The High Court refused an applicant leave to seek judicial review of a decision that he was not eligible for subsidiary protection, finding that he had not discharged the burden of proof required by section 5 of the Illegal Immigrants (Trafficking) Act 2000.
In a judgment delivered on 21 February 2017, Ms Justice O’Regan considered the applicant’s proposed challenge to the International Protection Appeals Tribunal’s decision. The Tribunal had affirmed the refusal of his subsidiary protection application. The High Court’s decision concerned leave to bring judicial review proceedings; it did not determine a full judicial review challenge to the Tribunal’s decision.
The applicant arrived in Ireland on 8 September 2013 and applied for asylum the following day. After that application failed, he applied for subsidiary protection on 10 April 2014. The application was refused on 19 October 2015. He appealed, and the Tribunal affirmed the refusal in a decision dated 25 January 2017. The judgment’s opening paragraph describes the impugned decision as dated 24 January 2017, while its account of the appeal says it was affirmed on 25 January.
The applicant argued that the Tribunal had applied too demanding a test for “real risk”. His submission was that a risk could be real where there was at least some prospect of the feared event, including prosecution for irregular exit from Algeria. The judge rejected that proposed standard as not reasonable, arguable or weighty in the circumstances, and held that this ground did not meet the threshold for leave.
A further proposed ground alleged that the Tribunal had failed to consider country of origin information about prosecutions in Algeria for irregular exit. The Tribunal’s decision said that it had considered all documents and consulted the country information on file, including a UK Home Office report on Algeria dated 17 January 2013. It assessed that the material did not clearly substantiate the applicant’s claim.
Citing an earlier High Court judgment, O’Regan said that where a Tribunal decision says it considered submitted documents, the applicant bears the onus of showing otherwise. A narrative discussion of documents is required where evidence is positively rejected, rather than where it is considered insufficient to support the claim. She found that the applicant had not discharged that onus and refused leave.