Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED) AND IN THE MATTER OF THE INTERNATIONAL PROTECTION ACT 2015

RESULT: The Court does not grant leave to the Applicant to appeal to this Court directly from the High Court.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 21st December, 2018

DATE OF ORDER: 21st December, 2018

DATE OF PERFECTION OF ORDER: 21st December, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 20th March, 2019 AND WAS NOT IN TIME.

General considerations

1 The general principles applied by this court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134, (Unreported, Supreme Court, 6 December 2017) and in a unanimous judgment of a full court delivered by O’Donnell J. in Quinn Insurance Ltd. v. PricewaterhouseCoopers [2017] IESC 73, [2017] 3 I.R. 812. The additional criteria required to be met in order that the so-called leapfrog appeal directly from the High Court to this court can be permitted were addressed by the court in Wansboro v. Director of Public Prosecutions [2017] IESCDET 115, (Unreported, Supreme Court, 20 November 2017). Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2 Furthermore, the application for leave filed and the respondent’s notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in any detail. No aspect of this ruling has precedential value as a matter of law.

Decision

3 The applicant seeks leave to appeal directly to this court pursuant to Article 34.5.4° of the Constitution from the decision of the High Court (Humphreys J.) which dismissed his application for certiorari quashing a refusal of subsidiary protection pursuant to the International Protection Act 2015 (“the 2015 Act”) (see [2018] IEHC 792). The principal ground argued was that during his interview, the applicant contended that he was unable to give dates of many of the key incidents in his account and said that he was “not mentally okay”. The International Protection Officer rejected the credibility of the applicant’s account. The applicant appealed to the International Protection Appeals Tribunal, where he was represented by counsel and solicitor, and on 24 April 2018 the International Protection Appeals Tribunal (“the IPAT”) rejected the appeal. The tribunal concluded that the applicant’s “known and externally verified actions show that his word is not a trustworthy source”. The tribunal also noted that no medical or psychological evidence was proffered.

4 The principal ground on which the judicial review was advanced was that the tribunal was in breach of the UNHCR Handbook recommendations, the 2015 Act, and also the CFREU and the ECHR because, although having an inquisitorial role, the IPAT had not itself investigated the applicant’s condition. The High Court judge rejected the application on a series of grounds. First, it found that the applicant had not pleaded any case that the tribunal erred in not applying a special procedure for mentally and emotionally disturbed applicants as set out in the UNHCR Handbook. Rather, the applicant had pleaded that the tribunal had dismissed out of hand the applicant’s explanation of suffering mental illness or disability, and therefore acted in breach of the UNCHR Handbook. Second, the judge concluded that the applicant had not made the point to the tribunal, where he was represented by lawyers. Third, there was no evidence, even at the High Court stage, that the applicant had any condition. Fourth, the judge observed that the tribunal was not fully inquisitorial, but rather operated a well-established shared duty which did not displace the applicant’s primary responsibility to verify personal factors. The High Court judge considered that the mere use of the word inquisitorial as a short hand in some of the case law does not sweep away the well-established meaning of the shared duty. He considered that an application broadly fell into two categories: the situation in the country of origin, and the factors personal to the applicant. Member States had an investigative function with regard to the information relating to situation in the country of origin, and that this was closer to a traditional understanding of the inquisitorial function. A Member State may be better placed than an applicant to get such information or documentation, but the primary responsibility to describe facts and events which were personal to the applicant fell on the applicant himself, and the State only had a limited role in supplying the deficit.

5 The distinction made is not absolute, but rather a statement of the obvious, and is qualified by the observation that the production of information in relation to the applicant is the primary (but not the sole or exclusive) function of the applicant who is, by definition, normally best placed to know such matters. The State’s role in supplying information about the applicant is limited, but not excluded. In this case, it is submitted that the statement in the applicant’s interview that he was not “mentally okay”, gave rise to an obligation on the tribunal to investigate itself the potential that the applicant was mentally or emotionally disturbed. However, this contention itself might be thought to require some evidence to be put before the court that any such inquiry would have led to a finding of mental illness or disability. The applicant’s case went through a number of mutations before the High Court and was comprehensively rejected by that court. This court does not consider that the case can properly be said to raise any issue of law of general public importance. Accordingly, leave will be refused. In the circumstances it is not necessary to address the question of an extension of time to bring the application

And it is hereby so ordered accordingly.