M. Y. v International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 13 May 2022
• Neutral Citation: [2022] IEHC 345
• Court: High Court
• Docket Number: Record No. 2021/275 JR

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

Between:

M. Y.

Applicant

and

The International Protection Appeals Tribunal and The Minister for Justice

Respondents

[2022] IEHC 345

Record No. 2021/275 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – International protection – Rebuttable presumption – Applicant seeking an order of certiorari quashing the decision of the first respondent which affirmed the recommendation of the International Protection Office that the applicant should not be granted international protection – Whether the first respondent’s decision was contrary to s. 28(6) of the International Protection Act 2015

Facts: The applicant, in judicial review proceedings, applied to the High Court seeking an order of certiorari quashing the decision of the first respondent, the International Protection Appeals Tribunal, of 5th March 2021 which affirmed the recommendation of the International Protection Office that the applicant should not be granted international protection. The proceedings raised a potentially important point about the application of the principles in the UK Supreme Court decision of HJ (Iran) v SSHD [2011] 1 AC 596 to a case where an applicant believed he may have to conceal his political opinions for fear of persecution if returned to his country of origin. While he was granted leave to challenge the decision on some five grounds, at the hearing of the judicial review, the applicant confined his case to three grounds of challenge to the decision, as follows: (i) that the Tribunal erred in law and acted unreasonably and irrationally in expecting and/or requiring the applicant to hide his political beliefs and to take no part in the Berber separatist movement in Algeria for the rest of his life, to a avoid persecution and serious harm in Algeria; (ii) that the Tribunal’s decision was contrary to s. 28(6) of the International Protection Act 2015, in circumstances where it appeared to have been accepted that the applicant experienced persecution and/or serious harm in Algeria in the past, and in circumstances where there was no good reason to find that such persecution and/or serious harm would not be repeated; and (iii) that the Tribunal’s decision was contrary to s. 28(4) of the 2015 Act and/or in breach of the audi alteram partem principle in failing to take into consideration the applicant’s solicitor’s written submissions on country of origin information dated 15th December 2020, which were not listed as having been considered by it in the impugned decision.

Held by Ferriter J that, in light of the gravity of the decision being taken by the Tribunal where past persecution/serious harm had been made out, the applicant was entitled to a decision and decision-making process which properly and clearly respected the benefit of the rebuttable presumption contained in s. 28(6). In Ferriter J’s view, the Tribunal fell into error in not affording the applicant the benefit of the rebuttable presumption, and in not engaging in a proper analysis of the application of the terms of s. 28(6) to the facts of his case. Accordingly, Ferriter J proposed quashing the Tribunal’s decision and remitting the matter for proper consideration by a different Tribunal. Ferriter J held that the Tribunal should address its mind to the stages of the HJ (Iran) test and in particular, if the Tribunal took the view that the applicant would not be engaging in activism as regards his Berber Separatist views to ask itself the question of why that was so and whether it was for a reason or reasons which the law would regard as being based on a well-founded fear of persecution.

Ferriter J quashed the decision of the Tribunal and remitted the matter for fresh determination by a different tribunal member.

Relief granted.

JUDGMENT of Mr Justice Cian Ferriter delivered this 13 ^th day of May 2022

Introduction

1 In these judicial review proceedings, the applicant seeks an order of certiorari quashing the decision of the first respondent (“the Tribunal”) of 5 ^th March 2021 which affirmed the recommendation of the International Protection Office (“IPO”) that the applicant should not be granted international protection. The proceedings raise a potentially important point about the application of the principles in the UK Supreme Court decision of HJ (Iran) v. SSHD [2011] 1 AC 596 (“ HJ (Iran)”) to a case where an applicant believes he may have to conceal his political opinions for fear of persecution if returned to his country of origin.

2 While he was granted leave to challenge the decision on some 5 grounds, at the hearing of this judicial review, the applicant confined his case to three grounds of challenge to the decision, as follows:

• (i) That the Tribunal erred in law and acted unreasonably and irrationally in expecting and/or requiring the applicant to hide his political beliefs and to take no part in the Berber separatist movement in Algeria for the rest of his life, to a avoid persecution and serious harm in Algeria (“ the HJ (Iran) issue”)

• (ii) That the Tribunal's decision was contrary to s.28(6) of the International Protection Act 2015 (“the 2015 Act”), in circumstances where it appears to have been accepted that the applicant experienced persecution and/or serious harm in Algeria in the past, and in circumstances where there was no good reason to find that such persecution and/or serious harm would not be repeated (“the s.28(6) issue”)

• (iii) That the Tribunal's decision was contrary to s.28(4) of the 2015 Act and/or in breach of the audi alteram partem principle in failing to take into consideration the applicant's solicitor's written submissions on country of origin information (“COI”) dated 15 ^th December 2020, which are not listed as having been considered by it in the impugned decision (“the COI fair procedures issue”).

3 Before turning to a consideration of these issues, it is necessary to set out the background facts.

Background

4 The applicant was born in 1983 in the Bejaia Province in the Kabylia region of Algeria and is an Algerian citizen. The Kabyle people are one of the several Berber (Amazigh) groups indigenous to North Africa, and mainly present in Libya, Algeria and Morocco. The applicant is a member of the Berber Amazigh people who are a large ethnic minority group in Algeria.

5 The applicant supports the ideals of the Berber separatist MAK movement (“MAK”), which is the main political body representing Kabyle interests, and seeks independence for the Berber-majority province of Kabylia in Algeria.

6 On three occasions in May 2008 (two on the same day, and a third occasion later in the same week), when a member of MAK, the applicant was attacked by racist anti-Berber groups by reason of his involvement in pro-Berber separatist activities organised by MAK on a university campus in Blida. university campus in Blida.

7 He left the MAK in 2009 because he feared for his life at the hands of the Algerian authorities if he remained an activist.

8 Having left MAK, the applicant worked as a computer sales agent from 2011 to 2013, while living at home with his father. In 2013 he applied for a visa to move to the United Kingdom. This was granted and he moved to the UK on 25 ^th June 2013. The visa was valid until November 2013, and he stayed on in the United Kingdom illegally after it expired. The applicant travelled to Ireland via Belfast on 25 ^th September 2018 and applied for international protection in the State on the following day. The applicant indicated that he feared returning to Algeria, both because of his race and politics and because of serious allergies he had for which he could not receive proper treatment in Algeria.

9 The applicant completed his Application for International Protection Questionnaire (AIPQ) in November 2018 and was interviewed by the IPO on 17 ^th October 2019. In a Section 39 Report dated 18 ^th February 2020, the IPO accepted that the applicant was Algerian, his ethnicity Berber and his tribe Berber Amazigh. It also accepted that his medical condition was as claimed by him but held that it could be treated in Algeria. It also found that his claim that “ he was a member of MAK from May 2005 until December 2008, and has since 2009, not been a member of MAK” was credible. However, it found “ on the balance of probabilities that claim that he had been threatened and attacked in Algeria” was not credible (p.119). It recommended that the applicant not be given a refugee status or subsidiary protection declaration, and in a Section 49 Report dated the 25 ^th February 2020, the IPO further recommended that he not be granted permission to remain.

10 The applicant lodged an appeal to the Tribunal, and his solicitors made written submissions to it on his behalf on 10 ^th December 2020. Case law and COI was referred to which supported the view that the authorities did not tolerate MAK whose activists were regularly harassed, arrested and detained and that the Berber community from the Kabylia region had “long suffered marginalisation;” it also referred to the 2017 Human Rights Watch Report which outlined that, during 2016, “ Algerian authorities routinely violate the right to freedom of assembly,” with organizing or participating in an unauthorized demonstration attracting up to one year in prison.

11 Submissions were made that the ill-treatment of activists in Algeria met the definition of persecution/serious harm. Issue was also taken with the manner in which the IPO had concluded that the applicant had never been threatened or attacked in Algeria.

12 The applicant's appeal hearing took place before the Tribunal on 15 ^th December 2020, and on that date his solicitors submitted, by email, a written submission containing extracts from further COI and enclosed the full COI reports referred to, which essentially updated and confirmed the position outlined in the...