MZ v International Protection Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 25 September 2023 |
| Neutral Citation | [2023] IEHC 637 |
| Court | High Court |
| Docket Number | Record No. 2022/34JR |
In the Matter of Section 5 of the Illegal Immigrant (Trafficking) Act 2000 (As Amended)
and
[2023] IEHC 637
Record No. 2022/34JR
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Ms. Justice Niamh Hyland delivered 25 September 2023
This is a challenge to a decision of the International Protection Appeal Tribunal (the “IPAT” or “Tribunal”) dated 17 November 2021. The applicant is a man from Georgia who made a claim for international protection to the Minister for Justice and Equality on 23 April 2019 on the basis that if he returned to Georgia, he would face persecution and/or serious harm. On 10 August 2021 an international protection officer recommended pursuant to s.39 of the International Protection Act 2015 (“the 2015 Act”) that the applicant not be declared to be a person eligible for asylum or subsidiary protection. The applicant appealed this decision, and the hearing took place on 20 October 2021. The IPAT concluded that the applicant should be given neither a refugee declaration nor a subsidiary protection declaration.
These proceedings challenge that decision by way of judicial review and seek an Order of certiorari quashing that decision.
The Statement of Grounds was filed on 16 January 2022 grounded on a Georgian language affidavit of the applicant of 18 January 2022, a translated version of which was also filed on the same date alongside an affidavit of the translator, Lasha Trapaidze. John Brick, solicitor for the applicant, similarly swore an affidavit in compliance with practice direction HC81 on 18 January 2022. On 4 May 2022, John Moore, a Higher Executive Officer in the Irish Naturalisation and Immigration Service swore an affidavit. On 20 May 2022 John Brick swore a second affidavit. An amended Statement of Grounds was filed on 8 July 2022 and the Statement of Opposition was filed on 23 September 2022. The applicant swore a second affidavit on 27 October 2022 and Mr. Trapaidze swore an affidavit on the same date exhibiting a translation into English. A second amended Statement of Grounds was filed on 17 January 2023. An amended Statement of Opposition was filed on 25 January 2023.
The following is a summary of the background provided by the applicant to the IPAT as recorded in the decision of 17 November 2021. The applicant was born in Georgia. He is married and has three children. The rest of his family continue to live in Georgia along with his parents and his sister. In 2003 a conflict arose between a Mr. DL and the godfather of the applicant's son, Mr. RC, related to their mutual drug use. On 25 May 2003 Mr. RC assaulted Mr. DL and then went to the applicant's house. Mr. DL followed Mr. RC to the applicant's house and assaulted the applicant.
The applicant was taken to hospital and received stitches before being discharged shortly after. On 28 May 2003 Mr. RC told the applicant that he was going to kill Mr. DL's family. The applicant attempted to dissuade him and followed him to Mr. DL's house in an attempt to stop him, the applicant's cousin, Mr. KB also went with him to that end. The applicant and Mr. KB were unable to stop Mr. RC who entered the house and killed the mother and brother of Mr. DL. Mr. DL avoided Mr. RC by hiding in another part of the house.
Following these murders, the applicant agreed to help Mr. RC to leave the country. Mr. DL began to look for Mr. RC as well as the applicant and Mr. KB. The applicant then decided to leave his village. On 31 May 2003 Mr. DL burned down the applicant's parent's house. On 7 or 8 February 2004 Mr. DL and four accomplices killed Mr. KB and threw his body in a river.
The applicant contends that Mr. DL's family members then gave false testimony and told the police that he and his cousin Mr. KB were in Mr. DL's house when the murders of his mother and brother occurred. The applicant subsequently heard about this testimony and handed himself in to the police for questioning. He felt he had no other choice as they would seek him out otherwise. Following this questioning the applicant was arrested by the police and subsequently convicted for being an accessory to the murders. He was initially sentenced to twenty years in prison but following mitigation this was reduced by two years. Following this the applicant's lawyers unsuccessfully attempted to have the sentence further reduced to four years in total, but the final sentence imposed by the Georgian Court was ten years.
Mr. RC was also arrested, pleaded guilty and was convicted of the murders. He was sentenced to life imprisonment. Mr. DL was arrested for the murder of the applicant's cousin and was sentenced to twenty three years in prison.
The applicant was released on 7 February 2012. Upon release he resumed working in a vineyard. Mr. DL continued serving his sentence but passed threatening messages to the applicant by way of other prisoners as they were released from prison. A Mr. FG passed several threatening messages from Mr. DL following his release from prison in July 2015. The applicant reported these threats to the police to no avail.
In March 2019 the head of the local government called the applicant and informed him the police wished to speak with him. Upon meeting the head of the police and another man, the applicant was informed that his life was in danger as Mr. DL was due to be released shortly. They told him that he should leave Georgia and should do so within fifteen days. They informed him that if he failed to do so, they would frame him with drugs charges and take him into custody. They told him they would not be able to deal with both him and Mr. DL being free simultaneously given Mr. DL's determination to harm him. They advised him that his only alternative was to hire private security twenty four hours a day.
On 20 April 2019 the applicant left Georgia and travelled by plane to Ireland via Latvia and Dusseldorf. He arrived in Ireland on 21 April 2019 and applied for protection on 23 April 2019. Mr. RC was released from prison in 2019 but died that September in suspicious circumstances. He died in a car accident that the applicant thinks was organised by Mr. DL, who was questioned for twelve days in prison in respect of the crash to no avail.
Mr. DL was released from prison in January 2020. Following his release he threatened the applicant's father, telling him he would kill the applicant. The applicant's father reported this to the police, and they questioned Mr. DL who denied that he had made the threat. Mr. DL knows that the applicant is in Ireland and has threatened him both by way of a third person and via a social media messaging service on 18 October 2021. On that occasion Mr. DL allegedly informed the applicant that he would do the same to him as had been done to his cousin.
In summary, the applicant is afraid that he will be harmed if he returns to Georgia. He fears harm at the hands of Mr. DL. He believes that the police will not protect him, and he will not be safe even if he moves to another part of Georgia.
The Tribunal carried out its assessment of the foregoing representations under s.28 of the 2015 Act in a number of discrete parts starting with the applicant's conviction and sentencing as an accessory to the murders of Mr. DL's relatives by his cousin Mr. KB. It found that the applicant had given a coherent and consistent account, and this was supported by the submission of a detailed translated judgment of the Supreme Court of Georgia. It concluded that this aspect of the account had been established on the balance of probabilities.
Similarly, the Tribunal accepted that the accounts given by the applicant, of the murder of his cousin by Mr. DL, the burning of his parent's house, and the threats made to him by Mr. DL, were established on the balance of probabilities. The Tribunal noted that the applicant went no further than claiming to have a suspicion that Mr. DL was responsible for the death of Mr. RC and accepted he had no hard evidence for same during the appeal hearing. In those circumstances the Tribunal concluded that there was a dearth of evidence upon which to conclude that Mr. DL was responsible for the death and as such it found that this aspect of the applicant's claim was not made out on the balance of probabilities.
In respect of the applicant's account of the Georgian police and the head of the local government informing him that they would not be able to protect him and that if he did not leave Georgia within approximately two weeks that he would in essence be framed for narcotics offences, the Tribunal put it to him at the appeal hearing that this was implausible. The Tribunal also expressed the view that this was especially so where the remainder of the applicant's account gave the impression of a criminal justice system that was investigating and prosecuting related crimes in an effective manner. The Tribunal records that the applicant simply denied that it was implausible and repeated his account of his interactions with the police in March 2019.
The Tribunal is at pains to stress that it does not make implausibility findings lightly and that it is conscious of the risks attendant on speculation and conjecture. Despite this, the Tribunal concludes that this aspect of the account is implausible on the basis that the foregoing is prima facie implausible but further that it runs contrary to the applicant's own account of his direct dealings with the Georgian police in relation to other facets of his claim, namely that they carried out a competent investigation and prosecution of Mr. DL and subsequently questioned him for twelve days in relation to the death of Mr. RC. In addition to this the Tribunal notes that the...
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