G & M v The International Protection Appeals Tribunal and Others

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Butler
• Judgment Date: 21 October 2025
• Neutral Citation: [2025] IECA 208
• Docket Number: Court of Appeal Record Number: 2024/50 Court of Appeal Record Number: 2024/11 High Court Record Number: 2022/915JR

Between/

Z.M.

Applicant/Appellant

and

The International Protection Appeals Tribunal and The Minister for Justice and Equality

Respondents

Between/

N.G.

Applicant/Appellant

and

The International Protection Appeals Tribunal, The Minsiter for Justice and Equality, Ireland and The Attorney General

Respondents

[2025] IECA 208

Whelan J.

Butler J.

Meenan J.

Court of Appeal Record Number: 2024/50

High Court Record Number: 2022/34JR

Court of Appeal Record Number: 2024/11

High Court Record Number: 2022/915JR

THE COURT OF APPEAL

CIVIL

State protection – Well-founded fear of persecution – Real risk of serious harm – Appellants seeking state protection – Whether the decision maker should have applied a statutory presumption for the appellants' benefit in his analysis of the availability of state protection

Facts: The appellants (ZM and NG), failed protection applicants, challenged the manner in which the first respondent, the International Protection Appeals Tribunal (the Tribunal), reached the decision refusing their appeals. The appellants contended that the decision maker did not apply a statutory presumption which he should have applied for their benefit in his analysis of the availability of state protection; the presumption in question under s. 28(6) of the International Protection Act 2015 provides that where past persecution is established, it will be a “strong indicator” of future persecution. An issue arose as to the content of state protection and whether national authorities must be able to prevent the materialisation of threats of persecution or serious harm in order for the protection of the state to be effective. Both appellants contended that the fact the decision maker had regard to the designation of their country of origin as a safe country was unlawful. Two additional issues were raised by ZM concerning the treatment of the evidence by the decision maker. The first queried the standard of proof applicable to the ascertainment of past events and the second the applicability of the “benefit of the doubt” to the decision maker’s analysis of credibility and plausibility. The judicial reviews were decided against the appellants by two different High Court judges. Both High Court judges granted leave to appeal to the Court of Appeal under s. 5(6) of the Illegal Immigrants (Trafficking) Act 2000 in respect of an identical suite of questions concerning the meaning of the terms “well-founded fear of persecution” and “real risk of serious harm” and the relationship of those terms to the concept of state protection.

Held by Butler J that: there was no failure on the part of the Tribunal to apply the presumption for the benefit of the appellants; the designation of their country of origin as a safe country was merely an additional factual matter which supported the conclusion which was available to the Tribunal on the basis of the country of origin information in each case; the Tribunal did not err in finding that there was adequate state protection available to the appellants in either Georgia or Albania; ZM had not shown that the standard of proof applied to his application was legally incorrect and the application of a lower standard of proof to the determination of the past or historic elements of that claim would not have made any difference in the particular circumstances; and a decision maker is entitled not to accept evidence which it regards as implausible, which is inconsistent with the other evidence in the case and which is not supported by country of origin information.

Butler J rejected all of the grounds of appeal advanced by the appellants and upheld the trial judges’ decisions to refuse to grant relief.

Appeals dismissed.

UNAPPROVED

NO FURTHER REDACTION NEEDED

JUDGMENT of Ms. Justice Butler delivered on the 21 ^st day of October 2025

Introduction

1 . This judgment deals with two appeals which, because they raise identical issues in similar albeit not identical circumstances, were heard together. The appellants in both cases are failed protection applicants who challenge the manner in which the appellate decision maker (“IPAT” or “the Tribunal”) reached the decision refusing their appeals.

2 . The similarity between the appeals arises because the claim for protection in both cases concerned threats made to the appellants by criminal elements in their countries of origin, Georgia and Albania respectively, and the assertion that the police and other authorities in those countries were unable to effectively protect the appellants against those threats. Additionally, both Georgia and Albania have been designated by the Minister for Justice as safe countries of origin, the significance of which will be considered further below. The differences, which are not material to the legal issues, arise from the fact that Z.M., the Georgian appellant, was actively involved in the criminal conduct (a feud between two rival factions) which ultimately led to the threats of which he complains whereas N.G., the Albanian appellant, was unwittingly caught up in the criminal conduct of third parties due to his employment as a restaurant worker by one of them.

3 . The central issue in the appeal, which was raised in identical terms in both cases, arises because the persecution or serious harm of which the appellants complain is at the hands of “non-state actors” and thus, the focus of the negative decisions against them was on the extent to which effective state protection was available to them against these third parties in their countries of origin. This in turn involved a consideration of the extent to which the availability of state protection was or should have been considered by the decision-maker before concluding, as he did, that the persecution or serious harm feared by the appellants was “well-founded” or constituted a “real risk”.

4 . Of itself it might not appear to make much difference whether the availability of state protection is considered as part of the well-foundedness of the fear of persecution (or the reality of the risk of serious harm) or as a subsequent, separate step provided it is appropriately considered by the decision maker before concluding whether or not a person is a refugee or in need of subsidiary protection. However, in this case the appellants contend because the decision maker split the analysis of these issues in the manner in which he did, he did not apply a statutory presumption – sometimes termed an evidential advantage — which he should have applied for their benefit in his analysis of the availability of state protection. The presumption in question under Section 28(6) of the International Protection Act 2015 (“the 2015 Act”) provides that where past persecution is established, it will be a “strong indicator” of future persecution.

5 . Finally under this heading, an issue arises as to the content of state protection and whether national authorities must be able to prevent the materialisation of threats of persecution or serious harm in order for the protection of the state to be effective.

6 . Both appellants contend that the fact the decision maker had regard to the designation of their country of origin as a safe country was unlawful. In essence the contention seems to be that unless the designation is being formally relied on, presumably to treat the application as manifestly unfounded or for similar reasons, it cannot be invoked at all by the decision maker and particularly not in an analysis of the availability of state protection.

7 . Two additional issues are raised by the Z.M. appellant which are not raised by the N.G. appellant. Both issues concern the treatment of the evidence by the decision maker. The first queries the standard of proof applicable to the ascertainment of past events and the second the applicability of the “benefit of the doubt” to the decision maker's analysis of credibility and plausibility.

8 . These judicial reviews were decided against the appellants by two different High Court judges, Hyland J. in the case of Z.M. [2023] IEHC 637 and Phelan J. in the case of N.G. [2023] IEHC 535. Both High Court judges granted leave to appeal to this court under section 5(6) of the Illegal Immigrants (Trafficking) Act 2000 (as amended) in respect of an identical suite of questions concerning the meaning of the terms “ well-founded fear of persecution” and “ real risk of serious harm” and the relationship of those terms to the concept of state protection. The appellants framed the issue slightly differently in their written submissions, but all of the points raised in the four subparagraphs of the question certified are covered in their analysis of the issues as presented to this court. Z.M. pursued the two additional points outlined above without having been granted leave to appeal on them. However, the respondent accepted that once leave to appeal was granted under section 5(6), the appellant was at large to pursue any grounds of appeal regardless of whether the point had been certified and even where it had been expressly refused by the High Court judge.

9 . The outcome of these cases in the High Court was perhaps unsurprising in circumstances where the main issues had been raised in earlier cases and decided against the respective applicants (although some of those applicants did succeed on other, narrower, grounds). In particular, the argument regarding whether the availability of state protection must be considered before a conclusion reached that the fear of persecution is well-founded was made in identical terms to and rejected by Heslin J. in T.A. v. The International Protection Office [2023] IEHC 390. Further, in O.M. v. IPAT [2025] IEHC 51 O'Regan J. considered and determined the standard of proof to be applied to the consideration of past events in an application for international protection.

10 . As the issues in the appeal are very dependent on the...