AAL v International Protection Appeals Tribunal, Minister for Justice and Equality, Ireland and the Attorney General

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Respondent/Defendant:International Protection Appeals Tribunal, Minister for Justice and Equality, Ireland and the Attorney General
Court/s:High Court
Citation/s:[2018] IEHC 792
Nature of Proceedings:Appeal/Judicial Review
Judgment Date/s:21 Dec 2018
Judge:Humphreys R
Category:Refugee Law
Keywords:Asylum, Burden of Proof, Protection, Protection (Application for International)
Country of Origin:Nigeria
URL:http://courts.ie/Judgments.nsf/0/615DE5DD1B38F5EB8025838500419CB2

Facts:

The applicant was a Nigerian national who applied for asylum in the State. He claimed that his mother was a Christian and his father a Muslim, and that his family was attacked after his father converted to Christianity and his mother was killed. His application for asylum was deemed withdrawn after the applicant left direct provision accommodation without a forwarding address, and a deportation order was thereafter made. The deportation order was subsequently revoked when the applicant submitted an application for subsidiary protection. During his subsidiary protection interview the applicant was unable to give dates of many of the key incidents of his account and said that he was “not mentally ok”. His application for subsidiary protection was rejected at both first instance and appeal, on credibility grounds. The applicant subsequently brought judicial review proceedings challenging the decision of the Tribunal.

Reasoning:

Humphreys J. rejected the contention that the Tribunal had dismissed out of hand the applicant’s explanation of a mental disability, pointing out that the applicant had not furnished any medical evidence of mental illness or disability. The applicant’s argument regarding the application of the “shared duty” in article 4 of the Qualification Directive in respect of this issue was also rejected. Humphreys J. noted that in accordance with the decision of the Court of Justice of the European Union in Case C-277/11 MM v Minister for Justice and Equality (22nd November, 2012), under article 4(1) of the Qualification Directive it is generally for the applicant to submit all elements needed to substantiate the application. It is the duty of a Member State to cooperate with the applicant at the stage of determining the relevant elements of the application. This involves cooperation with the applicant as opposed to a fully inquisitorial procedure. It also involves identifying the elements of the application actually made, not an application that the applicant could have made but did not. Humphreys J. held that the elements of the application fall broadly into two categories: the country situation and factors personal to the applicant. Insofar as information regarding the country situation is concerned, Member States have an investigative burden with regard to the information listed in art.4(3) of the Qualification Directive. It was held that a Member State may also be better placed than an applicant to gain access to certain types of documents, which is more likely to arise in relation to country documentation. Humphreys J. noted that State protection bodies are not in a position to obtain documents personal to an applicant because attempting to do so identifies the applicant to third parties as a protection seeker, contrary to section 26 of the International Protection Act 2015. Insofar as factors personal to the applicant are concerned, it was held that the primary responsibility to describe the facts and events which fall into his or her personal sphere is that of the applicant, citing BB (India) v International Protection Appeals Tribunal [2018] IEHC 741. Humphreys J. concluded that if the applicant fails to assemble the elements of his or her claim that are personal to him or her, the State has only a limited role in supplying the deficit, as it is unlikely to be in a better position to do so than the applicant.

Decision: Application dismissed.

Principles:Under article 4(1) of the Qualification Directive it is generally for the applicant to submit all elements needed to substantiate the application. It is the duty of a Member State to cooperate with the applicant at the stage of determining the relevant elements of the application. This involves cooperation with the applicant as opposed to a fully inquisitorial procedure. It also involves identifying the elements of the application actually made, not an application that the applicant could have made but did not. Insofar as information regarding the country situation is concerned, Member States have an investigative burden with regard to the information listed in art.4(3) of the Qualification Directive. A Member State may also be better placed than an applicant to gain access to certain types of documents, which is more likely to arise in relation to country documentation. State protection bodies are not in a position to obtain documents personal to an applicant because attempting to do so identifies the applicant to third parties as a protection seeker. Insofar as factors personal to the applicant are concerned, the primary responsibility to describe the facts and events which fall into his or her personal sphere is that of the applicant. If the applicant fails to assemble the elements of his or her claim that are personal to him or her, the State has only a limited role in supplying the deficit, as it is unlikely to be in a better position to do so than the applicant.
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