IM v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms Justice Tara Burns
• Judgment Date: 25 November 2020
• Neutral Citation: [2020] IEHC 615
• Docket Number: Record No: 2020/653JR
• Court: High Court
• Date: 25 November 2020

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

BETWEEN:

IM

APPLICANTS

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2020] IEHC 615

Tara Burns

Record No: 2020/653JR

THE HIGH COURT

JUDICIAL REVIEW

Judgment delivered by Ms Justice Tara Burns on 25th day of November 2020

General

1 The Applicants seek leave to apply by way of Judicial Review for the following principal reliefs:-

a) An Order of Certiorari of the decision of the First Respondent dated 18 August 2020, made under Section 46(3)(a) of the International Protection Act 2015 (hereinafter referred to as the “Act of 2015”) refusing to grant the Applicants either refugee or subsidiary protection declarations;

b) A Declaration that ss.33 and 72 of the Act of 2015 combined are void as ultra vires and/or incompatible with Ireland's obligations under Council Directive 2005/85/EU of 1 December 2005 (hereinafter referred to as “the Procedures Directive”) and/or the Common European Asylum System;

c) A Declaration that the Second Respondent erred, contrary to s.72 of the Act of 2015, in the designation of Georgia as a safe country of origin.

Test for Leave regarding the decision of the First Respondent

2 Section 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended, applies to these proceedings. Accordingly, the Applicants must satisfy the Court that there are substantial grounds for contending that the decision in their cases ought to be quashed.

3 A “substantial” ground must, in the words of Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125, be ‘ arguable, weighty and must not be trivial or tenuous’. She added ‘a ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial’.

The Facts

4 The Applicant is from Gori in Georgia. He arrived in the State on 9 June 2019. He made a claim for international protection on 10 June 2019 on the basis that he would face persecution or serious harm as a result of an assault on him by an unnamed neighbour in 2009 and 2012. He also claimed protection due to his Ossetian ethnicity, which was derived from his father's side, who is now deceased. His mother is Georgian.

5 The IPO carried out the preliminary interview under s.13 of the Act of 2015 on 24 June 2019. The Applicant submitted his Questionnaire where he ticked ‘nationality’ for the Convention ground and a ‘serious and individual threat to a civilian's life by reason of indiscriminate violence in a situation of international or internal armed conflict’ for the subsidiary protection aspect of the claim.

6 The Applicant was interviewed under s.35 of the Act of 2015 on 18 December 2019. The IPO issued the s.39 Report on 22 January 2020 which recommended that the Applicant not be given either a declaration of refugee status or subsidiary protection. As part of its findings, the IPO relied on s.39(4)(e) of the Act of 2015 that the Applicant's country of origin is a safe country. The Applicant was informed of the decision by letter dated 27 January 2020.

7 The Applicant submitted a Notice of Appeal to the First Respondent on 3 February 2020 on the basis that the IPO had erred in the consideration of the Applicant's credibility regarding the alleged attack in 2009 and 2012. He requested an oral hearing but gave no reasons for the request.

8 One of the effects of a finding that Georgia is a safe country is that s. 43(b) of the Act of 2015 requires that the First Respondent consider the appeal without holding an oral hearing unless it is satisfied that it would not be in the interests of justice to so do.

9 The First Respondent wrote to the Applicant on 11 June 2020 requesting submissions as to why the interests of justice required an oral hearing. The Applicant replied on 16 June 2020. The primary reason for seeking an oral hearing was to put forward medical documentation, however this was not yet to hand. The Applicant requested some time to obtain the documents and then proposed to make submissions within four weeks of receipt of the documents. The Applicant requested an oral hearing so that he could have “ an opportunity to explain the documents, their relevance and the reason for late submission of same”.

10 On 6 July 2020, the Applicant furnished submissions again requesting an oral hearing, and advising that he was awaiting medical documentation. The Applicant requested that the Minister treat him as a person from a minority Ossetian ethnic group and to disapply the safe country of origin designation to him. The First Respondent acknowledged receipt on 7 July 2020 and gave the Applicant until 14 July in which to submit the documentation, failing which he was informed that the First Respondent would proceed to an assessment of the appeal. No further documentation was received by the First Respondent within that period. Accordingly, the First Respondent proceeded to assess the appeal.

11 The First Respondent was satisfied that the safe country of origin designation applied to the Applicant notwithstanding his claim of membership of an ethnic minority. It was not satisfied that the interest of justice required an oral hearing. It was satisfied that it could determine the issues, and properly assess the further documentation that was submitted by the Applicant on 30th July 2020 without recourse to an oral hearing.

12 The First Respondent proceeded to assess the Applicant's claim and ultimately affirmed the IPO recommendation that the Applicant should not be given a refugee declaration. The First Respondent also considered the claim for subsidiary protection in light of the accepted facts and found that the Applicant was not entitled to subsidiary protection.

Safe Country of Origin Designation

13 The Applicant submits that the designation by the Second Respondent of Georgia as “a safe country of origin” for the purposes of ss.33 and 72 of the Act of 2015 is ultra vires the Procedures Directive and/or is otherwise unlawful.

14 Section 33 of the Act of 2015 provides:-

“A country that has been designated under section 72 as a safe country of origin shall, for the purposes of the assessment of an application for international protection, be considered to be a safe country of origin in relation to a particular applicant only where—

(a) the country is the country of origin of the applicant, and

(b) the applicant has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her eligibility for international protection.”

15 Section 72 of the Act of 2015 provides:-

“(1) The Minister may by order designate a country as a safe country of origin.

(2) The Minister may make an order under subsection (1) only if he or she is satisfied that, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

(3) In making the assessment referred to in subsection (2), the Minister shall take account of, among other things, the extent to which protection is provided against persecution or mistreatment by—

(a) the relevant laws and regulations of the country and the manner in which they are applied,

(b) observance of the rights and freedoms laid down in the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the United Nations Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention on Human Rights,

(c) respect for the non-refoulement principle in accordance with the Geneva Convention, and

(d) provision for a system of effective remedies against violations of those rights and freedoms.

(4) The Minister shall base his or her assessment referred to in subsection (2) on a range of sources of information including in particular information from

_

(a) other Member States,

(b) the European Asylum Support Office,

(c) the High Commissioner,

(d) the Council of Europe, and

(e) such other international organisations as the Minister considers appropriate”.

16 Counsel for the Applicant submits that the power vested in the Second Respondent to designate a country as a safe country of origin for international protection applicants, derives from Article 37(1) and Annex 1 of EU Directive 2013/32 (hereinafter referred to as “the Procedures Directive Recast”). He submits that as Ireland has not adopted the Procedures Directive Recast, the State is not entitled to avail of the provisions of that Directive in order to apply the safe country of origin concept, as defined at Annex 1, to international protection applicants, which includes by definition at s.2 of the Act of 2015, a person declared to be a refugee or a person eligible for subsidiary protection.

17 Counsel for the Respondents submits that this argument is untenable. She submits that the safe country of origin concept was established by the Procedures Directive. This was then provided for in domestic law by s.7(g) of the Immigration Act 2003 which substituted s.12(4) of the Refugee Act 1996. This was further amended by the European Communities (Asylum Procedures) Regulations 2011 (S.I. 51 of 2011) which gave effect to Annex II of the Procedures Directive. Both the 1996 Act and the European Communities (Asylum Procedures) Regulation 2011 were repealed by s.6 of the Act of 2015. However, the Act of 2015, re-enacted the safe country of origin concept...