About this case:

• Citation:
  [2024] IEHC 73
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

Delivering judgment for the High Court, Mr Justice Anthony Barr opined that “I do not think that the necessity or appropriateness of obtaining a further medical report, should depend on the happenstance of an application in that regard having been made by or on behalf of the applicant. In other words, the further medical report does not become irrelevant, merely because it was not asked for by the applicant.”

Background

The applicant, an accountant from Nigeria, arrived in Ireland in March 2022 seeking international protection. He claimed that he was a member of the Indigenous People of Biafra (IPOB) political group, and that he had suffered physical violence at the hands of the state’s security force, DSS, whilst attending demonstrations.

The applicant stated that on 6 January 2022 he went into Lagos city and that upon his return, he was informed by his neighbours that the DSS had been looking for him in his absence and had taken his friends into custody. He claimed that the DSS had been searching for him again on 30 June 2022.

In the course of his application for international protection, the applicant gave detailed information concerning his political involvement and of the beatings visited upon IPOB members by the DSS, although he did not explicitly state that he had been the subject of such violence.

At his hearing before the first respondent on 18 November 2022, the applicant claimed that he had scars and/or marks on his legs, left shoulder and hands, which had been sustained as a result of attacks on him by DSS in 2019, 2020 and 2021. In the course of the hearing, he rolled up his trousers to demonstrate the marks on his legs.

In her decision of 21 February 2023, the Tribunal member rejected inter alia the applicant’s assertion that his scarring had been caused due to his IPOB involvement, as there was no evidence that he had received medical treatment for those injuries in Nigeria, he had not mentioned the injuries to his GP in Ireland and so they had not featured in the medical report tendered to the Tribunal which described his anxiety and depression, nor had he mentioned his injuries in the course of his interview for international protection.

On the basis of her findings of fact and in light of the country-of-origin information (COI) submitted, the Tribunal member was not satisfied that the applicant had suffered persecution nor that he had a well-founded fear of same if returned to Nigeria, and accordingly, his application was rejected.

The applicant appealed to the High Court.

The High Court

The High Court considered that the applicant’s challenge consisted of two issues: whether the Tribunal member should have adjourned the hearing to enable a medical report to be obtained in relation to the applicant’s scarring, and whether the Tribunal member properly considered the country of origin information (COI) before her and if she did, the rationality of her conclusions as to the absence of a well-founded fear of persecution or serious harm on part of the applicant.

In respect of the first issue, Mr Justice Barr considered that s.23(2) of the International Protection Act 2015 gave the Tribunal the power to require an applicant to be examined and to procure a medical report in respect of an applicant where a question arises as to their physical or psychological health.

Recognising that the applicant had failed to mention his injuries until his appearance before the Tribunal, the court noted the first respondent’s duty of active cooperation with international protection applicants pursuant to s.28(2) of the 2015 Act and that in X v IPAT (Case C-756/21), the Court of Justice of the European Union made it clear that this duty extended to the obtaining of a medico-legal report if deemed relevant or necessary by the deciding officer.

Mr Justice Barr highlighted that this duty is also present in the “Basic Principles” of the United Nations High Commissioner for Refugees (UNCHR) handbook, wherein it is stated that while the burden of proof rests on the applicant, in some cases it may be for the examiner to use all the means at his disposal to produce the necessary evidence in order to adequately assess the application.

Remarking that “if it could be established that on the balance of probabilities, the scarring or marks on his body, had been caused by beatings, that would have constituted strong supporting evidence of his overall narrative”, the judge considered that “I do not think that the necessity or appropriateness of obtaining a further medical report, should depend on the happenstance of an application in that regard having been made by or on behalf of the applicant. In other words, the further medical report does not become irrelevant, merely because it was not asked for by the applicant.”

The court continued: “One has to remember that this applicant was not only a vulnerable person due to his status as a person seeking international protection, but he was additionally vulnerable due to the fact that he suffered from depression and anxiety, as documented in the medical report furnished by Dr Halpin, which was accepted by the Tribunal.”

The court determined that in light of the physical evidence proffered by the applicant at his hearing, and in light of the duties upon the Tribunal, “the Tribunal ought to have at least offered the applicant the opportunity to either obtain his own medical report, or it could have offered that the Tribunal would obtain a medical report in the nature of a Spirasi report on the marks and scarring on the applicant’s body. That would only have required a short adjournment of the hearing for a number of weeks, to enable such a report to be obtained.”

Setting aside the first respondent’s decision on that ground, the court confirmed that in respect of the second issue, the Tribunal member had clearly regarded the COI and had quoted extensively therefrom, and that based on her findings of fact, her decision was not irrational.

Conclusion

Accordingly, the court set aside the decision of the first respondent and remitted the matter for re-hearing before a different Tribunal member.

T.U. v. International Protection Appeals Tribunal & Anor [2024] IEHC 73