Supporting Documents:

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES

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: 7th December, 2018 and 25th February, 2019

DATE OF ORDER: 7th December, 2018 and 25th February, 2019

DATE OF PERFECTION OF ORDER: 11th December, 2018 and 25th February, 2019

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

1. This determination concerns a decision of the High Court of 7 December 2018 whereby the applicant’s judicial review of a decision of the International Protection Appeals Tribunal was dismissed, and concerns the subsequent refusal to grant a Certificate for Leave to Appeal to the Court of Appeal, as provided for in s 5(3)(a) of the Illegal Immigrants Trafficking Act 2000, by order of that Court dated 25 February 2019. The proceedings before the High Court were joined with another applicant, M.E.O., who also sought leave to appeal to this Court which is the subject of a separate determination, [2019] IESCDET 165. This determination should be read in conjunction with that.

2. The applicant is a Nigerian national who arrived in the state in August 2015. Claiming persecution or serious harm by reason of his sexual orientation in his home country, he applied for asylum on 1 September 2015. This application was refused by the Refugee Applications Commissioner on 29 November 2016. He also sought subsidiary protection, which was rejected on 29 August 2017. This refusal was appealed to the International Protection Appeals Tribunal on 28 September 2017. His appeal was refused on 14 March 2018. The applicant was granted leave to seek certiorari in relation to the decision of the International Protection Appeals Tribunal on 16 April 2018. It is this decision that formed the basis of his judicial review proceedings and is at issue in this determination.

3. The veracity of the applicant’s claim to be of a sexual orientation that is problematic in Nigeria was called into question by the IPAT and the application was subsequently refused. The decision of the IPAT at paragraph 4.31 notes “inconsistencies, negative credibility findings and implausibility surrounding substantial parts of the appellant’s evidence.” No comment as to the credibility or validity of the applicant’s claim will be made in this determination. This application for leave to appeal focuses on the standard of proof that should be applied in claims relating to international protection.

4. The applicant initiated judicial review proceedings in 2018. These, along with the aforementioned joined matter, were heard before Humphreys J in the High Court. The applicant argued that the correct standard of proof in cases such as this is “a reasonable degree of likelihood” or a “reasonable chance” as opposed to the civil standard of the balance of probabilities, or indeed the balance of probabilities with the benefit of the doubt being extended to the applicant. The legal basis for this proposed test is not clear – in his judgment, Humphreys J notes that there is no clear basis for this test in EU law, international law, European Human Rights law, or in Irish law. Humphreys J was of the opinion that the proceedings did not comply with Order 84 rule 20(3) of the Rules of the Superior Courts and remarked that the failure to particularise the legal basis of the claim means that it is a “potentially permanently mutating case which is, on these pleadings, entirely lacking in particulars.” He further held that, having analysed the facts of the applicant’s case, he was manifestly not an applicant “that cleared the reasonable degree of likelihood test but fell just short of the balance of probabilities” and thus that application of the proposed test would not in fact have resulted in a different outcome to the applicant’s appeal before the IPAT. The judicial review application was thus dismissed. A certificate for leave to appeal to the Court of Appeal was refused by order of 25 February 2019.

5. The applicant seeks to raise a number of points in respect of the reasonable degree of likelihood test. He asserts that the test applied in the UK is sometimes referred to as such. He submits that the objective of the Common European Asylum System is to ensure consistent assessment of protection applications across all member states of the EU so that one state is not more favourable to applications than another. He claims that this jurisdiction applies a standard of proof (that of “the balance of probabilities coupled, where appropriate, with the benefit of the doubt”) that significantly differs from other member states, thus jeopardising this objective. He submits that it is of general public importance that the standard applicable in Ireland be clarified and formulated in line with EU law. The applicant further asserts that in light of the serious consequences faced by those of particular sexual orientations in certain countries, the interests of justice require that the correctness of the standard is clarified so as to provide guidance to decision-makers in international protection cases. The applicant also requests that a reference be made to the CJEU as to whether EU law precludes a Member State from applying a standard of proof in the assessment of claims for international protection of “the balance of probabilities, couples where appropriate with the benefit of the doubt” and, if so, which standard of proof should be applied.

6. The respondents refute the suggestion that the standard of proof applicable in Ireland is incorrect. They further assert that in circumstances where the alternative standard contended for would also have resulted in the dismissal of the applicant’s appeal, it is not in the interests of justice to grant leave to appeal in this matter. The respondents submit that the applicant has sought to raise issues that were not heard or determined before the High Court and as such should not be allowed to rely on them in this appeal. The respondents reject the contention that a reference to the CJEU is needed.

7. In arguing that there are exceptional circumstances warranting an appeal directly from a decision of the High Court, pursuant to Article 34.5.4 of the Constitution, the applicant states that he wishes to appeal the refusal to issue a certificate of appeal to the Court of Appeal, and challenges the lawfulness of s 5(3)(a) of the Illegal Immigrants Trafficking Act 2000 and the procedures that arise therefrom. In this regard, the respondents claim that the application for leave to appeal does not correctly address the requirement of identifying exceptional circumstances, and instead seeks to challenge legislation, raising points that were not brought before the High Court.

8. 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 33rd 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 and in a unanimous judgment of a full Court in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

9. The application for leave filed, and the respondent’s notice thereto, are both 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 further detail.

10. The court is not one for the correction of error. No aspect of this ruling has precedential value as a matter of law.

The Court is not convinced that a point of law of general public importance arises. The applicant has not shown that the standard of proof applied by the first named respondent in this case was wholly inconsistent with EU, international, ECHR or domestic law and has not provided compelling reasons as to why this court should endorse a standard of proof formulated along the lines of “a reasonable degree of likelihood.” Leave to appeal will thus not be granted.

AND IT IS HEREBY ORDERED ACCORDINGLY