G.A. v International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 23 June 2022
• Neutral Citation: [2022] IEHC 440
• Court: High Court
• Docket Number: Record No. 2021/465JR

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act, 2000 (As Amended)

Between

G.A. and N.G.

Applicants

and

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

Respondents

[2022] IEHC 440

Record No. 2021/465JR

THE HIGH COURT

Judicial Review

International protection – Credibility – Oral hearing – Applicants seeking international protection – Whether the first respondent’s adverse credibility findings were irrational or unreasonable

Facts: The applicants, nationals of Georgia, came to Ireland in August 2019 and claimed asylum. In a decision of 6 August 2020, the International Protection Office (IPO) made adverse credibility findings. On 14 August 2020, a notice of appeal was sent to the first respondent, the International Protection Appeals Tribunal (IPAT). On 2 November 2020, the applicants’ solicitors’ request for an oral hearing was refused. On 14 April 2020, IPAT furnished their decision in respect of both appeals, dated 9 April 2021, determining that the applicants should be given neither refugee declarations, nor subsidiary protection declarations. Adverse credibility findings were made by IPAT. By order made on 17 May 2021 (Burns J) the applicants were granted leave to apply to the High Court by way of an application for judicial review. The applicants sought to quash both the 2 November 2020 decision and the 9 April 2021 decision by IPAT. The applicants also sought declarations to the effect that the second respondent, the Minister for Justice and Equality, erred in designating Georgia as a safe country, that s. 43 of the International Protection Act 2015 is unconstitutional, and that s. 43 is incompatible with the European Convention on Human Rights (ECHR). It was contended that the failure on the part of IPAT to provide an oral hearing resulted in the IPAT falling into error by making “new” adverse credibility findings which were not put to the applicants. It was also contended that the designation of Georgia as a safe country of origin was unwarranted or unlawful. In addition, the applicants made what was described as “a residual argument” to the effect that, insofar as s. 43 of the 2015 Act allowed IPAT to make “new” credibility findings which were not put to the applicants at an oral hearing or by some other means, the section is unconstitutional.

Held by Heslin J that the conclusion reached by IPAT in respect of credibility could neither be considered irrational or unreasonable having regard to the material which was before IPAT; nor had the applicants established that the incorrect standard of proof was applied by IPAT. He held that on the facts of the case, this was not a situation where any credibility issue was raised for the first time on appeal and there had been no failure to afford the applicants an opportunity to deal with any relevant issue. He held that IPAT considered the submissions in support of the request for an oral hearing and declined to grant an oral hearing for clear and cogent reasons, consistent with the authorities cited. He held that the applicants had not established either an ongoing duty to “re-consider” or to “continue considering” the grant of an oral hearing, or the breach of same. He held that the evidence before the court demonstrated that the applicants simply did not discharge the burden of showing that Georgia was not a safe country in the context of the applicant’s specific facts and circumstances. He held that not only had the applicants failed to demonstrate that any Articles in the ECHR are incompatible with domestic legislation, the provisions of the 2015 Act (in particular s. 43) are entirely consistent with: (i) the explicit terms of the recast Asylum Procedures Directive; (ii) fair procedures rights as interpreted in EU authorities; (iii) Supreme Court jurisprudence with regard to the right to be heard; (iv) any first-principles analysis of the requirements of natural and constitutional justice; and (v) the evidence in the case which demonstrated that numerous invitations were given to the applicants to proffer all information and documentation relevant to their claim.

Heslin J held that the applicants had not established an entitlement to any of the reliefs sought, and their proceedings fell to be dismissed. In circumstances where the respondents had been entirely successful, his preliminary view in respect of the question of costs was that they should ‘follow the event’.

Reliefs refused.

JUDGMENT of Mr. Justice Heslin delivered on the 23 ^rd day of June, 2022

Introduction

1 . The applicants are husband and wife and are both nationals of Georgia. They came to Ireland in August 2019 and claimed asylum. Georgia is a country which the second named respondent (“the Minister”) has designated as a safe country of origin. The applicants were legally represented throughout their applications for international protection. They attended at the International Protection Office (“IPO”) on 26 August 2019 and completed application forms for international protection. They were provided with international protection Questionnaires and completed them in the Georgian language. These were signed on 2 October 2019. The applicants were interviewed by the IPO on 9 March 2020.

2 . In a decision of 6 August 2020, the IPO determined that neither of the applicants had established a well-founded fear of persecution and the IPO made adverse credibility findings. On 14 August 2020, a Notice of Appeal was sent to the first named respondent, the International Protection Appeals Tribunal (“the IPAT”). The applicants' solicitors requested an oral hearing. In circumstances where Georgia has been designated as a safe country of origin, the ‘default’ position, having regard to s. 43 of the International Protection Act, 2015 (“the 2015 Act”) is that IPAT shall decide an appeal without holding an oral hearing, unless it considers that it is not in the interests of justice to do so. The request for an oral hearing was refused.

3 . On 13 November 2020 legal submissions were made to IPAT. On 14 April 2020, IPAT furnished their decision in respect of both appeals, dated 9 April 2021, determining that the applicants should be given neither refugee declarations, nor subsidiary protection declarations. Adverse credibility findings were made by IPAT.

4 . In the present proceedings, a central contention advanced on behalf of the applicants is that they should have received an oral hearing of their appeal to IPAT. It is also contended that IPAT made “new” credibility findings, which were adverse to the applicants. It is contended that the failure on the part of IPAT to provide an oral hearing resulted in the IPAT falling into error by making “new” adverse credibility findings which were not put to the applicants. It is also contended that the designation of Georgia as a safe country of origin was unwarranted or unlawful. In addition, the applicants make what was described as “a residual argument” to the effect that, insofar as s. 43 of the 2015 Act allowed IPAT to make “new” credibility findings which were not put to the applicants at an oral hearing or by some other means, the section is unconstitutional.

5 . It is acknowledged that the application for protection made by the second named applicant is dependent on that made by her husband, the first named applicant. This is in circumstances where the second named applicant did not advance a claim on an individual basis, but sought to rely on the alleged facts underlying the claim made by her husband. The second named applicant confirmed that she had not experienced any issues personally.

6 . By order made on 17 May 2021 (Ms. Justice Burns) the applicants were granted leave to apply by way of an application for judicial review in respect of the reliefs set out at para. D, on the grounds set out at para. E in the applicants' Statement of Grounds dated 12 May 2021. The said order specified that leave was granted:

“ Without prejudice to the determination at the substantive stage of any point which could have been contended for by the respondents at the leave stage including any point in relation to time limits for the bringing of this application.”

7 . As is clear from para. D of the Statement of Grounds, the applicants seek to quash both the 2 November 2020 decision (to refuse an oral hearing) and the 9 April 2021 decision by IPAT (affirming the IPO's earlier recommendation). The applicants also seek declarations to the effect that the Minister erred in designating Georgia as a safe country; that s. 43 of the 2015 Act is unconstitutional; and that s. 43 is incompatible with the European Convention on Human Rights.

“Factual grounds”

8 . Paragraphs 11 to 23, inclusive, of the applicants' Statement of Grounds, comprise a setting out of the “Factual grounds” relied on. The following is the applicant's account which reflects the summary pleaded in the applicants' statement of Grounds and additional detail set out in his international protection application.

9 . Mr. A. is a Georgian national and an Orthodox Christian, born the 2 ^nd September, 1971. Mr. A. worked as a car dealer in Georgia and travelled internationally as part of that role. N.G. is a Georgian national, and an Orthodox Christian, born the 2 ^nd October, 1973. The applicants are married to one another and the couple have two children together: M. who was born on the 16 ^th August, 1993 and D. who was born on the 8 ^th February, 2000.

10 . Mr. A. met a woman named Z. in late November 2018. He began an affair with her and in January 2019. He was assaulted, and kidnapped by two men, one of whom claimed to be her husband. Two more men joined them. With respect to events of 20 January 2018, the applicant claimed that someone hit him hard in the head and he lost consciousness. When he regained consciousness, his hands were tied...