E.G. (Albania) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 04 June 2019
• Neutral Citation: [2019] IEHC 474
• Docket Number: [2018 No. 713 J.R.]
• Court: High Court
• Date: 04 June 2019

[2019] IEHC 474

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 713 J.R.]

BETWEEN

E.G. (ALBANIA)

APPLICANT

AND

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

AND

IRELAND

RESPONDENTS

Judicial review – Subsidiary protection – Country reports – Applicant seeking judicial review – Whether the respondent’s use of the country reports was irrational and/or selective

Facts: The applicant was born in Albania in 1997 and claimed persecution there based on sexual orientation. He travelled to Ireland via Montenegro, Croatia, Slovenia, Italy and Spain with a false Romanian ID card obtained by his father. That ID was destroyed when he arrived in the State on 23rd October, 2014. He applied for asylum as an unaccompanied minor on 28th October, 2014 and that application was refused on 7th April, 2015. On 8th April, 2015, he appealed to the Refugee Appeals Tribunal against that refusal. Country reports were submitted to the tribunal on 20th April, 2015. Following the commencement of the International Protection Act 2015 on 31st December, 2016, the applicant applied for subsidiary protection on 13th April, 2017. On 7th March, 2018, he was informed that the subsidiary protection application had been refused, as had permission to remain pursuant to s. 49 of the 2015 Act. The applicant appealed to the first respondent, the International Protection Appeals Tribunal (IPAT), on 14th March, 2018 against the subsidiary protection refusal and in due course submitted country reports as well as legal submissions. An oral hearing took place on 19th June, 2018. On 9th August, 2018 the applicant was informed that the tribunal had rejected the appeals by decision dated 8th August, 2018. The notice of the decision was received around 13th August, 2018 and proceedings were filed on 29th August, 2018. The primary relief sought in the proceedings was an order of certiorari directed to the IPAT decision. The High Court (Humphreys J) granted leave on 8th October, 2018. A statement of opposition was delivered dated 1st April, 2019. Ground 1 contended that “the decision should be quashed because ...it contains findings which were arrived at unfairly and/or were erroneous and/or irrational” with particular reference to paras. 4.1, 5.12, 5.13 and 5.15. Ground 2 alleged that “the IPAT decision is vitiated by the confusion arising as to whether the applicant’s claim was rejected by reason of a finding that he chooses to keep his sexual orientation private or that Albanian society ostracises but doesn’t persecute homosexuals or that internal relocation is the remedy or that State protection is the remedy”. Ground 3 led that “the use made by the IPAT of the country reports is irrational and/or selective”.

Held by Humphreys J that, as far as the allegation of unfairness was concerned, no particular basis was advanced, and certainly none was demonstrated, for the plea that the findings were arrived at unfairly. He held that the claim of error or irrationality was not made out either. He held that there was no confusion as to the rationale of the decision. He held that the use of the country material was not irrational or selective.

Humphreys J held that the proceedings would be dismissed.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 4th day of June, 2019

1 The applicant was born in Albania in 1997 and claims persecution there based on sexual orientation. He travelled to Ireland via Montenegro, Croatia, Slovenia, Italy and Spain with a false Romanian I.D. card obtained by his father. That ID was destroyed when he arrived in the State on 23rd October, 2014. He applied for asylum as an unaccompanied minor on 28th October, 2014 and that application was refused on 7th April, 2015.

2 On 8th April, 2015, he appealed to the Refugee Appeals Tribunal against that refusal. The notice of appeal itself is undated and the grounds of appeal are generic and unparticularised. Country reports were submitted to the tribunal on 20th April, 2015. Following the commencement of the International Protection Act 2015 on 31st December, 2016, the applicant applied for subsidiary protection on 13th April, 2017. On 7th March, 2018, he was informed that the subsidiary protection application had been refused, as had permission to remain pursuant to s. 49 of the 2015 Act. The s. 49 refusal, while not challenged in the proceedings, is strangely worded and bordering on the contradictory in the sense that at p. 11, the IPO states that there are no exceptional circumstances but on p. 12 it states that the application is rejected ‘ having considered the applicant's family and the exceptional circumstances of this case…’. The respondents were not really in a position to explain this satisfactorily in the absence of instructions from the specific decision-maker, which were not available during the hearing.

3 The applicant appealed to the International Protection Appeals Tribunal on 14th March, 2018 against the subsidiary protection refusal and in due course submitted country reports as well as legal submissions. An oral hearing took place on 19th June, 2018 with Ms. Lisa McKeogh B.L. appearing for the applicant. On 9th August, 2018 the applicant was informed that the tribunal had rejected the appeals by decision dated 8th August, 2018. The key finding in the tribunal member's decision was that ‘ I find that what the appellant fears is not persecution’. While the adverse incidents suffered by the applicant, including one incident of violence as well as harassment, bullying, intimidation, name-calling and stone throwing were noted, the tribunal member said that ‘ I find in this case that it does not rise to the level of persecution’. She also noted that insofar as the applicant's difficulties in school were concerned, the applicant was no longer of school-going age and thus the issue of bullying in that context does not arise in this case. She said that ‘all of the indicators point to the appellant being at risk of some form of ostracization, depending upon where he chooses to settle, however I cannot conclude that there is a real risk that...