High Court dismisses appeal on mental illness credibility where applicant failed to substantiate medical claims.

[2019] IEHC 123

THE HIGH COURT

JUDICIAL REVIEW

[2018 No. 371 J.R.]

BETWEEN

A.A.L. (NIGERIA)

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND IRELAND

RESPONDENTS

(No. 2)

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 25th February, 2019

1. In A.A.L. (Nigeria) v. International Protection Appeals Tribunal (No. 1) [2018] IEHC 792 (Unreported, High Court, 21st December,

2018) I rejected a challenge to a decision of the tribunal refusing international protection to the applicant. The applicant now seeks

leave to appeal and I have had regard to the law in relation to that issue, including 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), I.R. v. Minister for Justice and Equality [2009] IEHC 510 [2015] 4 I.R. 144 per Cooke J., Raiu v. Refugee Appeals Tribunal

[2003] 2 JIC 2603 (Unreported, High Court, 26th February, 2003) per Finlay Geoghegan J., Gritto v. Minister for Justice Equality and

Law Reform [2005] IEHC 75 (Unreported, High Court, 16th March, 2005) per Laffoy J., and M.A.U. v Minister for Justice, Equality and

Law Reform (No. 3) [2011] IEHC 59 (Unreported, High Court, 22nd February, 2011) per Hogan J. I have also discussed these criteria

in a number of cases, including 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), and Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405

(Unreported, High Court, 24th March, 2017) (para. 72). I have received helpful submissions from Mr. Mark de Blacam S.C. (with Mr.

Garry O’Halloran B.L.) for the applicant and from Mr. Anthony McBride S.C. for the respondents.

Applicant’s proposed first question

2. The applicant’s proposed first question of exceptional public importance is “whether in compliance with Article 4 of the Qualification

Directive the Tribunal is required to investigate an applicant’s repeated assertions of mental illness in circumstances where it would

be reasonable to carry out an investigation”.

3. Mr. McBride responds to this point by stating in written submissions at para. 5 that “the essential difficulty was that the applicant

attempted to use this solitary plea as a wedge to make a whole new argument for which leave had not been given”. At para. 6 of

the written submissions he makes the point that the ratio of the No. 1 judgment is “that the pleadings were simply inadequate for the

case sought to be made and the Applicant must fail in his application for judicial review on that account.”

4. The problem for the applicant under this heading is that there were four grounds for the decision. Firstly, that the point was

inadequately pleaded. Secondly, that he did not make the point to the tribunal, thirdly, there was no evidence of actual mental illness

and fourthly, that the point was unmeritorious.

5. On the pleading issue, Mr. de Blacam says I should have allowed an amendment in accordance with B.W. v. Refugee Appeals

Tribunal [2017] IECA 296 [2018] 2 I.L.R.M. 56, but on the other hand he did not apply for an amendment, so the question of allowing

one did not arise.

6. On the question of making the point to the tribunal, it was submitted that it would rewrite the law of judicial review to say that a

jurisdictional point needs to be made to the decision-maker. First of all, this is not a jurisdictional point. The statement of grounds

pleads breach of the UNHCR Handbook, which is not justiciable, breach of the International Protection Act 2015 (provision

unspecified), breach of the Charter of Fundamental Freedoms (provision unspecified) and breach of the ECHR which is not directly

justiciable but only by virtue of the European Convention on Human Rights Act 2003, which is not referred to in the statement of

grounds. The complaint actually made in the ground as pleaded appeared in substance to be a complaint regarding the reasonableness

of the tribunal having failed to apply a specific procedure to the applicant to assess his mental competence. That is not a

jurisdictional point. But even if it was, I did not say that all jurisdictional points need to be made to the decision-maker in every

judicial review in every field. What I said was that if the applicant wants to make a case of lack of mental capacity then he should

make that to the decision-maker, and this applicant did not do so. That is triply problematic here as not only was the applicant legally

represented at all times, but also under the third heading of the decision, he still has not provided medical evidence of mental illness

or disability even in the context of the judicial review.

7. As Mr. McBride eloquently puts it at para. 9 of his written submissions, “It is only fourthly and finally, in the event that the Court

should have been wrong about all the foregoing, that it went on to consider the question of whether the Tribunal was under a

burden to investigate the potential for the Applicant’s mental or emotional disturbance. The Court held that the characterisation of

the Tribunal as having an ‘inquisitorial’ function, often used as shorthand in caselaw, did not equate to a free-ranging duty to

investigate matters personal to the Applicant and could not affect the well-established meaning of the ‘shared duty’ as operated in

Union asylum and international protection law.” The essential point as to the difficulty for the applicant here is again well articulated

in para. 19 of the respondents’ written submissions that “to grant a certificate of appeal would mean that the Applicant was able just

to circumvent these inconvenient findings against him, even though they are each independently fatal to his case”.

8. There would also be a further problem if leave to appeal is allowable here on the basis of the fourth heading of the judgment

because it would disincentivise courts from dealing with issues on an “even if I am wrong” basis. Where a judge dismisses an action

on a procedural basis (such as, by way of illustration rather than exhaustion, pleading, time, discretion or abuse of process), and goes

on to say, if I am wrong, the substantive point is not meritorious, if such a judge finds that expressing a view on the substance

amounts to giving material and ammunition to the losing party and a basis for that party to have leave to appeal, one would have to

wonder why any judge would do anything other than frame judgments on the narrowest grounds possible. Viewed from the

perspective of the interests of the legal system as a whole, such an approach would hardly promote legal clarity and certainty.

9. The complaint made by the respondents that the applicant’s case has mutated significantly is well-founded. As it is elegantly put

at para. 18 of Mr. McBride’s submissions, “The judicial review began as a challenge to a credibility assessment on the part of the

Tribunal. When written legal submissions were received on 6 December 2018, the case had apparently morphed into a claim that the

Tribunal was obliged under §§206-12 of the UNHCR Handbook and/or the European Convention on Human Rights to investigate

whether medical evidence should be obtained in relation to the Applicant’s mental state. At hearing on 21 December 2018, the

Applicant’s counsel for the first time raised the inquisitorial function of the Tribunal and claimed that this was actually the true origin

of this obligation. Out of the blue, he presented a welter of authority on the subject of the inquisitorial function, including cases from

other jurisdictions having no relevance to protection law processes either there or in this State. These cases were picked over for

suitable quotes to collect together and to patchwork a principle that none of them on their own supported, namely … the Tribunal’s

inquisitorial function imported a free-ranging duty to investigate matters personal to the Applicant. The shared duty was mentioned

once in the Applicant’s written submissions. The Qualification Directive was not mentioned at all … And yet somehow it is proposed

that these proceedings, having begun as they did, should now culminate in an appeal on issue of the procedural obligations on the

Tribunal under Article 4 of the Qualification Directive. This is not supportable and, when looked at … in the round, clearly amounts to

an abuse of process.”

10. Even leaving aside all of these problems, the applicant has not made out any ground for uncertainty as to the law in relation to

the shared duty, and indeed the core of his submission under this heading is a misreading of the judgment. It is claimed that there is

an error in para. 20(iv) of the judgment where I said that “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: see EASO

judicial analysis. This is closer to the traditional understanding of the inquisitorial function”. That is a reference to the EASO Judicial

Analysis, “Evidence and credibility assessment in the context of the Common European Asylum System”, 2018, at para. 4.2.5 which

states: “Member States have an investigative burden with regard to information listed in Article 4(3) QD (recast) which is separate

from the applicant’s duty to substantiate the application. Article 4(3)(a) requires the assessment of applications for international

protection to take into account ‘all relevant facts as they relate to the country of origin at the time of taking a decision on the

application, including laws and regulations of the country of origin and the manner in which they are applied’. This norm applies, inter

alia, to obtaining information about the country of origin obtaining such information as part of the member states investigative

burden”.

11. Paragraph 20(iv) read in context clearly does not exclude a role for the State in relation to personal factors relevant to the

applicant. It deals with the State’s obligations in the context of the country situation. Paragraphs 20(v) to (vii) set out the situation

regarding the personal factors and indicated the primary role in that regard is that of the applicant. It is simply a misreading in terms

of ordinary English to suggest that the judgment in general, or para. 20(iv) in particular, absolves the State from any role whatsoever

in any circumstances in assembling or corroborating any element of a claim that is personal to the applicant. The judgment simply

does not say that and on any fair reading that is dealt with separately in the context of such personal matters being primarily,

although not necessarily exclusively, a matter for the applicant. The reason that such matters are primarily matters for the applicant

is firstly, that protection bodies cannot investigate material personal to an applicant in almost any circumstances without disclosing to

third parties the applicant’s status as a protection seeker contrary to the statutory obligation of confidentiality; and secondly,

because protection bodies are unlikely to be better placed than an applicant to substantiate such elements of the claim.

12. Nonetheless, the decision-maker may have a role to seek clarification of an applicant’s mental state in certain circumstances but

a meaningful threshold would need to be surmounted by an applicant before any such duty could realistically or properly arise. That is

not met by an applicant simply asserting that he or she is unable to remember matters, is “not that sharp”, is mentally confused or is

“mentally sick”, especially when he or she tries to remember the alleged persecution. That is consistent with the point made by Clark

J. in R.A.E. (Cameroon) v. Refugee Appeals Tribunal [2013] IEHC 538 (Unreported, High Court, 30th September, 2013) at para. 22

that “in the circumstances of this case, depression, flash backs, sleep disturbance and memory loss (all self reported) do not equate

to the mental disability envisaged by the UNHCR Handbook. … The fact that the applicant claimed to suffer from memory loss which

was connected in some way with the injuries which he had suffered was not ignored. It was separately considered and was found

not to be a credible part of his claim”. A similar point mutatis mutandis could be made here. Attempt was made to rely at p. 59 para.

4.2.7 of the EASO Judicial Analysis regarding engagement of experts, but that is permissive rather than mandatory, and failure to

operate such a possibility is not a ground for certiorari. For the court to say that an applicant should have leave to appeal on the

ground that the tribunal failed to direct medical investigations of someone whose solicitor and counsel did not ask for such and did not

raise a medical issue and did not substantiate a medical condition, either before the tribunal or the High Court on judicial review,

would simply be an unreal procedure.

Applicant’s proposed second question

13. The applicant’s proposed second question of exceptional public importance is “whether, in compliance with the Directive, the

Tribunal is entitled to rely on the absence of medical evidence in support of a claim of mental illness as a reason to support its

finding that the applicant’s application lacked general credibility”.

14. No particular submission was made orally directed to this point and it is hard to discern much in the applicant’s written submission

about it either. It is telling that the proposed question does not identify any specific provision of the directive. If an applicant makes

a medical claim but then does not provide any evidence of that claim, that can be considered like any other evidential problem with

an applicant’s case. Anyway, the point was not enormously central to the decision and was in the context of an account of “the

utmost vagueness” (see para. 4.17).

Order

15. The application is dismissed.