High Court dismisses asylum applicant's review of IPAT decision on internal relocation grounds.

[2018] IEHC 741

THE HIGH COURT

JUDICIAL REVIEW

[2018 No. 251 J.R.]

BETWEEN

B.B.A. (INDIA)

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE

ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 14th day of December, 2018

1. The applicant originates from Indian Kashmir, and was born in 1988. He was sent to the U.K. in 1998 aged ten and returned to India

in 2007. He then applied for a visa on 18th July, 2012 to study in the U.K. and returned there in August, 2012. He did not apply for

international protection in that country.

2. He appears to have travelled to Ireland on or about September, 2014, and applied for asylum approximately two months

afterwards. That was refused by the Refugee Applications Commissioner. He then sought subsidiary protection, which was refused by

the International Protection Office. Those decisions were appealed to the International Protection Appeals Tribunal, which rejected

the appeals on 27th February, 2018.

3. The present proceedings were filed on 29th March, 2018, the primary relief sought being certiorari of the IPAT decision. I granted

leave on 23rd April, 2018. I have received helpful submissions from Mr. Paul O’Shea B.L. for the applicant and Mr. Alexander Caffrey

B.L. for the respondents.

Affidavit delivered without leave

4. On 5th September, 2018, the applicant’s solicitor swore an affidavit in which it was proposed to exhibit certain documents which

were not put before the tribunal, but which the applicant claims would have made a difference if the tribunal had properly considered

all up to date country information. Only one of those items could reasonably have been something that the tribunal could have been

even conceivably obliged to consider, namely the Human Rights Watch Annual Report, 2017. It is not remotely workable for the

tribunal and each of its members to maintain a round-the-clock watch on the internet for newspaper articles about each and every

country, or for such occasional statements, reports or press releases as might be issued from time to time by NGOs such as Amnesty

International. The Human Rights Watch Annual Report, by contrast, is properly mainstream country information of the type to which

one could argue that the tribunal can be expected to have general regard.

5. The Central Office system indicates that the affidavit was not filed and the copy produced is not marked as filed. Leave to file was

not specifically sought on behalf of the applicant even when I pointed out that it had not been filed, so it does not seem necessary

to take any action in relation to this affidavit. Thus it is not part of the case, but even if it was it does not entitle the applicant to

succeed. Even if I had been formally asked to allow this affidavit to be filed, which I wasn’t, and had I been minded to allow that,

which I wasn’t, it would not have been appropriate to do so because the point simply is not pleaded. The grounds set out in the

statement of grounds do not include the argument that the tribunal’s decision is unlawful because it failed to consider this extraneous

material, so on any view the applicant is not entitled to succeed under this heading.

The shared burden of proof

6. Mr. O’Shea attempts to argue that the burden of showing that an internal protection alternative is available is on the State rather

than the applicant. However, he did not make this point to the tribunal, and indeed the submissions made to the tribunal quote para.

196 of the UNHCR handbook, which refers to the general duty being on the applicant, qualified by a shared duty. Under those

circumstances the applicant is not entitled to make such a point for the first time to the court. Thus it is not surprising that Mr.

O’Shea says he is “not pushing” this point.

7. In case I am wrong about the applicant’s entitlement to raise this issue now, I can comment briefly on it in any event. Mr. O’Shea

submits that the UNHCR internal relocation guidelines, entitled “Internal Flight or Relocation Alternative”, July, 2003, should have been

referred to but were not. As the UNHCR guidelines are not law, an otherwise lawful decision cannot be quashed for failure to comply

with them. The attempt is being made to use the guidelines to launch an argument that the burden of showing the internal relocation

option is available lies on the respondent. That is somewhat contradicted by the UNHCR handbook, which as noted refers to a shared

duty (para. 196) and by the fact that the UNHCR guidelines claim that the burden being on the respondent in certain respects is

consistent with this shared duty (para. 33).

8. The International Protection Act 2005 is an implementation of EU law. The long title refers to its purposes as including to give

further effect to directives 2001/55/EC, 2004/83/EC and 2005/85/EC. European standards are represented in the discussion in

Hailbronner and Thym, EU Immigration and Asylum Law, 2nd ed. (C.H. Beck/Hart/Nomos, 2016) at pp. 1164 to 1165 by Judge Harald

Dörig, in relation to art. 8 of the qualification directive (referring to the recast version but the same point applies to the original). That

discussion refers to the UNHCR guidelines mentioned above but also to a judgment of the German Federal Administrative Court

(Bundesverwaltungsgericht) of 10th May, 2004, No. 9 C 434.93 Neue Zeitschrift für Verwaltungsrecht 1994 p. 1123 to the effect that

“[i]t is the general duty of an applicant to explain that his fear of persecution extends to the territory of his home country as a

whole…But in the case of an IPA [internal protection alternative], this only means that he has to describe the facts and events

which fall in his personal sphere”. That amounts to the well-established shared burden: see O.P. v. Minister for Justice and Equality

[2010] IEHC 513 (Unreported, Ryan P., 22nd October, 2010), K.D. (Nigeria) v. Refugee Appeals Tribunal [2013] IEHC 481 [2013] 1 I.R.

448, E.I. v. Minister for Justice, Equality and Law Reform [2014] IEHC 27 (Unreported, Mac Eochaidh J., 30th January, 2014) and

K.M.A. (Algeria) v. Refugee Appeals Tribunal [2015] IEHC 472 (Unreported, Eagar J., 16th July, 2015). Here, neither the general

circumstances in the places concerned nor the personal circumstances of the applicant led to the conclusion that internal relocation

would be unavailable, so this point does not assist this applicant on these facts.

Alleged unlawfulness of refusal of protection on internal relocation grounds

9. Regulation 7(1) of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) reflecting art. 8 of

the qualification directive provides that protection may be refused if “the applicant can reasonably be expected to stay in a part his

or her country of origin where there is no well-founded fear of being persecuted or real risk of suffering serious harm”. Regulation

7(2) prefers that the decision-maker “shall have regard to the general circumstances prevailing in that part of the country [of origin]

and to the personal circumstances of the applicant”. The applicant has previously lived in Delhi for eight months and Bangalore for

seven months (see para. 5.8 of the tribunal decision), has been in Calcutta, and indeed also returned to India from the U.K. as an

adult. The tribunal identified places in India where internal relocation was an option, and in doing so considered the personal

circumstances and attributes of the applicant and the general circumstances in the parts of the country concerned. It concluded that

in the light of those factors, it would be reasonable to expect the applicant to stay there.

10. By contrast with, for example, A.A. (Pakistan) v. International Protection Appeals Tribunal [2018] IEHC 497 (Unreported, High

Court, 31st July, 2018), the tribunal here has stated and applied the correct test. Those findings were perfectly reasonable and lawful

on the material before the tribunal member, who of course saw and heard the applicant and was best placed to assess his fears

regarding internal relocation. The applicant’s submission that, for example, his points were not given due weight are simply a complaint

that the tribunal did not agree with him, as the weight to be assigned to the various evidential factors is quintessentially a matter for

the decision-maker. The Human Rights Watch Report, 2017, which the applicant did not see fit to put before the tribunal, does not

create any fundamentally different picture to the findings arrived at by the tribunal, even if it were properly part of the case, which it

isn’t.

Order

11. The tribunal considered that its conclusion that the applicant could relocate to a large city in India was an “objective common

sense appraisal of the reality … having regard to the applicant’s own evidence and COI” (para. 5.8(c)). That was an entirely

justifiable approach. The application is dismissed.