don’t feel obligated to do so, and it would be hypocritical and inappropriate to condemn the tribunal for an approach to reasoned decision-making that equals or even surpasses one’s own. The finale of the decision at para. 52 strikes down the asylum refusal because it did not ” consider the welfare of the child [or] the medical treatment which might be available to a child “. This simply confuses the issues that arise at the protection stage with those at the deportation stage.

18. In the present case, if the approach of the tribunal to the question of the wife’s failure to seek counselling was the only basis of the decision, matters might arguably be different; but two points need to be made. The point of lesser importance is that this was in the context of dealing with somebody who admitted that they had misled the protection process. The wife had implied that she had had a previous husband, which was not the case. She denied that the husband that she did have had made a visa application. She only admitted to the true situation under questioning from the tribunal and after the husband had been detected as having lied about the matter, rather than by way of volunteering the information. She gave evidence about the husband’s name-change which was inconsistent with the husband’s account. So the unsatisfactory nature of the tribunal relying on the failure to seek counselling is somewhat diluted by the fact that there are a host of other legitimate findings against the wife on the credibility issue. Having said all that, I accept the validity of Mr. de Blacam’s point that it is perfectly possible for a victim of an offence to simply take a stoical view and to not wish to deal with that issue by way of counselling.

19. More fundamentally, the tribunal member gave an independent reason for rejecting the wife’s application, which was that even if he was wrong about the wife’s credibility, she was not currently at risk in view of the regime change. Mr. de Blacam’s reliance on the Court of Appeal decision in B.W. v. Refugee Appeals Tribunal [2017] IECA 296 [2018] 2 I.L.R.M. 56 is misplaced because the present case is not a situation where one is taking a view of the decision in the round and seeing if one can stand up a decision based on multiple factors combined, even if some element of that combination is knocked out. This was the process on which B.W . pivots, as appears from the core finding at para. 70 of the judgment of Peart J. that “[t]he greater the number of such reasons that are found to be flawed, the more likely it is that the foundations of the overall decision reached on a cumulative basis are undermined to the extent that it must be set aside. ” Combining different factors to form a composite conclusion, as in B.W ., is totally distinct from having two independent and water-tight bases for the outcome. In the latter context, one of those bases can be demolished completely without thereby laying a glove on the other, independent basis. The present case is a situation where there are two independent grounds for the decision, the validity of the second one being wholly divorced from that of the first. So thus even if the credibility assessment could not be sustained, the applicant would have to additionally show invalidity in relation to the reliance placed by the tribunal on the regime change, which has not been done.
Alleged failure to apply the benefit of the doubt
20. As para. 204 the UNHCR handbook makes clear, the benefit of the doubt only applies if the applicant’s general credibility is accepted, which is not the case here (see B.D.C. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 460 para. 9). Again, even if the approach to this question was in some way flawed, which it was not, the tribunal gave an independent reason for the applicants not being currently at risk.
Alleged failure to have regard to the risk to the applicants in the light of the international armed conflict in the Ukraine and/or the risk of harm arising from being drafted
21. The tribunal member’s approach was that severe punishment for draft evasion could be serious harm in a particular case but there was no evidence to that effect in this case. In V.B. (Ukraine) v. Secretary of State for the Home Department [2017] UKUT 79 the Upper Tribunal took the view that there could be aggravating circumstances in particular cases giving rise to such a risk. However, the applicant, as found by the tribunal, simply did not establish such a case. V.B. itself was a case where the applicants were the subject of criminal convictions, had outstanding prison sentences and, in one case, was a previously serving soldier. The husband in this case has not received a military call-up, has not evaded the military, does not have Ukrainian convictions and does not have an outstanding prison sentence to serve, so the claim of harm under this heading is speculative and the tribunal member’s finding that it had not been proved has not been shown to be unlawful. Overall V.B. militates very much against the applicants’ submission here, insofar as it found that, absent such aggravating factors, “[a]t the current time it is not reasonably likely that a draft-evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act ” (para. 87).
Order
22. For those reasons the applications are dismissed.

 

R.S. (Ukraine) v The International Protection Tribunal & ors;

I.H. (Ukraine) v The International Protection Tribunal & ors No.2

Neutral Citation:
[2018] IEHC 743
High Court Record Number :
2017 835 JR; 2017 834 JR
Date of Delivery:
03/12/2018
Court:
High Court
Judgment by:
Humphreys J.
Status:
Approved
[2018] IEHC 743
THE HIGH COURT
JUDICIAL REVIEW

[2017 No. 835 J.R.]
BETWEEN
R.S. (UKRAINE)
APPLICANT
AND
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS
[2017 No. 834 J.R.]

BETWEEN
I.H. (UKRAINE)
APPLICANT
AND
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS
(No. 2)

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of December, 2018
1. In R.S. (Ukraine) v. International Protection Appeals Tribunal (No. 1) [2018] IEHC 512 (Unreported, High Court, 17th September, 2018) I refused certiorari in respect of IPAT decisions refusing the applicants subsidiary protection. The applicants now seek leave to appeal, and I have considered the law in that regard as set out in Glancré Teoranta v. An Bord Pleanala [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006) and Arklow Holidays v. An Bord Pleanala [2008] IEHC 2, per Clarke J. (as he then was). I have also discussed these criteria in a number of cases, including S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016) (para. 2), and Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017) (para. 72).

2. I have received helpful submissions from Mr. Eamonn Dornan B.L. for the applicants, from Mr. Peter Leonard B.L. for the respondents in the husband’s case and from Mr. Alexander Caffrey B.L. for the respondents in the wife’s case.
Question 1
3. The first proposed question of exceptional public importance is ” Is an international protection decision-maker obliged to determine the probative value to be afforded to a medico-legal report in relation to the material fact for which it is proffered, or can the decision-maker dispose of it as “insufficient” in the context of a general credibility assessment?”.

4. First of all, the submission made under this heading suffers from a certain terminological mangling. It confuses disregard with discounting. The medical report was not disregarded. Regard was had to it but it was held to be insufficient.

5. Secondly, documentary evidence can perfectly lawfully be held to be insufficient. The applicants’ submission is overdetermined. A report can only tell so much unless it is diagnostic of a particular account. Merely being consistent, or even highly consistent, with an account does not of itself prove the account to be correct. That it not a difficult or problematic concept or one on which reasonable or any doubt arises or could arise.

6. Thirdly, it is well-established that a decision-maker should not compartmentalise the various components of the interlocking aspects of a decision. There is a fundamental difficulty with the notion that you can divorce an assessment of the reliability of a document, including a medical report, from an assessment of the reliability of the person providing the information contained in the document or producing that document, for example by postulating that these two processes can be put in watertight compartments and the latter only assessed after the former. We would not do this in real life. Issues with one naturally and legitimately inform the other. High Court judges for example do not do that when assessing evidence. If a person is caught out in a lie in oral evidence, that may cast doubt on a document that he or she has earlier produced that might otherwise look valid on its face. If such a holistic approach is legitimate, which it is, it is not possible to credibly suggest that documents or reports can be assessed separately from and in advance of an assessment of an applicant’s credibility: see also K.M. (Pakistan) v. Minister for Justice and Equality [2018] IEHC 510 [2018] 7 JIC 1005 (Unreported, High Court, 10th July, 2018).

7. Mr. Dornan’s submission is that the tribunal has to make what he calls a ” proper determination of the material facts “, which in practice would mean disregarding anything adverse to an applicant, such as the major question marks over his account. That would be a blinkered determination. The fact that evidence against an applicant outweighs, in the opinion of the tribunal, the evidence in his or her favour, does not mean that a methodological error has been committed. The applicants’ submission that the tribunal did not make proper findings of material fact comes down to an assertion that the tribunal did not make prematurely favourable findings on limited evidence. The tribunal is certainly neither obligated nor entitled to make any determination of material fact separately from a holistic assessment of the evidence, and indeed it would be an error of law to do so.

8. It is true that Hogan J. said by way of obiter comment in R.A. v. Refugee Appeals Tribunal [2017] IECA 297 (Unreported, Court of Appeal 15th November, 2017) (para. 62) that ” given the alleged provenance of the documents and their obvious relevance to his claim, if true, it was incumbent in these circumstances on the Tribunal member to assess such documentary evidence – if necessary, by making findings as their authenticity and probative value – so that that very credibility could be assessed by reference to all the relevant available evidence”, referring to the European Communities (Eligibility for Protection) Regulations 2006, implementing directive 2004/83/EC. That comment, I would very respectfully venture to suggest, was not only obiter but also somewhat in tension with the ratio of the decision under this heading which was ” The Tribunal member’s obligation was to make an overall assessment of credibility based upon an evaluation of all potentially relevant information and not just some of that material” (para. 70). It is just as much a breach of the requirement to evaluate all of the evidence to purport to ” mak[e] findings ” as to the authenticity of documents separate from and in advance of an assessment of ” that very credibility ” of the applicant as it would be to determine the credibility of the applicant without reference to the documents.

9. Where Hogan J. refers in the obiter passage quoted to assessing credibility ” by reference to all of the relevant available evidence” that is of course not problematic if by ” evidence ” what is meant is material before the tribunal prior to any findings. Such a concept becomes problematic – indeed erroneous – if the apparently innocuous obiter phrase “if necessary, by making findings as to their authenticity and probative value ” is interpreted as meaning that (save in exceptional circumstances where the document’s status was unquestionable) credibility can be determined in the light of, and thus by definition after, such ” findings “. If such a distorted process were to take place, the credibility assessment would not be one carried out by reference to all of the evidence – it would be carried out by reference to a blinkered and truncated process involving improperly premature and artificially compartmentalised findings in relation to documents, divorced from a holistic assessment of the evidence overall. That is not assessment by reference to all of the available evidence in any meaningful sense.

10. The notion that one could make findings on documents in advance of an assessment of the applicant’s account overall could only apply in exceptional circumstances where the authenticity of the document can be indubitably established independently of the applicant’s credibility. That is what Hogan J. can only have meant by ” if necessary “. Outside such exceptional circumstances where such findings are undisputed and undisputable, compartmentalisation by making findings on documents before considering overall credibility is neither necessary nor lawful. The judgment in R.A . cannot be read as meaning that documents or reports should be assessed and subjected to firm findings in vacuo without a consideration of all the circumstances of the case, including factoring in any issues with the applicant’s general credibility. Such an approach would certainly misunderstand, and contradict, European standards.

11. The guidelines prepared by the European Asylum Support Office (established by Regulation (EU) 439/2010) and drafted by the International Association of Refugee Law Judges-Europe, Judicial Analysis, “Evidence and Credibility Assessment in the Context of the Common European Asylum System”, 2018 state that ” a decision-maker will err in law if he/she approaches the evidence in a compartmentalised way and reaches a conclusion before considering all the relevant evidence in the round” (p. 72).

12. The judicial analysis refers under this heading to Mibanga v. Secretary of State for the Home Department [2005] EWCA Civ 367. In that case Buxton L.J. at para. 30 illustrated the problem by saying that in that case ” the adjudicator’s failing was that she artificially separated the medical evidence from the rest of the evidence and reached conclusions as to credibility without reference to that medical evidence; and then, no doubt inevitably on that premise, found that the medical evidence was of no assistance to her “. But the opposite also applies. A decision-maker cannot uphold a document or medical report as establishing the applicant’s case ” on the balance of probabilities “, as put by Mr. Dornan, without having full regard to all the other evidence, including questions over an applicant’s credibility, and then use the finding in relation to the document or medical report to overcome all possible doubts about such credibility. That is equally impermissible compartmentalisation. The decision-maker must consider the case as a whole before making any ” findings ” about any aspect of it.

13. Finally under this heading, I should say that the applicants claim that there is a conflict in caselaw at para. 37 of the leave to appeal submissions, but I dealt with this at para. 10 of the No. 1 judgment. There is no such divergence because reasons were given for discounting the medical report as being insufficient. The applicant also seeks to resuscitate a stale argument about the fact that the comments in R.O. v. Minister for Justice and Equality [2015] 4 I.R. 200 were somewhat finessed in I.E. v. Minister for Justice and Equality [2016] IEHC 85 (Unreported, High Court, 15th February, 2016). The position in I.E. has been explained in a number of subsequent cases. Respondents do not have to prove that reasons are cogent and substantial. The onus of proof in judicial review is on the applicant. That is not a controversial proposition.
Question 2
14. The second proposed question of exceptional public importance is ” Does an applicant meet his/her burden of establishing a lack of state protection for the purposes of Regulation 16 of S.I. 426 of 2013 and Article 7(2) of Council Directive 2004/83/EC where the applicant can demonstrate that the change in regime has not resulted in any “effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm” in relation to actors of persecution and/or serious harm under a former regime?”.

15. The premise of the question is incorrect. The applicants did not demonstrate that, insofar as they were concerned, there was a risk of serious harm after the régime change. Thus a question premised on a position that the applicants have demonstrated such a risk does not apply. There is possibly some country information that not all past perpetrators of harm have been fully held to account, but one could say that about many situations of régime change or political change. By way of a possible example, one could take Northern Ireland. Country information, insofar as it was relevant to these particular applicants, fell well short of suggesting, let alone demonstrating, a material forward-looking risk of serious harm specific to them.

16. The applicants also misread reg. 16 of the European Union (Subsidiary Protection) Regulations 2013, which provides that protection against serious harm includes a situation where there is an ” effective legal system for the detection, prosecution and punishment of acts constituting serious harm “. That does not mean that in the context of system change, failure to fully punish all perpetrators of past harm under an old system constitutes a lack of forward-looking protection for any and all applicants who may present themselves.

17. For what it is worth, this impunity point was framed in a different form in the pleadings to what is now submitted. An applicant is not entitled to appeal on the basis of second thoughts about how the case should have been run originally, as seen through the prism of an adverse substantive judgment. What is pleaded at ground 1 of the wife’s case and ground 2 of the husband’s case was firstly that there was a misreading of the so-called B.O . case (as I pointed out at para. 13 the No. 1 judgment, the correct title is O.O. v. Minister for Justice, Equality and Law Reform [2011] IEHC 165 (Unreported, Cooke J., 16th March, 2011)). I held that the case was not necessarily misread because it was prefaced by ” C.f.”, which suggests that the tribunal member was contrasting that case. In any event, this first point is not the subject of an application for leave to appeal.

18. The second matter that had been pleaded in the statement of grounds under this heading is that the decision is ” unreasonable and does not flow rationally from the Country of Origin Information considered ” (the distinction implied by the word ” and ” seems elusive, perhaps to the point of non-existence). What I said about that at para. 12 of the No. 1 judgment was that the fundamental point made by the tribunal in this regard was that even if there was a failure to punish members of the ancien régime , which the tribunal did not accept, that did not on the facts of the particular case constitute a basis for holding that there was a risk to the applicants. To that extent, while naturally enough the proposed question is phrased in the widest possible terms, its application comes down to being quite fact-specific.

19. While Mr. Dornan places some reliance on the written submissions before the tribunal, that was superseded to a considerable extent by the oral evidence of the applicants, both of whom accepted that the new régime opposes the policies of the previous government: see para. 16.10 and 16.11 of the decision in the wife’s case.
Question 3
20. The third proposed question is ” Where a decision-maker has made adverse credibility findings arising from an Applicant’s failure to seek medical or psychological assistance following an allegation of rape, has the decision-maker acted unreasonably in the assessment of past harm, and serious risk of future harm, under Regulation 13(2) of S.I. 426 of 2013?”.

21. Again, that is a totally fact-specific issue and does not raise a question of law, let alone one of exceptional (or indeed any) public importance. Furthermore, it completely misrepresents the nature of the decision. If the tribunal decision had been solely or primarily based on the wife’s failure to seek counselling, then it would indeed have been problematic. However, as I said at para. 18 of the No. 1 judgment, the unsatisfactory nature of the tribunal’s comment in relation to that point is diluted by the fact that there were a host of other legitimate findings against the wife on the credibility issue. I also noted that the second problem with this submission was that the IPAT had a separate ground for refusal that was not related to its handling of the counselling issue.

22. The applicants rely in submissions on Da Silveira v. Refugee Appeals Tribunal [2004] IEHC 436 (Unreported, Peart J., 9th July, 2004). That was a leave decision, not a substantive one (not that that was adverted to in the applicants’ submissions); but in any event there is no question about the need to consider a future risk of harm if some elements of an account are accepted, even if some elements of an applicant’s credibility are rejected. But any such consideration of a future risk has to be carried out in terms of the facts as found by the tribunal, not by reference to those rejected. In some instances, the nature of the rejection of an applicant’s account is such that no independent risk can arise from the sometimes quite minimal material facts that are accepted. In the present case this principle does not assist the applicants.
Overall problems with the application
23. A couple of overall problems with the application should be re-emphasised. For reasons that should be apparent from the foregoing, one can legitimately summarise by saying that the proposed grounds of appeal and submissions made in support of them are quite tendentious and mischaracterise a number of key aspects of the case. More fundamentally, there were two separate and independent grounds for the tribunal decision. The applicant would have to show grounds of appeal and points of exceptional importance on both grounds in order to succeed. Here the applicants have done neither, but even if they had shown such grounds in relation to one such point, any appeal would be futile as it would be bound to fail having regard to the other independent ground of refusal.
Order
24. Accordingly, the applications for leave to appeal are dismissed.

 

L.A.A. (Bolivia) & Ors -v- Refugee Appeals Tribunal & Ors

[2016] IEHC 12 (12 January 2016)

JUDGMENT of Ms. Justice Stewart delivered on the 12th day of January, 2016
1. This is telescoped hearing for judicial review seeking, inter alia, certiorari to quash a decision of the Refugee Appeals Tribunal dated 4th October, 2011, notified to the applicants by cover letter dated 14th October, 2011, and remitting the appeal of the applicants for de novo consideration by a separate member of the Refugee Appeals Tribunal.

2. An extension of time of two days was required at the outset of the hearing. No objection was raised by the respondents in relation to the necessary extension and given the amount of time that has elapsed since the commencement of these proceedings, and the explanation offered on affidavit by the first named applicant, I am satisfied that it is appropriate to grant an extension of time in respect of these proceedings.
Background
3. The applicant is a Bolivian national, born on 20th April, 1973. She was married in 1994. The second named applicant is the first named applicant’s daughter. She was born on 6th February, 1995. The third named applicant is the first named applicant’s son. He was born on 20th June, 2008. The first named applicant studied accounting, and operated her own business in Bolivia. Her stated problems began in 1997 when her husband began to abuse her, both verbally and physically. The applicant stated that her husband is well connected in Santa Cruz where he works as a lawyer. He is also a member of the Union Cruceñista, which she describes as a racist organisation. She further stated that her husband’s family were involved in Acción Democrática Nacionalista, the political party in power in Bolivia until 2001. The first named applicant left him in 1995 and moved to Cochabamba, with her daughter, when the child was three months old. They remained there for eights months, but when her husband found them, he forced them to return to Santa Cruz.

4. The applicant went to London in 2000 as a student. Her husband came to London in May, 2001, and their daughter joined them shortly thereafter. In 2003, she contacted the police in England because he was threatening her with physical abuse but she did not make a formal complaint. The first named applicant became undocumented in the UK in 2002 and, in 2007, while still working she applied for residency and was apprehended by immigration officers. She and her daughter were subsequently deported to Bolivia on 15th November, 2007. Her husband returned to Bolivia in 2010. They lived together but the problems began again. She stated that she was unable to report him as he is a lawyer and has influential connections, so she believed no action would be taken against him. She left Bolivia with her two children, travelling through São Paulo and Paris, arriving at Dublin airport on 20th April, 2011. The intended destination was the UK but the applicants were apprehended at Dublin airport.

5. The applicants applied for asylum at Dublin airport. The applicants, thereafter, attended at the Offices of the Refugee Applications Commissioner (ORAC), completing the s.11 interview on 27th May, 2011. The ORAC issued a negative decision in respect of the applicants’ claim for a declaration of refugee status on 7th July, 2011. The decision summarised the applicants’ claim and then made findings regarding the availability of state protection and the feasibility of internal relocation. On the final page, exhibited at p.152 of the booklet, the authorised officer states, under the heading ‘nexus to section 2 grounds’, as follows:-

“The applicant is claiming a fear of persecution due to domestic violence. According to the applicant’s statements this violence is motivated by her husband’s alcoholism, not by the applicant’s race, religion, nationality, membership of a particular social group or political opinion. Therefore there is no nexus to section 2 grounds in this case.”
6. The applicants appealed the decision of the ORAC to the Refugee Appeals Tribunal (RAT) by form one, notice of appeal and attended at the RAT for an oral interview on 13th September, 2011.
The impugned decision
7. The RAT upheld the negative recommendation of the ORAC by decision dated 4th October, 2011. The decision sets out the background to the applicants’ claim, the applicable law in the pro forma manner, and, under the heading ‘analysis of the applicants’ claim’, at p. 13 of the booklet, sets out as follows:-

“According to the Human Rights Reports on Bolivia, violence against women is a pervasive and under-reported problem. 70% of Bolivian women suffer some form of abuse. There is apparently a Police Family Protection Brigade but this lacks financial support and sufficient personnel to follow up and pursue unreported cases.
The file discloses that [first named applicant’s husband] has a criminal record. Apparently there are two convictions, the first follows an incident when [first named applicant’s husband] was involved in what is termed ‘indecent conduct on a public highway’. He was involved in a fight and caused damage to a restaurant. He was apparently under the influence of alcohol. This happened on the 26th December 2010.

There is then a reference to a further arrest for a period of 6 hours, having caused “slight injuries” to his friend Mr. [named] while they were both intoxicated. This incident happened in February 2011. There is another reference to a case of drunken driving. His licence was suspended for a period of some months.

There is also on file a medical certificate which informs that [first named applicant] suffered physical abuse with evidence of haematomas on her right upper eyelid, on the anterior and posterior thorax and on the arms and forearms.

The gist of this case is that the Applicant fears that in Bolivia, she would be denied the protection of the State because of the violent activities of her husband who has connections in the government and the police force.

[First named applicant] told the tribunal of a number of incidents when she suffered from her husband’s violence. There is a medical report exhibited on her behalf. [ORAC officer] asked questions regarding the authenticity of this document.

The case brought to the Tribunal is the [husband] is a man who is to be feared because of his connections with the police and public servants. The documents on file do not support this claim. What the documents show is that [husband] has criminal convictions because of his drunken violence. While this supports that claim brought by [first named applicant] (i.e., that her husband is drunken and violent) it indicates that [husband] is not a man of great influence. He was convicted of separate offences in 2010 and 2011. It does not make sense to suggest that [husband] would be prepared to tell police to look the other way in the event of his wife’s complaint of violence while at the same time not using his influence with the police when he himself was facing criminal charges.

Country of origin reports refer to the fact that the Family Protection Brigade handled in excess of 3,500 cases in 2008. The US State Department Report on Bolivia for 2009 points out that the police lacked financial resources to pursue all reported cases but the important point is that there is a police unit that is prepared to take action when it is appropriate. The protestations made to the Tribunal, i.e. that the police would be of absolutely no assistance, are not well founded. It is a long established principle of refugee law that if protection is available in a country an applicant should first seek that protection before fleeing overseas to seek surrogate protection in another country.

The evidence is that [second named applicant] is a young lady who has a considerable problem with mental illness.

[…]

The Tribunal is satisfied that the claim brought by [first named applicant] and her children is not well-founded for the reasons stated. It is most regrettable that [second named applicant], at 16 years of age, should suffer from the effects of psychological stress […]. [Second named applicant] may have grounds, based on human rights issues, for not returning to Bolivia but that is not a matter for this Tribunal.

The assessment of all facts and circumstances as required by Regulation 5(1) of S.I. 518 of 2006 has been compiled with.”

Applicant’s submissions
8. Counsel for the applicants, Mr. Garry O’Halloran, B.L., summarised the decision as follows. It is accepted that the events occurred and there are no credibility issues; however, the tribunal member decided that state protection would be available and the applicant does not belong to a particular social group. The applicants submitted that the finding that the applicants do not belong to a particular social group is an error of law. The applicants submitted that they, as a family unit, can form a social group, and relied upon the decision of this Court in A.V.B. & ors. v. Refugee Appeals Tribunal & ors. [2015] IEHC 13. The applicants also submitted that women can also form a social group, as per the UK House of Lords decision in Islam (A.P.) v. Secretary of State for the Home Department; R v. Immigration Appeal Tribunal and Another, Ex Parte Shah (A.P.) [1999] 2 AC 629, where it was held that women in Pakistan accused of adultery could form a social group for the purposes of the Refugee Convention.
9. The applicants argued that the decision-maker had preferential regard for certain country of origin information over other such information, and the decision does not comply with the test as set out by Edwards J. in D.V.T.S. v. Minister for Justice, Equality and Law Reform & anor. [2008] 3 IR 476. The applicants submitted that country of origin information, which showed that police protection would not be available, was disregarded in favour of information that did not support the applicants’ claim without reasons for the preferment given by the decision-maker.

10. The applicant submitted that the tribunal member erred in law in making findings in respect of state protection without making any assessment of the adequacy of such protection in light of the applicants’ particular circumstances, and failed to have regard to the connections of the applicants’ husband and father. The applicants relied upon the decision of Clarke J. in Idiakheua v. Minister for Justice, Equality and Law Reform & anor. [2005] IEHC 150, where at p. 7 therein, the test is set out as ‘reasonable protection in practical terms’.

11. The applicants submitted that the reasoning within the decision is inadequate, particularly referring to the statement that because the husband had been arrested on occasions, he does not appear to be a man of influence, as quoted above. The applicants relied upon the decision of MacEochaidh J. in B.O.B. v. Refugee Appeals Tribunal & ors. [2013] IEHC 187.

12. The applicants further argued that there is no evidence of any consideration given to the situation of the third named applicant in the decision.
Respondent’s submissions
13. Counsel for the respondents, Ms. Fiona O’Sullivan, B.L., submitted that the claims of the minor applicants were advanced on their behalf by their mother and were the same as their mother’s to the extent that all of the applicants feared domestic violence at the hands of the husband/father and she claimed that she had not sought state protection because the father had good connections. Further, regarding the applicants’ submission that no consideration was given to the third named applicant, the respondents submitted there was no individual claim put forward on behalf of the third named applicant, separate and distinct from that advanced by the mother in whose application he was included.

14. The respondents submitted that the tribunal decision must be read as a whole and should not be deconstructed or parsed, and when read as a whole, the respondents submitted, it is clear that the tribunal member fully understood and assessed the applicants’ claim. The respondents submitted that the appeal was filed on the basis that the applicants were members of a particular social group and on the facts this was the only convention nexus applicable. The respondents argued that there is no evidence that the tribunal failed to consider this issue, but rather the decision is based on the availability of state protection. Counsel relied upon the decision of A.W.S. v. Refugee Appeals Tribunal [2007] IEHC 276, where at p. 14 Dunne J. states that it is not the function of the courts to engage in minute analysis of tribunal decisions. The respondents argued that the tribunal considered the claim on the basis that the applicants had a fear of persecution due to domestic violence at the hands of her husband and considered whether state protection would be reasonably forthcoming if sought. The respondents submitted that there is no evidence that the tribunal failed to assess the facts in this case in accordance with law, as per, inter alia, A.W.S. v. Refugee Appeals Tribunal [2007] IEHC 276 and G.K. v. Minister for Justice, Equality and Law Reform & ors. [2002] 2 I.R. 418.

15. The respondents contended that, contrary to what is asserted by the applicants, the tribunal assessed the issue of the availability of state protection and whether it would be reasonably forthcoming. The applicants claimed that the husband had ‘good connections’ and this claim constituted the applicants’ particular circumstances; moreover, it was argued, the tribunal referred specifically to the contents of the country of origin information on file, the documents submitted to it, including the police record, and the ‘good connections’ that the husband was alleged to have. The respondents submitted that the tribunal referred to the contents of the medical report submitted in respect of the second named applicant and had regard to its contents, which is evident from the decision.

16. The respondents argued that the tribunal rationally assessed the contents of the country of origin information on file and specifically referred to the contents of the Human Rights Report on Bolivia (2008), which stated that violence against women was a pervasive and under-reported problem, and that 70% of women suffered some form of abuse; there was a Police Family Protection Brigade which lacked financial support and sufficient personnel. But, the respondents argued, the applicants did not demonstrate an inability on the part of the state to protect them.
Decision
17. The applicant argued that the error of law was contained in the determination that the applicants do not form a particular social group. The applicants relied, inter alia, upon the decision of this court in A.V.B. (supra) to support the proposition that a family could form a social group for the purposes of s.2 of the Refugee Act, 1996 (as amended). However, when the decision is read as a whole, the tribunal member rejected the applicants’ claim on the basis that, given the family’s particular circumstances, state protection would be available to the family if they were to seek it. The tribunal member was particularly mindful of the difficult circumstance of the second named applicant and referred to the medical evidence before him. Nevertheless, he found that a consideration of those circumstances was not related to the claim of persecution and not within the jurisdiction of the tribunal.

18. The applicant was given the opportunity to have the third named applicant included with her own claim. In I.N.M. v. Minister for Justice, Equality and Law Reform & anor. [2009] IEHC 233, Clark J. states as follows at paras. 31 and 32:-

“When a parent seeks to include a dependent child in a claim for refugee status, then it is up to that parent to establish his/her claim first and to then establish whether the child has a separate and independent fear of persecution in its own right or whether the child’s claim depends entirely on that of the parent. This is well trodden ground admirably elucidated by Peart J. in the High Court hearing in Nwole and followed in many judgments since then. His findings on the general principles applying where the parent brings an application on his/her own behalf but does not advance or bring to the attention of ORAC or the RAT any facts or circumstances relevant to that minor that are separate and distinct from the facts of circumstances relevant to the parent’s application, were not considered by the Supreme Court in N. (A) & Ors v Min for Justice & Commissioner of An Garda Síochána [2007] IESC 44. The question for determination by the Supreme Court related to the refusal of an asylum application. Finnegan J. decided that if the head of the family is not a refugee there is nothing to prevent any one of his dependants, if they can invoke reasons on their own account, from applying for recognition of their status as refugees. He determined that “there was no application by or on behalf of the minors” and accordingly there could have been no refusal of the minors’ applications and that s. 3(2) (f) of the Immigration Act 1999 did not apply to them: “the basis upon which the Minister purported to make deportation orders in relation to the minors did not exist”.
32. Nothing in the decision of the Supreme Court in N.A. and others changed the principle that it is entirely appropriate that members of the same family units should make joint asylum claims as clearly, if the parent establishes a well-founded fear of persecution for a Convention reason, then the spouse and dependent children are also at risk and in need of protection. Protection to the family is ensured in section 18 of the Refugee Act 1996, as amended, and Council Directive 2003/86/EC of 22 September, 2003 on the right to family reunification. It will be highly unusual for a parent to fail to establish a fear of persecution and for a dependent minor child to succeed. It will be even more unusual for a toddler to succeed where his mother fails.”

Where no separate and distinctive fears are identified on behalf of the children, then the children’s case has been considered as predicated on that of the mother’s claim.
19. In Idiakheua v. The Minister for Justice, Equality and Law Reform [2005] IEHC 150, Clarke J. held “the true test is whether the country concerned provides reasonable protection in practical terms”. This is in line with article 7(2) of the 2004 Qualification Directive, which provides the following guidance as to the standard of protection that states are expected to provide:-

“Protection is generally provided when the actors [of protection] take reasonable steps to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, and the applicant has access to such protection.”
State protection can never be perfect protection. The existence of legislation proscribing certain practices is not enough to show the existence of state protection. These laws must also be enforced by the state. An applicant for a grant of refugee status must show that the state authorities are failing in some way to protect persons, and this will be with particular regard to their claim, region and other such circumstances.
20. According to the country of origin information before the decision-maker, domestic violence appeared to be endemic in Bolivia. The tribunal member then went on to assess whether the first named applicant’s husband’s connections were such that he could reasonably prevent her securing state protection. The tribunal found that his connections were not so influential so that state protection would not be forthcoming to the applicant. This amounts to an assessment of the adequacy of the state protection given the applicant’s particular circumstances and therefore, I reject the applicants’ contention that such an assessment was not performed. This assessment is within the jurisdiction of the tribunal and it is not open to this court on judicial review to supplant its own assessment for that of the decision-maker.

21. I would therefore refuse leave.

C.M. (Zimbabwe) v The Chief International Protection Officer & anor

(Approved) [2018] IEHC 410 (10 May 2018)

Page 1 ⇓THE HIGH COURT[2018] IEHC 410JUDICIAL REVIEW[2017 No. 961 J.R.]BETWEENC.M. (ZIMBABWE)ANDAPPLICANTTHE CHIEF INTERNATIONAL PROTECTION OFFICER AND THE MINISTER FOR JUSTICE AND EQUALITYRESPONDENTSJUDGMENT of Mr. Justice Richard Humphreys delivered on the 10th day of May, 20181. The applicant arrived in the State from Zimbabwe in April, 2016 and applied for asylum. He completed a questionnaire and attendedfor a s. 11 interview. The asylum application was refused in October, 2016. The applicant then appealed to the Refugee AppealsTribunal. In December, 2016, the International Protection Act 2015 was commenced. As a result of the transitional provisions, he wasdeemed to have made an application for international protection and was interviewed in September, 2017 by the InternationalProtection Office (IPO).2. On 25th September, 2017, the applicant’s solicitor called on the IPO to provide access to a record of the interview with a view tomaking post-interview submissions. On 26th September, 2017, the applicant was interviewed. On 18th October, 2017, the applicant’ssolicitor wrote further and stated that she was aware from a letter of 6th October, 2017 to another client that “it is the policy of theIPO…not to release the notes from an applicant’s substantive interview prior to the application being finalised”. The IPO ultimatelygave a substantive reply on 13th November, 2017 which did not refer to such a “policy” but stated simply that “there is no statutoryobligation on this office to make such interview notes available in advance of a recommendation being issued. We do not propose todo so at this stage. Our decision is based on previous jurisprudence of the Superior Courts in this regard”.3. Clarification was then sought as to what jurisprudence the IPO had in mind and in further correspondence dated 1st December,2017 the IPO stated that the relevant case was J.R.H. v. Minister for Justice, Equality and Law Reform [2006] IEHC 355 [2009] 4 I.R.474. On 11th December, 2017, the present proceedings were instituted and an injunction granted preventing finalisation of the IPOrec ommendat ion.4. I have heard helpful submissions from Mr. Michael Conlon S.C. (with Ms. Eve Bourached B.L.) for the applicant and from Mr. DanielDonnelly B.L for the respondent.Essential issue5. The key issue is whether the applicant is entitled to be furnished with notes of the interview, prepared by the IPAT, after thatinterview takes place but before a report is prepared thereon, in order to enable post-interview submissions to be made on his behalf.Reliefs of mandamus, certiorari, declarations and injunctions are sought in the statement of grounds but they all relate to this oneissue.Conceptual distinction between interference with rights and a positive duty on the State6. An important context here is that there is no positive right to make post-interview submissions. Section 35(11) says that the IPO isnot precluded from receiving post-interview submissions, but that is very much not a positive invitation to make such submissions andis certainly not a trigger for a whole further process in every case or even in most cases.7. In terms of what has changed since the Supreme Court rejected an analogous right in J.R.H., one major aspect of thejurisprudential landscape that has evolved is the emphasis on proportionality set out in Meadows v. Minister for Justice, Equality andLaw Reform [2010] IESC 3 [2010] 2 IR 701 [2011] 2 I.L.R.M. 157, particularly per Denham J., as she then was, at pp. 751 – 752:“When a decision maker makes a decision which affects rights the court could consider whether the effect on the rights of theapplicant would be so disproportionate as to justify the court in setting it aside on the ground of manifest unreasonableness.” Thisprinciple could be of some relevance if the IPO tried to stop an applicant from recording an interview. It seems to me to be ofsignificantly less relevance if an administrative body postpones handing over notes until after the decision where there is no positiveright to make post-interview submissions, in circumstances where the routine handing-over of such notes would create a significantadministrative burden. It seems to me that J.R.H. is not necessarily determinative if a proportionality challenge based on Meadowswere to be launched in relation to a hypothetical prohibition on tape-recording at this stage in the evolution of the jurisprudencerelating to international protection. I am not prejudging such a challenge but in such a context, Meadows is a new development whichwould have to be given due weight and consideration and in those circumstances the decision of the Supreme Court in J.R.H. wouldnot necessarily be determinative. Such considerations do not arise here. The court can, it seems to me, give at least some, althoughnot necessarily decisive, weight to the possible consequences of finding for the applicant.8. Mr. Donnelly submits that the furnishing of notes will create a further layer of submissions by applicants. I am informed that theaverage time interval between interview and s. 39 report on Mr. Donnelly’s instructions is in the order of four to five weeks. Allowing aprocedure whereby notes have to be furnished would in all likelihood interpose a further round of submissions in the majority of cases.Those submissions will have to be considered and the net result will most likely be a significant slowing down of the whole process.Furthermore, the first set of representations will almost inevitably become more exiguous because applicants will say they will have towait to see what the applicant said at interview before they can supplement the submissions. In addition, inconsistencies willinevitably appear between the first and second set of representations, which will presumably provoke a further round of complaints byapplicants if such inconsistencies are relied on. As Mr. Donnelly describes the applicant’s submission: “it potentially leads to aquagmire; it is far more elaborate and far more complex that what is required”.9. A positive duty on the IPO to hand over its records at this stage of the procedure would introduce a significant distortion in theprocess. That is a fact to which I can have regard. It is a fundamental objective of jurisprudence that “things must be made towork” (see B.W. v. R.A.T. (No. 2) [2015] IEHC 759 para. 57). While the court of course holds the scales equally as betweenapplicants and respondents, it does not hold the scales equally as between social order and disorder. One of the fundamentalPage 2 ⇓objectives of law is to support the functioning of the State and of public institutions, and the court can at least have some regard tothis issue in determining whether the IPO’s reasons for its approach are sufficient and reasonable.Allegation that fair procedures in the context of the enactment of s. 35(11) of the 2015 Act make it necessary to furnishinterview notes.10. As noted above, s. 35(11) of the 2015 Act allows the IPO to take into account post-interview representations as long as they aremade before a report under s. 39(1) of the Act. However, the right to fair procedures does not include a right to notice of what theapplicant is already aware of: see M.A. v. Refugee Appeals Tribunal [2015] IEHC 528, (Unreported, Mac Eochaidh J., 31st July, 2015),C.N.K. v. Minister for Justice and Equality [2016] IEHC 424 (Unreported, MacEochaidh J., 25th July, 2016), B.W. v. Refugee AppealsTribunal [2017] IECA 296 (Unreported, Court of Appeal, 15th November, 2017), per Peart J., A.M.A. v. Minister for Justice andEquality [2016] IEHC 466 [2016] 7 JIC 2923 (Unreported, High Court, 29th July, 2016).11. The State’s written submission argues that “sub-s. (11) does not confer a right to make representations following an interview …sub-s. (11) is simply a gloss on sub-s. (10) clarifying that the IPO may consider representations after an interview but is notobligated to do so”. It seems to me that submission is well-founded. Fair procedures are a minimum not a maximum. Given that theapplicant can bring along a solicitor to take a note as allowed by para. 4.2.1 of the IPO procedures document and given that thisparticular applicant did not request a right to record the proceedings, I cannot consider whether failure to afford that latter option isin breach of his rights. The refusal to furnish the notes is not in itself a breach of the constitutional right to fair procedures, as followsfrom the decision of the Supreme Court in J.R.H. v. Refugee Applications Commissioner. However, J.R.H. does not deal with the EUlaw points so I will go on to consider those separately.Allegation that the duty to cooperate with the applicant under art. 4 (1) of the qualification directive makes furnishing theinterview notes necessary12. The process here is covered by the qualification directive 2004/83/EC effective from 10th October, 2006 after the proceedings inJ.R.H. were instituted. Thus the directive was not relied on in those proceedings. Article 4.1 of the directive says that “in cooperationwith the applicant it is the duty of the Member State to assess the relevant elements of the application”.13. The meaning of the duty of co-operation has already been clarified by the CJEU in Case C-277/11 M.M. v. Minister for Justice andEquality (22nd November, 2012) where the court says at para. 60 that there is no obligation to supply elements of the decision andto seek observations thereon. That applies here. There is no obligation on the IPO pursuant to the duty to co-operate under art. 4(1)to supply the elements of the decision and to provide opportunity for observations thereon, especially where those elements comefrom the applicant himself.14. Quite independently of that basic point, such a right is specifically provided for in art. 17.5 of the recast procedures directive towhich Ireland is not a party and it is not necessary or appropriate to read that right into the qualification directive. Such an approachseems to me consistent with what Hogan J. said in X.X. v. Minister for Justice and Equality [2018] IECA 124 (Unreported, Court ofAppeal, 4th May, 2018) at para. 64. I note in passing that that comment seems to be obiter in the sense that the ratio of the Courtof Appeal decision in X.X., as indeed was the ratio of my decision in that case (X.X. v. Minister for Justice and Equality [2016] IEHC 377[2016] 6 JIC 2409 (Unreported, High Court, 24th June, 2016), was that the action was a collateral challenge to a decision subjectto s. 5 of the Illegal Immigrants (Trafficking) Act 2000 and therefore was covered by s. 5 of that Act. Hence an appeal to the Courtof Appeal did not lie absent a certificate, which was refused, so the earlier part of the judgment of the Court of Appeal in X.X. seemson such a view to be obiter. But nonetheless, obviously, I take it very much into account. However, I would respectfully not beinclined to broaden para. 64 of the Court of Appeal judgment in X.X. beyond its particular terms, namely interpretation of s. 17(7) ofthe Refugee Act 1996. As a general proposition, international jurisprudence can be relied on as persuasive authority, so on ananalogous basis if a provision of positive law that does not apply to Ireland can throw light on a provision that does apply one canpresumably look at that on a purely persuasive basis. Doubly so where the latter provision has an objective meaning throughout theUnion and it is only happenstance that we are considering it in a country not bound by the recast provision. The non-applicability ofthe latter to Ireland is really neither here nor there in terms of its value in interpreting an earlier directive – the issue is whether therecast directive is clarifying and declaratory or as here amounts to a positive amendment. If for example the provision is declaratoryonly it is hard to see a jurisprudential basis why a court should shut its eyes to that. To do so could be an unduly insular approach tojurisprudence. On the other hand, if such a provision is not declaratory but rather creates a positive amendment, that possiblyreinforces the case for saying it should not be read into a provision that does apply to the State and that is the situation here.15. However, leaving that point aside entirely, a further problem for the applicant is that art. 14(2) of the procedures directive 2005clearly allows post-interview furnishing of the notes: “Member States shall ensure that applicants have timely access to the reportof the personal interview. Where access is only granted after the decision of the determining authority, Member States shall ensurethat access is possible as soon as necessary for allowing an appeal to be prepared and lodged in due time”. This did not apply to thisapplicant because it only applies to asylum and therefore is only relevant to the subsidiary protection situation post-31st December,2016, when the two have been taken together. But presumably it has to be regarded as consistent with the duty to co-operate asset out in the qualification directive and indeed consistent with art. 41 of the Charter of Fundamental Rights. It seems to me that thepoint under discussion here is acte clair on the basis it has already been clarified in M.M. As Mr. Donnelly says, M.M. could not havebeen decided the way it was if the applicant’s submission is correct.16. Thus, the applicant’s argument is inconsistent with art. 14(2) of the procedures directive, which would be phrased differently ifthat argument was valid. The same point was made by Cooke J. in B.J.S.A. (Sierra Leone) v. Minister for Justice and Equality[2011] IEHC 381 (Unreported, High Court, 12th October, 2011) at para. 22 “Article 14.2 of the Procedures Directive recognises, however,that the report of the personal interview with the applicant on which the decision of the determining authority on an asylumapplication is based, may be communicated to the asylum seeker after the decision has been adopted. It would be inconsistent withthese arrangements that the duty of cooperation in Article 4.1 [of the Qualification Directive] should be construed as imposing on adetermining authority a mandatory obligation to submit either the report or a draft decision to an applicant for prior comment.”While that was in an M.M- type context, the same logic applies here. If the applicant’s argument is correct then the proceduresdirective is inconsistent with the qualification directive. That seems to me to be an implausible submission that also seems contrary toM.M.Allegation that art. 41 of the Charter on Fundamental Rights requires the applicant to have access to the interview notes17. Article 41(2)(i) of the Charter embodies the right to be heard and art. 41(2)(ii) includes the right to have access to one’s file.Hailbronner and Thym in EU Immigration and Asylum Law, 2nd ed. (C.H. Beck/Hart/Nomos, 2016), at p. 1053 state that theguarantees under art. 41, 42 and 47 “apply to asylum law and can be particularly relevant since they reach further than the ECHR”.However, this appears to be wrong. Article 47 does apply but art. 41 and 42 relate to administration by the European Union itselfrather than directly by member states; see Joined Cases C 141/12 and C 372/12 Y.S. v. Minister voor Immigratie, Integratie en Asieland Minister voor Immigratie, Integratie en Asiel v. M.S., ECLI:EU:C:2014:2081, reaffirmed in Case C-166/13 Mukarubega v. Préfet dePage 3 ⇓police, ECLI:EU:C:2014:2336 WebMindLicenses kft v. Nemzeti Adó at para. 86. These specific findings supersede the earlier generalcomment of the CJEU in M.M. at paras. 83 to 84. Therefore, it seems to me that the art. 41 point is not stateable, is acte clair and isalready the subject of express CJEU jurisprudence.18. Insofar as art. 41 is reflective of general principles of EU law (see Hailbronner and Thym at p. 19), those general principles, arenot so micro-specific as to allow me to hold that the IPO’s approach here is invalid. No authority prior to art. 41 has been produced toshow that the principles of good administration require the entire file of a member state to be handed over without delay in thecourse of a particular process from which there is a subsequent right of appeal. In the document entitled “Explanations relating to theCharter of Fundamental Rights”, 2007/C308/02 the relevant previous case law underlying art. 41 is referred to. Mr. Conlon identifies asparticularly relevant the decision of the ECJ in Hauptzollamt München-Mitte v Technische Universität München Case C-269/90 (21stNovember, 1991) where at para. 25 the court refers to the right to have documents taken into account during the actual procedure,in that case before the Commission. However, that that is not a controversial proposition and is very familiar in terms of the right tofair procedures, but it is only a general statement. There is no breach of fair procedures to decline to give information to an applicantthat that applicant already has or potentially has access to, such as notes of an interview at which he was present or at which hissolicitor could have been present.19. Even if I am wrong about all the foregoing and the right to good administration involves access to the file held by nationalauthorities when implementing EU law, that does not necessarily mean immediate and unrestricted access. Indeed, that qualification isquite obvious. The general principle along those lines does not seem to me to provide any basis for a finding that the IPO is requiredto hand over the notes at this precise stage of the process. As noted by Margrét Vala Kristjánsdóttir in “Good Administration as aFundamental Right” Icelandic Review of Politics and Administration Vol. 9 Issue 1 p. 237 at p. 245:“The doctrine of direct effect andsupremacy requires states to implement and apply law in accordance with EU law. The doctrine of procedural autonomy allowsMember States to decide by whom and how the implementation takes place. … The scope of the right to good administration asdefined in Article 41 seems to coincide with this, limiting the applicability of this right to the bodies and institutions of the Union andthereby leaving the procedures to the Member States.”20. Thus, that a national procedure whereby the notes are handed over after the report to facilitate any appeal from an IPO decisionis not something that I can hold to be invalid. Also as noted above, the applicant’s argument is inconsistent with art. 14(2) of theprocedures directive. Indeed, if the applicant is correct, art. 14(2) is invalid. It seems to me that no basis has been made to suggestthat. It is much more compelling to read art, 14(2), as Mr. Donnelly submits, as legislation which provides for access to the file andregulates the manner in which it is to be done. The applicant’s reading of art. 41, even if it is applicable to the situation, which itisn’t, is absolutist and has no support in authority so again this point is acte clair.Order21. The EU law points are clearly insubstantial and acte clair in that they have already been determined by the CJEU, so a referencedoes not arise, and the national law points have already been determined by the Supreme Court in J.R.H., so the order will be that theproceedings be dismissed.

 

 

A and B v The International Protection Appeals Tribunal and The Minister for Justice and Equality

S:AP:IE:2021:000092 and S:AP:IE:2021:000090

High Court [Approved]

18 July 2022

unreported
[2022] IESC 35
Mr Justice Peter Charleton

July 18, 2022

JUDGMENT
1. At issue are three questions, in essence, which will decide this appeal:

• Firstly, is there a statutory lock whereby if an applicant for refugee status or subsidiary protection is refused by the International Protection Office, but there is no appeal lodged in time to the International Protection Appeals Tribunal, and where the Minister declares the person no longer to be an applicant, does the International Protection Act 2015 prohibit any re-entry into the system?
• Secondly, such a statutory lock does exist, is there any discretion in the Minister to revise a decision that a person deemed no longer an applicant may again enter the appeals system?
• Thirdly, where the legislation on its face does not provide for any residual discretion in the Minister to enable a late appellant who has been declared no longer to be an applicant, do considerations of constitutional construction enable such a discretion or does the legislation bind, to the exclusion of any executive power of the State, the Minister into the decision to remove applicant status and thus bar any appeal to the IPAT?
The statutory lock
2. A person arriving in Ireland who claims that he or she is a refugee or that their country of origin is in such a state of chaos that they are entitled to subsidiary protection against serious violence will first apply to the International Protection Office. The applications in these cases exemplify what is involved. In one case a claim of a neighbourhood dispute resulted in a man leaving for Ireland, with his wife remaining apparently to see a child through education. In the other, a dispute at work led to claims of general threat. Both applications were examined by the IPO and were rejected. Neither applicant appealed, which is an absolute right, to the IPAT. As to what the excuses might be, that is perhaps best left aside as these have nothing to do with this appeal. What is established as a certainty is that upon refusal, an applicant, under s 41, may appeal in writing, giving grounds of appeal, and may seek an oral hearing. The time limits are prescribed by the Minister through regulations made under s 77 of the Act. An appeal is required if someone is to remain in the system as an applicant, since as s 41(2)(b) provides, that step must be taken “within such period from the date of the sending to the applicant of the notification under section 40 as may be prescribed under section 77”.Section 41(4) enables the Minister “having regard to the need to observe fair procedures, prescribe procedures for and in relation to appeals”. Hence, matters are governed by Statutory Instrument No. 116/2017, The International Protection Act 2015 (Procedures and Periods for Appeals) Regulations 2017. The Minister need only consult the chairperson of IPAT to make or to revise the time limits. As the Regulations now stand, Article 3(c) states thst an applicant who fails before the IPO has “15 working days, for the purposes of section 41(2)(a)” to appeal to IPAT. But, ostensibly, being outside that may enable readmission since IPAT may extend time where an “applicant has demonstrated that there were special circumstances as to why the notice of appeal was submitted after the prescribed period had expired” and that “in the circumstances concerned, it would be unjust not to extend the prescribed period.”

3. Notwithstanding that the Act has replaced and revised the basic ground rules of several pieces of legislation, and that it is now no longer necessary to have applied and to have been refused refugee status before making a claim for subsidiary protection, and that the legislation strives for comprehensiveness, there are always teething problems. This present case is one such problem. Other than genuine issue, it is the duty of legal representatives to make this legislation work smoothly and inventive arguments contrary to its terms should be disposed of.

4. The statutory lock is argued by the applicants to arise, for the purpose of making a consequent argument as to unconstitutionality, in consequence of s 2(2). There has to come a point where a person is no longer entitled to make a claim that they should be given international protection in Ireland. Logically, that would arise where their claims have been decided to be unfounded, or lacking credibility, and where any appeal has been disposed of, or where they have left the country or just decided that their claims are so wanting in merit that they give up. Legislatively, that removal of any status that comes from being an applicant for international protection comes from s 2(2) which provides that a “person shall cease to be an applicant on the date on which” the Minister refuses “to give the person a refugee declaration” or “subsidiary protection” or is given general leave to remain or on finding out that they have already applied in another Member State of the European Union, the person “is transferred from the State in accordance with the Dublin Regulation.” By failing to appeal a finding of the IPO, either within the time limits for appeal or by not attending a hearing without proffering an excuse, a person may be deemed to have withdrawn the appeal and hence will no longer be an applicant under s 2(2). In this respect, the analysis of Barrett J is unimpeachable. This is as stated in the letter written to one of the applicants, to the effect that “[t]he recommendation under s.39 has been superseded by the Minister’s decision under s.47 such that an appellant no longer has a recommendation simpliciter under s.39 against which to appeal.” The logic being that the IPO has recommended that an applicant not be given refugee status and the time for appeal being up, the process is come to an end.

5. Section 45 stands in contrast. This provides that where a date for an oral hearing is set by IPAT and an applicant “fails, without reasonable cause, to attend an oral hearing at that date and time fixed” then the application is deemed withdrawn unless “not later than 3 working days” later the applicant furnishes “an explanation for not attending … which the Tribunal considers reasonable in the circumstances”. Thus, an applicant has 15 days to appeal from being notified by the IPO, and, when he or she appeals, if he or she misses an oral hearing date set by IPAT, there are still three working days in which to revive an appeal, once a reasonable excuse is proffered. Regarding a situation where an applicant is refused a recommendation of refugee status by the IPO, 15 days later the Minister may deem an appeal withdrawn and that means, on the argument proffered by both sides on this appeal, that an applicant ceases to be an applicant and thus IPAT has no jurisdiction to consider any appeal.

6. The argument for unconstitutionality centres on the inflexibility of the closure of an appeal, that it cannot be unlocked either by any action of the former applicant or by the Minister. Situations are posited, and again no comment is made on the current two appeals, where a person, on getting a letter from the IPO, may fall dreadfully ill, may struggle in hospital for two months, as some have during the Covid-19 pandemic, emerge weakened and be unable to attend to anything. Alternatively, through stress, a person may suffer a breakdown and be unable to cope with their affairs in any meaningful way beyond basic living.

7. As against such extreme situations, gainsaying that for a genuine fugitive from violence or persecution, that appeal to IPAT will be the most important event presenting in their life and to neglect the simple step of appealing is incomprehensible save in those extreme circumstances. There is a shared burden here: that of the State in providing proper procedures and following country of origin information meaningfully and that of the applicant in following through and presenting such data as assists in a sound determination. The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee States and Guidelines on International Protection provides at para 196:

It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents. Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.

8. In domestic law, the obligation to comply with the refugee application procedure rests on the applicant under s 38(1). Recital 11 of Council Directive 2005/85/EC, which is given effect in part by the 2015 Act, states that it is “in the interest of both Member States and applicants for asylum to decide as soon as possible on applications for asylum.” Finality in the protection application process is vital, both for applicants to ensure that they are not kept in the dark as to their status within this jurisdiction during this process, and for the State in seeking to adequately protect the fair procedure rights of applicants. Delay in the protection application system prior to the 2015 Act was significantly criticised, particularly the requirement for an individual to have been refused refugee status prior to applying for subsidiary protection; Okunade v Minister for Justice and Others[2012] IESC 49, Clarke J at [8]. The emphasis on efficiency in the 2015 Act informs the time limits, seeking to ensure that any ability to apply for an extension of time to appeal is not utilised to slow the entire system, but rather used solely to protect the fair procedures rights of those seeking protection. At the same time, some reasonable method of appeal is also central for ensuring that an individual’s fundamental rights are protected within the international protection framework, as recognised by the United Nations Handbook, which states at para 192 that an applicant, upon being not recognised as a refugee “should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial”. These procedures are provided for in the legislation and it is only the extremes of misfortune being enabled as a way through what is otherwise a justifiable and necessary end to the process that is in issue.

Executive discretion on borders
9. Central to nationhood is the ability to control borders. That is not to say that in a democratic society, the excesses of totalitarian zealotry may be mirrored to keep citizens from emigrating, not matter how vital their role for society might be perceived to be; State (M) v Attorney General[1979] IR 73. Consideration of the plight of occupied countries demonstrates the unwished introduction of migration by the conquering state in order to diminish the authority of the local population and to dilute culture, language and customs. It is inescapable that control over immigration vests in the State as a cornerstone of governmental power. Hence, on the existing judicial pronouncements, which have never been doubted, the executive branch is imbued with the power “to control the entry, the residency and the exit, of foreign nationals” into Ireland, per Denham J in Bode v Minister for Justice[2007] IESC 62 at [135]. As noted by Gannon J in Osheku v Ireland[1986] IR 733, control over immigration constitutes a fundamental right of the State and thereby warrants an aspect of the separate power of government recognised in both domestic and international law; Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999[2000] IESC 19 at [82]. Similarly, Baker J in National Employee Development Training Centre Ltd v Minister for Justice and Equality[2015] IEHC 140 at [23] underlines the proposition that the executive has an “inherent function to control immigration”, as well as noting the limited role of the courts in engaging with this function to cases relating to a “challenge to a decision by the Minister in an individual case to refuse permission to be in the State”. The breadth of this executive discretion is highlighted by Clark J in Khalimov v Minister for Justice & Equality[2010] IEHC 91 at [19] in stating that the Minister may determine immigration policy and is “entitled to adopt, formulate, tighten or loosen that policy in accordance with the evolving needs of the State as determined by the holder of that office.” Hence, the Minister will always have a power to either grant permission to remain in the State on humanitarian grounds, or to implement government policy whereby immigration is to be encouraged through the grant of visas for the pursuit of particular forms of work.

10. Could it be said, for instance, that, absent s 49, the Minister would not be entitled to grant permission to a failed asylum seeker to remain in the State? Or that the Minister’s power in that regard comes from or is completely circumscribed by the legislation? That would be an untenable proposition. But, here the issue is as to whether the decision of the Minister to deem an application withdrawn, which happens only on communication from the relevant bodies set up to assess the applicability of obligations for international protection, is removed by the terms of the legislation. Central to that issue, as to any question of statutory interpretation, is the meaning of the provisions as set against the backdrop of the power of the State to halt those at its borders or to remove, subject to the principle of refoulement , those who are illegally present. Given the amplitude of that power as an aspect of executive discretion central to the exercise of the executive power of the State by the Government, under Article 28.2 of the Constitution, that issue refines itself into one where it must be asked whether by express words, the discretion of the Minister to direct the asylum process is utterly removed?

11. While executive discretion has historically been accepted to not extend to “repealing or overriding any legislation”, per O’Donnell J in NVH v Minister for Justice and Equality[2017] IESC 35, discretion is undoubtedly retained in areas fundamental to the executive power unless expressly overridden by statute. Similarly, Hogan J held in Mac Donncha v Minister for Education[2013] IEHC 226 that permitting the executive to disapply the law would be “tantamount to saying that the Government could in effect secure a repeal of the law without the necessity of legislation” at [23]. However, where this threshold is not met through the exercise of executive discretion, particularly in the context of a core executive function such as the formulation of immigration policy, the Government need not rely on statutory authority to exercise executive power, see Kelly: The Irish Constitution (5th edition, Hogan, Whyte, Kenny and Walsh, Dublin 2018) at p 507. Where statute purports to limit an exercise of the executive power of the State, it must do so in clear terms, and it must do so with greater certainty than is found in the 2015 Act.

12. Certainly, as regards a finding by the IPO or IPAT that a person has applied due to flight from persecution or a situation of serious random violence following the breakdown of all social order in their country of origin, the power of decision-making previously exercised within the Department of Justice and Equality has passed to the statutory bodies. Or if it has not, if some residual power remains to the Minister, would it not be unreasonable and disproportionate for the Minister to take any decision to the contrary? Some sections are merely declaratory of what has been the law before enactment of any legislation. Hence, Ireland entered into treaties and other international obligations designed for the protection of those fleeing persecution and random widespread serious violence; the basis being that the State would not return to such countries those within our border. That backdrop informs s 50 which merely declares the prohibition on refoulement and to s 50A which deems an application to have been made for international protection where on a consideration of country of origin information the Minister sees those dire consequences even for people whose applications have failed.

Discretion
13. The danger is one of unintended consequences, against which Henchy J warned in Minister for Industry and Commerce v Hales[1967] IR 50, 76. While the issue there was a statute limiting by definition but ostensibly expanding that reach through statutory instrument, Henchy J quoted Maxwell on Interpretation of Statutes (11th edition, 1962) at p 78 to this effect:

One of these presumptions is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication, or, in other words, beyond the immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law, without expressing its intentions with irresistible clearness, and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual or their natural sense, would be to give them a meaning other than that which was actually intended. General words and phrases, therefore, however wide and comprehensive them may be in their literal sense, must usually be construed as being limited to the actual objects of the Act.

14. To like effect see Bederev v Ireland[2016] IESC 34, [2016] 3 IR 1; O’Connell v Governor and Company of the Bank of Ireland[1998] 2 IR 596; context both within the enactment and within where the enactment fits in the legislative body being information as to proper construction; Bennion, Statutory Interpretation , (6th edition, London, 2013) 540. The Constitution, however, is more than a context: it is an imperative to just disposal of admissible grievance through justice and towards true social order through the rule of law and it is the fundamental delimitation of legal boundaries beyond which jurisdiction is exceeded. While, generally, the penumbra of executive power is removed and made to run on fixed legislative rails through the enactment of statutes, it remains that wide general powers need be circumscribed by clear words. The argument here is that the Minister can do nothing: that the Minister cannot, if written to, revise the abolition of status as an applicant and treat the failure to appeal as merely being suspended. In the light of the clear criteria for which IPAT would, if enabled, consider the excuse for a late appeal, if credible, the possibility emerges from the legislation itself for the Minister to suspend the inadmissibility and to seek an expert assessment. The reality of the examples given, of severe physical or mental illness, are an imperative to just disposal in genuine cases. As noted, excuses would have to be extreme to enable admissibility and manifestly would be predicted to be rare. But, such cases can be accommodated.

15. As an alternative, a constitutional interpretation is not impossible; but is certainly demanded if not contradicted. Clear words are needed to completely remove the Minister’s discretion and these are not to be found in prohibiting the exercise by the Minister of either an executive decision to suspend the operation of the prohibition on pursuing an appeal, under Article 28.2, or enabling the correction of internal mistakes. Were the argument presented here to be correct, a decision to be made because of a mistake in time — say due to not reckoning a leap year — or as to a name — the application of a decision to a wrong file — would result in the need for the Minister to apply to the High Court for the internal correction of error. This is not a court of record that is being dealt with here, but a department of State. The ease with which such an argument as to correction undermines a contention of inflexibility, and the importance of the power of Government over immigration, militate against an interpretation which would undermine just solutions in extreme cases.

16. In the absence of a clear restriction by the legislature of the Minister’s actions in relation to the suspension of a s 47 order, it cannot be said that such a decision lies outside of the scope of the executive power, and such an interpretation would be an excessive restriction of a fundamental State power by this Court. The inherent nature of this power has been “used to uphold a variety of executive actions taken without legislative authorisation in the immigration context”, see Kelly: The Irish Constitution (5th edition, Hogan, Whyte, Kenny and Walsh, Dublin 2018) at p 169. The Minister’s discretion in this area is significant, and undoubtedly encompasses the possibility of suspending an order made under s 47 for the purposes of allowing the appellants in this case, or any other persons subject to such an order, to seek an extension of time and appeal the recommendation of the IPO through IPAT, thereby ensuring the continued protection of their rights to fair procedures and a just remedy.

17. In the alternative to this analysis, the Minister may amend the regulations to enable a discretionary appeal.

18. In either case, however, what should be remembered is that what is involved in enabling an appeal to IPAT is a suspension of a valid Ministerial order and not that the Minister is required to overturn that decision. If IPAT does not find that there are exceptional circumstances for not pursuing an appeal, or if admitted to IPAT and rejected, all prior orders such as deportation are immediately effective.

Application
19. If the interpretation of the 2015 Act urged by the respondents is accepted, thereby restricting the Minister’s ability to temporarily suspend an order under s 47 of the Act, there is no recourse for appellants who, through no fault of their own, failed to appeal a recommendation of the IPO within the time limits set by the Minister. The difficulty of such an interpretation is highlighted when considering a case of genuine mistake, in which both the applicants and the Minister accept that, for example, the wrong individual has been indicated in the order. It would be contrary to a just disposal to view the Minister as lacking the discretion to suspend such an order, as such discretion clearly falls within the scope of the inherent executive power to control immigration policy.

20. The Minister undoubtedly retains the power to temporarily suspend an order where it has been indicated that an application for an extension of time is to be made by the subject of the order, thereby allowing IPAT to consider whether the application, pursuant to the stringent test detailed in SI No 116/2017, should be accepted. If the application is extended and a subsequent appeal is successful, thereby changing the recommendation made by the IPO, the Minister similarly retains a discretion to rescind the order made under s 47, acting on the fundamental state right to exercise control over who is entitled to enter and reside within the State. Such a decision would, as an exercise of executive power under Article 28.2, be subject to the well-established and onerous test of clear disregard of constitutional rights; see Boland v An Taoiseach[1974] IR 338, McKenna v An Taoiseach (No. 2)[1995] 2 IR 10 and the concurring judgment of Charleton J in Burke v Minister for Education and Skills[2022] IESC 1.

Result
21. For this reason, the Act cannot be interpreted as unconstitutional. The matter should be returned to the Minister to inform her of an intention on the part of both appellants to seek an application to extend time for filing an application, and a decision can be made to uphold or alter the s 47 order on foot of this information.

© Copyright in court judgments is the copyright of the judge who delivered it. This is the full text of the judgment that appears on www.courts.ie. They do not purport to be the authorised version. The authorised version of a judgment is that signed or approved by the judge or court concerned and retained in the court records. The judgments are liable to editorial revision or correction.

Thomson Reuters homepage
24-hour customer support +44 345 600 9355 (calls at a local rate), Customer Service

Round Hall is part of Thomson Reuters. © 2023 Thomson Reuters (Professional) Ireland Limited