A.D.N. (South Africa) -v- International Protection Appeals Tribunal & Ors ; F.N.N. (South Africa) -v- International Protection Appeals Tribunal & Ors [2019] IEHC 627 (31 July 2019)

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.D.N. (South Africa) -v- International Protection Appeals Tribunal & Ors ; F.N.N. (South Africa) -v- International Protection Appeals Tribunal & Ors [2019] IEHC 627 (31 July 2019) URL: http://www.bailii.org/ie/cases/IEHC/2019/2019_IEHC_627.html Cite as: [2019] IEHC 627

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 31st day of July, 2019

1. The applicants are South African nationals and are a married couple. They went to the

U.K. between December, 2015 and February, 2016 but did not claim asylum there. They

returned to South Africa and then came to the State on 9th May, 2016. They claimed

international protection on the same day, were both refused by the International

Protection Office, and both appealed to the International Protection Appeals Tribunal. At

para. 1.11 of its decision rejecting those appeals, the tribunal noted that because the

applicants’ claims were similar, it had formed the view that each applicant might wish to

give evidence in support of the other or alternatively that they might wish to have a joint

hearing. The applicants were notified of the hearing date six weeks in advance: see para.

2. Regulation 8 of the International Protection Act 2015 (Procedures and Periods for

Appeals) Regulations 2017 allows for joint hearings in certain circumstances, including

where members of the same family are involved. In the case of a joint hearing, however,

the issue of exclusion of one applicant during the evidence of the other applicant may fall

for consideration because, as the tribunal member put it at para. 1.18, “the second

witness’s evidence could be affected or tainted by hearing the first witness, either

deliberately or inadvertently”. The tribunal member gave the applicants the option of two

separate back-to-back hearings or a joint hearing where each would be excluded from the

3. At para. 1.21 she records the applicants’ counsel as stating that the applicants were

willing to consent to leaving the hearing room for each other’s evidence in the context of

a joint hearing. At para. 2.1 she noted that the applicants’ accounts were not entirely

consistent. At para. 4.6 she stated that she was making an individualised assessment of

4. At para. 4.7 onwards she noted that in relation to the wife’s evidence “numerous

credibility issues arise. An exhaustive exposition of these is beyond the scope of this

decision which seeks to set out some illustrative examples of the issues which arose”.

Those illustrative examples are then set out in technicolour; and she concludes after a

further 20 paragraphs outlining inconsistency, vagueness or other difficulty that the wife’s

5. The husband fared no better. At para. 4.29 the tribunal member said that his “account at

the hearing was overall vague and non-specific. He tended to give long answers which

deviated from the question asked. He supplied little concrete information. When asked

for further details, something that occurred repeatedly due to his overall vagueness, he

appeared unable to flesh out his account with concrete facts or specifics”. After a further

eighteen paragraphs of detail in relation to that, his account was rejected at para. 4.47.

6. The two sets of proceedings now before the court were filed on 21st December, 2018, the

primary relief sought being certiorari of the IPAT decision. I granted leave on 21st

January, 2019 and have received helpful submissions from Mr. Paul O’Shea B.L. (with Mr.

Philip Moroney B.L. and Mr. Alex Layden B.L., who appeared at the tribunal) for the

applicants, and from Ms. Sarah K.M. Cooney B.L. for the respondents.

7. The applicants’ submissions helpfully set out a series of questions presented by the

proceedings. The first set of questions is as follows: “1. Did the First Respondent err in

law in its interpretation and/or application of Regulation 7 and 8 of Statutory Instrument

116 of 2017, in allowing a joint hearing to be conducted whereby the Applicant was

excluded from a portion of [his or her] own hearing? 2. Did the First Respondent err in

law by conducting a hearing where the Applicant was excluded from a portion of [his or

her] own hearing, having regard to natural and Constitutional justice, including the

principles of fair procedures and audi alterem partem, and/or having regard to Article 6

of the European Convention of Human Rights and/or Article 47 of the EU Charter of

8. It is an overstatement to say that the applicants were excluded. They were personally

present for a part of the joint hearing but they were represented by a legal adviser

throughout. That is not exclusion in any improper sense. Even if it could be regarded as

exclusion, it was not unlawful. Indeed, in some legal systems it is the default position

that witnesses in any proceedings are called in the absence of each other. The fact-finder

must have a discretion as to how to conduct the hearing and is perfectly entitled to

consider that the evidence of one spouse would be more reliable if not influenced by

having heard the evidence of the other spouse. It is true that s. 42(6) of the 2015 Act

sets out the right of an applicant to “be present at the hearing” but that is a statement of

general principle, subject to lawful directions of the tribunal. It is not intended to be an

absolute right with no exceptions. Suppose for example that when an applicant’s lawyer

is making closing submissions an applicant behaves in a disorderly manner and is asked

to leave. The consequence of the literal interpretation advanced by Mr. O’Shea is that the

tribunal must then suspend the hearing and cannot hear the conclusion of the

submissions and must wait until the applicant comes back, if he ever does. That is to

read s. 42(6) in a blindly literal manner, an interpretative methodology that is not to be

encouraged. As soon as people start reaching for dictionaries as a starting point, you

know the law is heading down a dead-end. Text, purpose and context all must be viewed

collectively and holistically to produce an interpretative outcome, and not in isolation from

each other. But even if I am wrong about whether s. 42(6) should be read literally, the

fact that this was a joint hearing meant that the tribunal was within its jurisdiction to

consider that one spouse could be excluded from the other’s evidence given that the right

to be present only applies to one’s own case rather than the entirety of the joint hearing.

9. The third question presented is “did the applicant acquiesce to the conduct of the joint

hearing or waive [his or her] right to subsequently review the conduct of the joint

10. Because the point fails anyway, that does not arise; but if it had arisen, on the facts here

the applicants rejected the option of back-to-back hearings and agreed to the procedure

adopted, as noted in the tribunal member’s decision, so they cannot challenge it now: see

R.S. and S.S. (exclusion of appellant from hearings) Pakistan [2008] UKAIT 00012. It

is overkill to call what happened “duress”. On the contrary, as Ms. Cooney puts it

eloquently at para. 29 of her written submissions, “the applicants themselves have

11. The next question presented is “did the first respondent err in law by acting ultra vires

and/or in breach of s. 28 of the International Protection Act 2015 by issuing a joint

decision to the applicant”. Given that joint hearings are allowed for in reg. 8 of the 2017

regulations it is to be implied that a joint decision in the form of a single document is also

a permissible procedure. The terms of that decision make clear that the applicants’ cases

were individually considered, as I have noted above. In any event, no injustice was done

12. The next series of questions raise a sequence of micro-criticisms of the tribunal’s

credibility findings. But as appears from the narrative I have referred to above, there was

a litany of material on which the tribunal member was entitled to act in drawing the

adverse credibility findings. As Ms. Cooney quite legitimately puts it at para. 43 of her

written submissions, “it is quite apparent that the applicants’ claim for international

protection does not inspire much confidence. The claims made lack coherence, clarity

and detail”. The adverse credibility findings were well within the jurisdiction of the

tribunal. It is well established that the weight to be attached to various pieces of

evidence is “quintessentially a matter for the Tribunal member” (per Birmingham J., as he

then was, in M.E. v. Refugee Appeals Tribunal [2008] IEHC 192 (Unreported, High Court,

27th June, 2008) at para. 27: see also B.D.C. (Nigeria) v. International Protection

Appeals Tribunal [2018] IEHC 460 [2018] 7 JIC 2006 (Unreported, High Court, 20th July,

13. The final set of questions presented on behalf of the applicant are “Did the First

Respondent err in law and fact in assessing the Applicant’s future risk of harm if returned

to his country of origin?” and “Did the First Respondent err in law and fact in failing to

consider the risk of the Applicant being subjected to non-violent forms of xenophobia,

amounting to persecution, if returned to his country of origin?”.

14. The tribunal expressly considered the question of future risk and did so in a lawful

manner. The fact that in the course of that discussion it referred to a consideration of

violent acts against the applicants must be read as meaning consideration of acts which

would amount to persecution or serious harm. The fact that the tribunal mentioned

violence and did not go on to mention a possibly completely academic category of non-

violent risks which nonetheless qualify a person for international protection. It is not

even clear whether such a category exists in law in any event. The use of a reference to

violence as a shorthand for risks warranting international protection does not make the

decision unlawful. The tribunal member went on to consider the general position of

serious harm or persecution (see para. 5.12) and came to a clear conclusion about a lack

of further risk in the terms of the statutory language at para. 5.13. Merely plucking out

of context the reference to the word “violence” does not nullify these conclusions either as

15. The proceedings were filed a month out of time and insufficient particulars were deposed

to to enable me to conclude that there is good and sufficient reason to extend the time.

However, as the applications fail on their merits anyway, it is not necessary to deal with

16. Both proceedings are dismissed.

Result: Applications Dismissed.

High Court of Ireland Decisions