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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O v Minister for Justice & Equality & ors [2019] IEHC 761 (14 November 2019)
URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_761.html
Cite as: [2019] IEHC 761
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THE HIGH COURT
[2019] IEHC 761
[2018 No. 876 JR]
IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT
2000, AS AMENDED
BETWEEN
O
APPLICANT
– AND –
THE MINISTER FOR JUSTICE AND EQUALITY, THE INTERNATIONAL PROTECTION
APPEALS TRIBUNAL, IRELAND
AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT of Mr Justice Max Barrett delivered 14th day of November, 2019.
1. Mr O is a national of Nigeria. He is a middle-aged, unmarried man and says that his
sexual orientation is heterosexual. However, he claims that he was attacked at his
apartment in Nigeria by a crowd of homophobes who believed him and (it seems) his
housemates to be homosexuals. After this claimed event, Mr O fled Nigeria and came to
Ireland by an apparently circuitous route of which he maintains that he does not recall all
the details. Mr O has claimed asylum in Ireland. By decision of the International
Protection Appeals Tribunal (‘IPAT’) of 27.09.2018 (the ‘Impugned Decision’), he was
refused both a refugee declaration and a declaration as a person eligible for subsidiary
protection. Since that refusal Mr O has brought the within judicial review application.
Eight key questions are contended by him to arise as regards the judicial review
application. These are considered hereafter.
1. Does the Impugned Decision lack clarity? ‘No’. There can be no doubt from the
decision that the reason Mr O’s appeal failed is because he was found wanting in
credibility. Various comprehensible reasons are given as to why this want of
credibility is perceived to present. Other difficulties present with the Impugned
Decision but lack of clarity is not one of them.
2. Are the assessments in the decision vague? ‘No’, for the reasons stated at 1. Other
difficulties present with the Impugned Decision but vagueness is not one of them.
3. Did the IPAT engage in conjecture/speculation in the evaluation or assessment of Mr O’s
evidence? ‘Yes’. The IPAT concludes, inter alia, that: (a) long-time neighbours with whom
one exchanges passing pleasantries would not thereafter attack one; (b) as Mr O’s
housemates occasionally had girlfriends call in to see them, they would have been seen to
enter the apartment, leaving the impression that Mr O and his housemates were
heterosexual; (c) Mr O’s landlord would not have reported him to the police as a
suspected homosexual because the apartment rent was always paid on time; and (d) the
fact that Mr O could not identify alleged assailants drawn from his neighbourhood renders
it doubtful that he was attacked by persons from his neighbourhood. An adverse
credibility finding must be founded on the evidence; conjecture (as opposed to inference)
is of no legal value; there must be a logical nexus between findings of fact and the
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ensuing decision; and inferences too must reasonably be drawn. (See e.g., Memishi v.
Refugee Appeals Tribunal, (Unreported, High Court, Peart J., 25 June 2003) and I.R. v.
Minister for Justice, Equality and Law Reform [2009] IEHC 353). Unfortunately when it
comes to Mr O’s appeal, the IPAT, in reaching conclusions (a) - (d) acted in breach of
these requirements: There is no evidence to support the inferences at (a) - (d) and none
of (a) - (d) necessarily accord with general truths.
4. Were inferences drawn that were unreasonable? ‘Yes’, for the reasons stated at 3.
5. Did the IPAT fail to have regard to the legal submissions submitted 31st July 2018? The
IPAT indicates in the Impugned Decision that all of the documentation provided to it was
considered and the court has no reason to believe that this is not true. However, it is
clear from the Impugned Decision that the IPAT did not fully appreciate what was placed
before it. Thus it states in the Impugned Decision that “[A]ll the COI submitted relates to
issues that homosexuals have in Nigeria”. Regrettably, this is wrong. The Country of
Origin Information (‘COI’) also details the risks posed to men and women in Nigeria who
are perceived, rightly or wrongly, to be homosexual, such is the apparent level of
homophobia in Nigeria. It is a fundamental principle of natural justice that one’s case
should be decided by reference to the facts that present, not by reference to facts that do
not present. Here, as mentioned, the Impugned Decision was decided on the basis that
“[A]ll the COI submitted [related]…to issues that homosexuals have in Nigeria”. That is
not correct and leads logically to the inexorable conclusion that the evidence before the
IPAT was, regrettably, misunderstood.
6. Did the IPAT fail to take any or adequate regard of Mr O’s explanations for events and his
actions? ‘Yes’, for the reasons stated at 5.
7. Did the IPAT take into account irrelevant considerations in its assessment of Mr O’s
credibility? ‘Yes’, for the reasons stated at 3 and 5.
8. Did the IPAT make findings which were unreasonable, based on unfounded assumptions
or pre-conceptions as opposed to being based on objective evidence? ‘Yes’, for the
reasons stated at 3 and 5.
2. Although the court sees no issue to present as regards the conclusions reached by
the IPAT concerning how Mr O came to this country, given the deficiencies
identified at Questions 3-8 above, the court considers that it is appropriate to grant
the relief sought at item i) of the notice of motion of 8.11.2018; there is no way of
knowing what overall conclusion the IPAT would have reached had it proceeded in
the absence of the above-mentioned deficiencies.
Result: Judgment in favour of Applicant