N.G. v The International Protection Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Siobhán Phelan |
| Judgment Date | 29 September 2023 |
| Neutral Citation | [2023] IEHC 535 |
| Court | High Court |
| Docket Number | [Record No. 2022 / 915 JR] |
In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (As Amended)
and
In the Matter of the International Protection Act 2015
[2023] IEHC 535
[Record No. 2022 / 915 JR]
THE HIGH COURT
JUDICIAL REVIEW
JUDGMENT of Ms. Justice Siobhán Phelan delivered on the 29 th day of September 2023.
. In these proceedings the Applicant challenges a decision to refuse his application for subsidiary protection on the basis that the Internationl Protection Appeals Tribunal [hereinafter “the Tribunal”] erred in law in determining that it had been shown that the Applicant faces a real risk of serious harm in his country of origin but that the claim be refused because State protection was available. In so deciding it is contended that the Tribunal failed to properly apply ss. 2, 28(6), 31 and 33 of the International Protection Act, 2015 (hereinafter “the 2015 Act”]. To preserve the anonymity of parties named in the application and the decision under review, exact dates are not recited in this judgment and initials are used instead of the actual names provided by the Applicant.
. The Applicant is a national of Albania. The Applicant's claim for international protection relates to threats that the Applicant states were made to him arising from his work in a business in Albania. It is claimed that in the Summer of 2017 there was a disagreement between the owners of the business about money. One of the owners, Y, alleged money was missing from the business and accused his business partner, X. In addition to this Y was angry about a relationship between his business partner and his sister. The Applicant was present for an argument between X and Y and was driven home afterwards by X. Due to his perceived association with X, the Applicant began to receive threatening phone calls from Y and two named employees aligned with Y alleging that the Applicant had taken the missing money from the business. The Applicant received death threats and demands that he return the money. In addition, the men approached the Applicant's father and told him that the Applicant must return the money to the business.
. The Applicant denied having the money and claims that he may have been framed by Y to distract from having taken the money himself. The Applicant did not return to work due to fear for his own safety but continued to receive threatening telephone calls on a daily basis. He was not approached by any of the men. X was murdered in December, 2017 and Y was arrested by Albanian authorities for the murder, tried in court, convicted and sent to prison. The Applicant saw reports of the conviction on television. He continued to receive threatening calls from Y's named associates after the conviction and until he left Albania in June, 2018.
. The Applicant says that he did not consider reporting the threats to the police because he felt it would be pointless as he did not trust the police and was afraid to make a report. The Applicant felt that the Albanian police would not protect them as the Albanian police are corrupt and that there was nowhere in Albania where he could safely relocate to avoid persecution or serious harm at the hands of Y and his associates. The Applicant's mother was frightened by the threats and advised him to leave Albania, borrowing money in order to facilitate travel for the Applicant.
. The Applicant claims to have left Albania in June, 2018 travelling to Greece where he stayed for approximately one year. The Applicant's says that he then travelled to Italy for a month before travelling to Belgium where he stayed for one year. The Applicant did not seek international protection in Greece, Italy or Belgium before arriving in the State in June, 2020 where he applied for international protection.
. Following an initial interview pursuant to s. 13(2) of the 2015 Act, the Applicant submitted a completed International Protection questionnaire in support of his application and was further interviewed in September, 2021. In February, 2022 the Applicant was notified by the International Protection Office [hereinafter “the IPO”] that it was recommending that the Second Named Respondent should neither declare him to be a refugee nor to be eligible for subsidiary protection, finding that the Applicant had not established a well-founded fear of persecution and that Albania was a safe country of origin. The notification enclosed a report pursuant to s. 39 of the 2015 Act, along with other material comprising his application.
. The Applicant appealed the IPO's finding to the Tribunal. An oral hearing took place in July, 2022 at which the Applicant was legally represented. By way of decision dated the 3 rdof October, 2022, the Tribunal affirmed the recommendation that the Applicant should neither be given a refugee declaration nor be eligible for subsidiary protection. This decision was communicated to the Applicant under cover of letter dated the 4 th of October, 2022 and is the decision challenged in the within proceedings.
. Leave to proceed by way of judicial review was granted by Order of Meenan J. on the 21 st of November, 2022. In these proceedings the Applicant seeks, inter alia, an Order of Certiorari quashing the decision of the First Named Respondent dated the 3 rd of October, 2022 (the “Impugned Decision”) made under s. 46 of the 2015 Act. It is contended that the decision is legally flawed by reason of error of law on several grounds in circumstances where the First Named Respondent accepted the material facts of the Applicant's claim and specifically found (at paragraph 7.4 of the decision) that “substantial grounds have been shown that the appellant faces a real risk of serious harm in his country of origin” but refused international protection on the basis that
State protection was available.
. It is contended in the first instance that the concepts of “ well-founded fear of persecution” and “ real risk of serious harm” are autonomous EU law concepts which are not established if State protection is available. It is maintained on behalf of the Applicant that it is therefore not open to the First Named Respondent to find both that the Applicant has a real risk of serious harm in his country of origin but that the claim for protection fails because State protection exists. It is further contended that the Tribunal failed to correctly apply s. 28(6) of the 2015 Act (reflecting the 4(4) of the Qualification Directive) which in its terms creates a rebuttable presumption that a finding of past serious harm is a serious indication of a real risk of future serious harm. In addition, it is maintained that the Tribunal erred in taking into account the fact that Albania had been deemed a safe country of origin by the Irish Authorities by virtue of the International Protection Act 2015 (Safe Countries of Origin) Order 2018 ( S.I. No. 121/2018) without having carried out an analysis pursuant to s. 33 of the 2015 Act.
. The Respondents oppose the proceedings on the basis that the Tribunal lawfully arrived at a decision that the Applicant was not entitled to subsidiary protection. They maintain that this decision was arrived at on the basis of a proper application of s. 28(6) of the 2015 Act, the Tribunal considered the possibility of future risk with proper regard to the fact that Albania had been deemed a safe country of origin by the Irish authorities and having engaged in an assessment “ in the round” of the materials and information available in reaching a lawful conclusion that State protection was available to the Applicant.
. I propose to address each of the substantive grounds of complaint advanced sequentially.
. Section 2 of the 2015 Act defines a person eligible for a subsidiary protection as:
“person eligible for subsidiary protection” means a person—
(a) who is not a national of a Member State of the European Union,
(b) who does not qualify as a refugee,
(c) in respect of whom substantial grounds have been shown for believing that he or she, if returned to his or her country of origin, would face a real risk of suffering serious harm and who is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country, and”
. Section 2 of the Act mirrors the language used in Article 2(e) of Directive 2004/83/EC [the ‘Qualifications Directive’] which provides for the definition of a person eligible for subsidiary protection as:
“‘person eligible for subsidiary protection’ means a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15, and to whom Article 17(1) and (2) do not apply, and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country;”
. It is the Applicant's position that the Tribunal erred in law as to the significance placed on the finding that the Applicant had established a well-founded fear of persecution/serious harm. It is contended that such a finding placed a requirement on the Tribunal to then conclude that the Applicant was entitled to subsidiary protection as a fear of serious harm is not well-founded where State protection exists. Reliance is placed on the wording of s. 2 of the 2015 Act and specifically the words ‘ owing to such risk’ which it is contended should be interpreted as...
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