G.K. v The International Protection Appeals Tribunal, The Minister for Justice and Equality, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 01 April 2022 |
| Neutral Citation | [2022] IEHC 204 |
| Court | High Court |
| Docket Number | [Record No. 2021/496/JR] |
[2022] IEHC 204
[Record No. 2021/496/JR]
THE HIGH COURT
International protection – Irrationality – Extension of time – Applicant seeking to set aside the decision of the first respondent to affirm the recommendation of the International Protection Office that the applicant be given neither a refugee declaration nor a subsidiary protection declaration – Whether extension of time should be granted
Facts: The applicant, a Georgian national, arrived in Ireland in October 2018 and sought international protection from the International Protection Office (the IPO). The IPO denied that request, and the applicant appealed that decision to the first respondent, the International Protection Appeals Tribunal. The applicant applied to the High Court seeking to set aside the decision of the first respondent to affirm the recommendation of the IPO that the applicant be given neither a refugee declaration nor a subsidiary protection declaration. The applicant submitted that five findings in the Tribunal’s decision were irrational, in that they were findings that were not open to the Tribunal to make on the evidence before it. The respondent submitted that the applicant’s challenge should be dismissed, because it was made out of time and no good reason had been put forward as to why the time period should be extended. On the substantive aspect, the respondent submitted that all the findings made by the Tribunal were supported by the evidence before it.
Held by Barr J that the court refused to grant an order extending the time within which the applicant’s challenge was brought, on the basis that there was no good or sufficient reason to do so. Barr J held that the court found all the findings of the respondent to be lawful.
Barr J refused all the reliefs sought by the applicant in his notice of motion.
Reliefs refused.
JUDGMENT of Mr. Justice Barr delivered electronically on the 1st day of April, 2022.
The applicant is a 25 year old Georgian national. He is single and has no children. He arrived in Ireland in October 2018 and sought international protection from the International Protection Office (hereafter; “the IPO”). The IPO denied this request, and the applicant appealed this decision to the first named respondent.
The applicant seeks to set aside the decision of the first named respondent to affirm the recommendation of the IPO that the applicant be given neither a refugee declaration nor a subsidiary protection declaration.
The applicant challenges this decision on several grounds, which are set out in detail later in the judgment. In essence, the applicant submits that five findings in the Tribunal's decision were irrational, in that they were findings that were not open to the Tribunal to make on the evidence before it.
The respondent submitted that the applicant's challenge should be dismissed, because it was made out of time and no good reason had been put forward as to why the time period should be extended. On the substantive aspect, the respondent submitted that all the findings made by the Tribunal were supported by the evidence before it.
As previously stated, the applicant is a national of Georgia, who is 25 years old, having been born on 7th May, 1996. He is a single man with no children. He left Georgia on 25th October, 2018 and arrived in Dublin Airport on 28th October, 2018, having travelled through Vienna, Austria.
The applicant made an application for international protection, pursuant to s. 15 of the International Protection Act 2015 (hereafter; “the 2015 Act”), on or around 30th October, 2018 at Dublin Airport. This claim was made on the basis of his membership of a particular social group on account of his sexuality. On 13th December, 2018, the applicant submitted the Application for International Protection Questionnaire (hereafter, “the Questionnaire”) to the IPO, after a preliminary interview.
The applicant was further interviewed by the IPO on 1st August, 2019, pursuant to s. 35 of the 2015 Act. The answers given by the applicant during the course of this interview will be elaborated upon later in the judgment.
On 19th November, 2019, the IPO issued a report pursuant to s. 39 of the 2015 Act, which recommended to the Minister for Justice and Equality that the applicant should not be given a refugee declaration, nor any subsidiary protection declaration.
In this report, the IPO, in assessing the credibility of the applicant, found that the applicant had given contradictory accounts of his relationships and he made adverse findings in relation to the applicant's knowledge, or lack thereof, of Identoba, the high-profile, pro-LGBT group, which organised the demonstration that he attended on 17th May, 2013. The report also found no grounds upon which to base the fear of persecution held by the applicant, should he be returned to Georgia. On the basis of the foregoing, the IPO found the applicant had not established a well-founded fear of persecution in order to acquire refugee status, as required by s. 2 of the 2015 Act.
Further, the IPO found that the applicant would not face a real risk of torture/inhuman treatment or punishment/degrading treatment or punishment if returned to his country of origin, on the basis of information available about Georgia, which was to the effect that Georgia was a safe country for people of the applicant's sexual orientation. On that basis, the IPO refused to recommend any subsidiary protection declaration in respect of the applicant.
The applicant submitted a Notice of Appeal, pursuant to s. 41 of the 2015 Act, to the first respondent on 3rd December, 2019. Although it was initially recommended that the hearing of the appeal be completely paper-based, a decision was subsequently taken by the first respondent to hold an oral hearing of the appeal, which took place on 21st October, 2020.
The first respondent, in a decision dated 8th March, 2021 and issued to the applicant on 9th March, 2021, affirmed the recommendation of the IPO that the applicant be given neither a refugee declaration, nor a subsidiary protection declaration. It is this decision that the applicant seeks to have quashed by this court.
A preliminary objection raised by the respondent to the hearing of this action was that the applicant was out of time to challenge the decision of the first respondent. Pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended), an applicant has 28 days within which to bring a challenge to a decision of the Tribunal. Section 5 also provides that such time may be extended where the court “ considers that there is good and sufficient reason for extending the period within which the application shall be made.”
The applicant received the decision of the first respondent on or around 9th March, 2021. The applicant's statement of grounds was filed on 27th May, 2021. The parties were agreed that the application was made outside the prescribed time frame, although they did not agree on the extent of the delay.
Mr. Phillip Moroney BL, on behalf of the applicant, submitted that the delay in the initiation of the proceedings was excusable and that there was good and sufficient reason for the court to extend the time period within which the application could be made. It was submitted that the delay had been caused by other commitments of counsel.
Counsel submitted that the dicta of Keane J. in NN v Minister for Justice and Equality [2017] IEHC 99, indicated that the issue of delay should be determined in accordance with the merits of the particular case. It was submitted that it was clear that the court must consider the merits of the substantive action when deciding whether there is good and sufficient reason to extend the time period. Counsel also relied on GK v Minister for Justice, Equality and Law Reform [2002] 2 IR 418 in that regard.
Counsel submitted that the diligence of the applicant should be considered in deciding whether to extend the time period, relying on GK v Minister for Justice, Equality and Law Reform and CS v Minister for Justice, Equality and Law Reform [2005] 1 IR 343 in support of this submission. In the present case, it was submitted that the applicant had indicated to his solicitor on 10th March, 2021, one day after receiving the decision of the first respondent, that he wished to challenge the decision.
Counsel accepted responsibility for the delay and submitted that the applicant had not been at fault. Further, counsel submitted that the period of delay fell within the Easter vacation of 2021.
Turning to the substantive issues in the case, the applicant challenged five of the findings of the respondent in its report of 8th March, 2021. Firstly, counsel submitted that the respondent had erred in law in its finding at para. 4.9 of its report, insofar as the finding was irrational in the legal sense. In this paragraph, the respondent made an adverse credibility finding against the applicant on the basis that he could not name Identoba, as the organisers of the pro-LGBT protest that he had attended on 17th May, 2013.
Counsel submitted that there was no obvious reason the applicant should have known who the organisers were, nor did the respondent explain why that may be the case. Thus, it was submitted, the finding was based on slim or no evidence; and/or based on irrelevant material; and/or devoid of reasons or reasoning, contrary to law.
Counsel relied on several UK cases including Piggott Bros and Co Ltd v. Jackson [1992] ICR 85, R. v. Secretary of State for Home Affairs, ex parte Zakrocki [1996] COD 304 and R. v. Newbury DC, ex parte Blackwell [1988] COD 155,...
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