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

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 October 2019
• Neutral Citation: [2019] IEHC 699
• Court: High Court
• Docket Number: [2019 No. 21 J.R.]
• Date: 21 October 2019

[2019] IEHC 699

THE HIGH COURT

JUDICIAL REVIEW

Richard Humphreys

[2019 No. 21 J.R.]

BETWEEN

E.L. (ALBANIA), R.B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND E.L.), K.B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND E.L.)

AND

D.B. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND E.L.)

APPLICANTS

AND

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

RESPONDENTS

Judicial review – Country of origin information – International protection – Applicants seeking to challenge the validity of a decision of the respondent which dismissed their appeals against the refusal of protection – Whether there was a failure to consider relevant country information

Facts: The applicants, an Albanian mother and her three children, challenged the validity of a decision of the first respondent, the International Protection Appeals Tribunal, under s. 46(3)(a) of the International Protection Act 2015 which dismissed their appeals against the refusal of protection. The challenge turned on the manner in which the tribunal dealt with country of origin information.

Ground 1 alleged that “If the finding made by the Tribunal that there is no COI setting out that the first applicant will be persecuted if she were to work again as a political journalist in Albania means the Tribunal understood that there was no COI that indicated a risk of persecution to political journalists in Albania, the Tribunal materially erred in fact and failed to consider relevant COI before it that showed such a risk”. Ground 2 alleged that “If the finding that there is no COI setting out that the applicant will be persecuted if she returns to work as a political journalist in Albania means that the Tribunal considered the relevant COI showing risk but considered that it does not prove that the first applicant will be persecuted, IPAT erred in law by applying an erroneously high standard of proof”. Ground 3 alleged that “Because of the ambiguity of the words used to express a finding regarding there being no COI showing that the first applicant will be persecuted if she returns to work as a political journalist in Albania, the Tribunal has acted in breach of constitutional justice and in breach of s. 46(6) of the 2015 Act”. Ground 4 alleged that “The finding that the first applicant’s evidence of past persecution for having published political articles as a journalist is not credible was made unlawfully because the Tribunal made this finding in the context whereby it was of the erroneous view that there was no COI to support the claim that political journalists face a risk of persecution in Albania; the Tribunal failed to make this finding in the context of relevant and accurate information about Albania and breached s. 28(4)(a) and (b) of the 2015 Act”.

Held by the High Court (Humphreys J) that all four of the grounds advanced by the applicants had been made out, so whether taken individually or cumulatively the appropriate order was one of certiorari removing for the purposes of being quashed the IPAT decision in relation to the applicants and remitting their appeals to the tribunal to be reconsidered by a different tribunal member.

Relief granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of October, 2019

1 The applicants, who are an Albanian mother and her three children, challenge the validity of a decision of the International Protection Appeals Tribunal under s. 46 (3)(a) of the International Protection Act 2015 which dismissed their appeals against the refusal of protection. The challenge turns on the manner in which the tribunal dealt with country of origin information.

Facts

2 The first-named applicant's husband is Albanian, although apparently he moved to Kosovo when very young. He applied for asylum in the State around 2000, stating that he was Kosovan. That application was refused, and a deportation order was made in 2002. The husband was due to present for deportation on 5th July, 2002 but failed to do so and was classified as an evader. He returned to Albania for a period thereafter.

3 The wife says that from October, 2008 onwards she was working as a journalist in Albania and suffered various threats, particularly as a result of reporting on election corruption. While the tribunal did not fully accept every aspect of her account, it did accept that she worked as a part-time employee of a news organisation from October, 2008 to April, 2009 and that she wrote an article referred to at para. 4.3.3 of the decision, which was related specifically to electoral corruption. While she was in her late teens at that time, it does not follow from that that she could not have been doing sensitive or controversial journalistic work. The tribunal's approach here, which in effect was to classify her as a minor player because of her age, is irrational. Nor does it acknowledge that different countries may have different cultural contexts and practices and that in certain countries, persons may be given responsible positions at a younger age than would be the case in other countries.

4 The first-named applicant met her husband, the father of the second to fourth-named applicants, in Albania in January, 2009 and they married in August, 2009. The first-named applicant claimed that as a result of her journalistic activities there were continuing threats against her, culminating in threats to kill made by telephone. She said in her questionnaire at question 62 that she was threatened in the following terms: “little whore you know we are able to kill you, make you disappear, and nobody would care about you, worthless thing”.

5 The husband and wife then applied for visas to come to Ireland. On 7th April, 2010, the Irish embassy in Athens emailed indicating that the visas were ready for collection. One of the curiosities of the case is how the husband was able to get a visa given that he was the subject of a deportation order. The visa applications were produced to me and appear to have been made on the basis that the parties were not married and had not been to the State earlier. To the husband's credit he used his correct name and date of birth, so that rather puts the ball in the Minister's court. Inferentially, no meaningful check would appear to have been made by the Irish authorities against the existence of a deportation order when deciding to issue the visas. The first-named applicant's instructions, as conveyed to the court by her legal representatives, were that the visa applications were handled by an agent and that she was a stranger to the incorrect details used in those applications. There was no formal evidence by either side on this issue so the fact that there are inaccuracies in the visa applications should not be held against the applicants. Indeed all other things being equal, the fact that the applicants used their correct personal details is corroborative of their instructions as conveyed to me that any errors were not of their engineering.

6 The purpose of the visas appears to have been to attend a conference on issues relating to caring for the elderly, as part of a delegation from the Albanian Conservative Party, which held a meeting with elected representatives of Fine Gael at the conference: see question 62 of the interview. The applicants' permissions were valid until 15th May, 2010, although as will become clear they did not in fact leave by that date.

7 On 29th April, 2010, the husband and wife arrived in the State on these visas, the first-named applicant being pregnant at that point. The first child was born in July, 2010, the second child in December, 2011 and the third child in September, 2014. On 19th September, 2014, shortly after the birth of the third child, the husband's solicitors applied for leave to remain. That was in effect a revocation application, although it was not described as such. That was refused on 16th February, 2015.

8 On 24th April, 2015, the applicants applied for asylum. The husband appears to have remained in the State without status. On 17th June, 2015, the husband reapplied for revocation by a letter sent by his present solicitors. That was acknowledged on 30th June, 2015, with the Department noting that he was an evader. No decision appears to have been taken on the...