High Court dismisses asylum applicant's late leave to appeal due to new authorities and procedural impropriety.

[2018] IEHC 431

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 898 J.R.]

BETWEEN

A.M.C. (MOZAMBIQUE)

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

(No. 2)

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 9th day of July, 2018

1. In A.M.C. (Mozambique) v. Refugee Appeals Tribunal (No. 1) [2018] IEHC 133, I refused certiorari of a decision of the International

Protection Appeals Tribunal refusing an asylum claim made by the applicant. The applicant now submits a large number of new

authorities, and new points that were not originally made, in support of an application for leave to appeal the original decision.

2. As noted in the substantive decision, the applicant’s written submissions relied on the High Court decision in A.O. v. Refugee

Appeals Tribunal [2015] IEHC 252 (Unreported, Barr J., 21st April, 2015) without referring either to the fact that it had subsequently

been overturned by the Court of Appeal (A.O. v. Refugee Appeals Tribunal [2017] IECA 51 (Unreported, Court of Appeal, 27th

February, 2017)) or to my decision in T.T. (Zimbabwe) v. Refugee Appeals Tribunal [2017] IEHC 750 (Unreported, High Court, 31st

October, 2017) discussing the latter judgment. The applicant thus must be credited with achieving a new definition of legal chutzpah,

in asserting on the one hand that he is entitled to leave to appeal due to alleged confusion in the law, while on the other having

attempted to create such confusion by making submissions which failed to refer to relevant authorities in the first place.

3. I have considered the case law in relation to leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250

(Unreported, MacMenamin J., 13th November, 2006), Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then

was), S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 (Unreported, High Court, 14th November,

2016) para. 2, Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th

March, 2017) at para. 72. and I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 510 [2015] 4 I.R. 14.

4. I have received helpful submissions from Mr. Mark de Blacam S.C. (with Mr. Eamonn Dornan B.L.) for the applicant and from Mr.

Dermot Manning B.L. for the respondent. I should note that Mr. de Blacam did not appear in the original substantive proceedings.

An important context is the demolition of the applicant’s credibility

5. An important context for assessing what Mr. de Blacam says are interesting and significant legal points is that, on the facts of this

particular case, the applicant’s credibility is in tatters for a whole series of reasons set out in the substantive judgment and

summarised in the thirteen reasons at para. 4, including a series of matters where the applicant either told repeated lies, gave vague,

contradictory or implausible explanations, was unable to account for matters or gave explanations that were contrary to known

country material.

6. The applicant raises legalistic points regarding a document produced in the form of an alleged death certificate for his father, but

he has the insuperable difficulty that the document was in effect insufficient to overcome the fundamental problems with his

credibility on other grounds. But even apart from that, the applicant’s document is fundamentally unsatisfactory. Four points are

notable in that regard:

(i). The document was produced well into the process rather than at the outset.

(ii). The applicant was unable to furnish any explanation as to who furnished the information enabling the death to be

registered.

(iii). The applicant was unable to explain the provenance of the document and in particular how he allegedly obtained it at

that stage in the proceedings.

(iv). The certificate purports to identify the cause of death as “attack by RENAMO”. While the IPAT did not make this

specific point, it is inherently unworkable for a civil registration system to operate on the basis that a death certificate

would specifically name murderers on its face. That would preclude registration of death until the conclusion of police

investigations and court proceedings, which could take years, even assuming that such conclusions could be reached at

all.

7. The document is simply all-too- convenient from the applicant’s point of view and ultimately this is not the sort of case where

there was any injustice whatsoever done to the applicant by the tribunal failing to take the view that this shaky document took the

applicant over the line in terms of his asylum claim.

Another contextual matter is the consideration given by the tribunal to the applicant’s medical report

8. As regards the medical report, this was simply one of a number of items of evidence, the assessment of which was a matter for the

tribunal. Mr. de Blacam submits that the applicant’s doctor said that he had signs of PTSD and numbing, but as with any such matters

these are for the tribunal to assess on the facts of any individual case. Here the medical report was considered by the tribunal at

para. 5.17. Again, this is certainly not a case where the medical information was entirely disregarded. That information in and of itself

does not automatically identify what is the cause of the applicant’s difficulties and the tribunal was entitled to assess it in the manner

it did.

Proposed first question – alleged conflict in jurisprudence

9. The applicant’s proposed first question is an alleged conflict in jurisprudence between R.O. v. Minister for Justice and Equality

[2012] IEHC 573 [2015] 4 I.R. 200 and I.E. v. Minister for Justice and Equality [2016] IEHC 85 (Unreported, High Court, 15th

February, 2016). Mr. de Blacam accepts that R.O. was not mentioned in the applicant’s written submissions for the substantive

hearing. It seems to me that that concession is fatal to giving leave to appeal under this heading. It would be procedurally improper

for such a point to be introduced now as the basis for leave to appeal after the event. In any event, the main point I made in I.E.

was that R.O. should be rephrased to ensure that one was not inadvertently reversing the balance of proof. The conventional judicial

review jurisprudence does not assume that a respondent must justify a decision. The onus is on the applicant. Thus an applicant has

to prove that the decision lacks reasons. It is not for a respondent to show that there are cogent and compelling reasons for the

decision. Thus there is not so much a conflict of jurisprudence as that R.O. needs to be slightly rephrased to comport with

conventional doctrine. In any event, insofar as the medico-legal report is concerned it was not positively rejected (see para. 12 at

the substantive judgment).

Second question – M.M. v. R.A.T.

10. The second proposed question is whether the principles outlined by Faherty J. in M.M. v. Refugee Appeals Tribunal [2015] IEHC

158 (Unreported, High Court, 10th March, 2015) are correct. Again M.M. is not mentioned in the applicant’s substantive submissions

and it would be procedurally improper for it to be introduced only now at the leave to appeal stage. Furthermore, M.M. is not referred

to in the judgment so it is not a ground for leave to appeal on the logic set out by Cooke J. in I.R. v. Minister for Justice and Equality

[2009] IEHC 510 at para. 6 [2015] 4 I.R. 144 at 162.

Third question – probative value of medical report

11. The third question is what probative value is to be afforded to medico-legal reports where credibility is in issue. The answer to

that question must depend on the individual case and only fact-specific answers can be given. It is thus not an appropriate matter

for leave to appeal. As Mr. Manning puts it in para. 12 of his written submissions, “the relevance or issue the court is asked to certify

… is not understood. At best it appears that the applicant is raising some vague issue of general application which falls far outside

the scope of what constitutes a proper question for certification”.

Fourth question – S.R. v. R.A.T.

12. Reliance is placed in the fourth question on the judgment of Clark J. in S.R. v. Refugee Appeals Tribunal [2013] IEHC 26

(Unreported, High Court, 29th January, 2013). By contrast to all of the other cases now being relied on, S.R. was argued in the

applicant’s original written submissions but has clearly been superseded by the Court of Appeal decision in A.O. as further discussed

by me in T.T., neither of the latter cases having been mentioned in those written submissions as previously noted. It seems to me

that insofar as S.R. is concerned, that issue has been dealt with by the Court of Appeal in A.O. and insofar as T.T. is concerned it

would be procedurally improper of me to grant leave to appeal based on T.T. when the applicant made no submissions based on that

case at the substantive hearing.

Fifth question – unauthenticated documentary evidence

13. The fifth question asks what probative value is to be afforded to unauthenticated documentary evidence. That is not susceptible

to a simple answer and again can only be dealt with on a fact-specific basis. Thus it is not a question suitable for leave to appeal. As

noted above, on the facts of this particular case, the applicant’s document was so unsatisfactory in any event that no injustice of

any kind was done to him in the tribunal’s treatment of it.

The application is out of time

14. The judgment was delivered and the order perfected in this case on 8th March, 2018. The court was first notified of an intention

to seek leave to appeal on 30th April, 2018. The applicant is thus out of time according to the High Court practice direction HC78 on

asylum, immigration and citizenship, but it is not necessary for me to decide on the consequences of that because I am rejecting the

application for leave to appeal on its merits anyway.

Order

15. The application for leave to appeal is dismissed.