High Court: Husband and wife have application for judicial review of IPAT decisions dismissed

About this case:

• Citation:
  [2018] IEHC 512
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Richard Humphreys

Describing the husband’s “highly improbable” story of his escape from custody in Ukraine as “cliff-hangingly filmic”, Mr Justice Richard Humphreys was satisfied that even if the findings of the tribunal in regard to the applicants’ credibility were wrong, the tribunal had considered the change of regime in Ukraine to be an independent reason for the applicants not being currently at risk.

Background

The applicants, RS and IH, are a husband and wife from Ukraine.

In 2012, the husband applied for an Irish visa under an alternative name, which was refused. Thereafter, the applicants came to Ireland and claimed asylum, falsely denying that the husband had applied for an Irish visa. The claims were rejected, and unsuccessfully appealed to the Refugee Appeals Tribunal. At this stage, it was accepted that the husband had applied for an Irish visa.

The applicants’ claims for subsidiary protection were also rejected, and in October 2017 their appeals to the International Protection Appeals Tribunal were dismissed.

Thereafter, the applicants were granted leave for the present proceedings, seeking orders of certiorari of the IPAT decisions in relation to subsidiary protection.

High Court

Mr Justice Humphreys explained that the IPAT decisions were well organised and illustrated the “commendable option” of considering matters on an “even if I am wrong” basis (held to be legitimate in S.I. v. Minister for Justice and Equality [2016] IEHC 112 [2016] 2 JIC 1517). Mr Justice Humphreys said that this enabled “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”.

In claiming asylum, and then subsidiary protection, the husband claimed that in December 2013 and January 2014, he was arrested, detained and ill-treated due to involvement in protests in Ukraine. The wife claimed that in February 2014, soldiers raped her in their house.

Mr Justice Humphreys highlighted that, in addition to consistency issues with medical reports, the husband’s name change, and the lies regarding the husband’s previous application for an Irish visa, the husband’s explanation of how he escaped from custody was referred to by the tribunal as being “highly improbable”. In the High Court, he described the husband’s story as “cliff-hangingly filmic”.

The tribunal decision stated that even if the findings on credibility were wrong, that the new regime in Ukraine was a “game-changer, and gave rise to a situation whereby the applicants were no longer at risk”. In any event, it was held that the armed conflict in Ukraine applied to a different region to the applicants, and furthermore the claim that harm would be caused by military service did not constitute serious harm in and of itself (B.M. (Eritrea) v. Minister for Justice and Equality [2013] IEHC 324 considered). There were also no aggravating factors such as severe punishment for draft evasion of military service to show risk of severe harm under this heading of the husband’s claim.

In considering the wife’s claims, the tribunal found that her dismissal of counselling in relation to the account of rape militated against her credibility. Mr Justice Humphreys said that taking this into account was “generally not” within what was open to the decision-maker, “because seeking counselling is only one of a number of possible reactions to such a situation”. However, Mr Justice Humphreys was satisfied that this was not the only basis of the decision, as it was accepted that the wife had misled the protection process, and gave evidence which was inconsistent to the evidence given by the husband. In the circumstances, Mr Justice Humphreys said that “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”.

Independent to the finding of credibility, the tribunal had also held that even if this was wrong, the regime change in Ukraine meant that she was not currently at risk. Mr Justice Humphreys was satisfied that the applicants had not shown how the reliance placed by the tribunal on the regime change was invalid.

Mr Justice Humphreys was satisfied that the benefit of the doubt only applied if credibility was accepted, and that in any event, the tribunal gave an independent reason for the absence of risk to the applicants.

In all the circumstances, Mr Justice Humphreys dismissed the applications for judicial review.

• by Seosamh Gráinséir for Irish Legal News