N.U. v The International Protection Appeals Tribunal and The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 17 February 2022
• Neutral Citation: [2022] IEHC 87
• Court: High Court
• Docket Number: RECORD NO.: 2020/553 JR

Between

N.U.

Applicant

and

The International Protection Appeals Tribunal and The Minister for Justice and Equality

Respondents

[2022] IEHC 87

RECORD NO.: 2020/553 JR

THE HIGH COURT

JUDICIAL REVIEW

State protection – International Protection Act 2015 s. 31 – Judicial review – Applicant seeking an order of certiorari quashing the decision of the first respondent to uphold the negative decision of the International Protection Office in respect of the applicant’s application for refugee status and subsidiary protection status – Whether the first respondent failed to apply the correct legal test in its assessment of whether state protection was available to the applicant

Facts: The applicant, a Georgian national, claimed protection. Her claim related to her experience of rape, intimate partner violence and threat of violence, and the future risks to her and her twin children in Georgia associated with those experiences. The applicant applied to the High Court seeking an order of certiorari quashing the decision of the first respondent, the International Protection Appeals Tribunal, notified by letter dated the 10th July 2020 to uphold the negative decision of the International Protection Office in respect of the applicant’s application for refugee status and subsidiary protection status. The applicant contended that the Tribunal failed to apply the correct legal test in its assessment of whether state protection, within the meaning of s. 31 of the International Protection Act 2015, was available to her. The applicant further complained that the Tribunal did not provide adequate reasons as to why in the context of the state protection assessment, the applicant’s claims regarding the absence of state protection were rejected in favour of the general observation that Georgia had been designated as a safe country of origin. The conclusion as to the availability of state protection was challenged as unreasonable.

Held by Phelan J that she could not be satisfied from the terms of the decision that the Tribunal reached a lawful conclusion on the availability of “state protection” as it was not clear that the Tribunal identified and applied the correct legal test to either the safe country of origin or the “state protection” concepts. The fact that Phelan J was not so satisfied derived in part from the failure to advert clearly to the relevant statutory provisions or component parts of the test in the decision but also in part from the reasoning in the decision which was not expressed in a manner which demonstrated that the Tribunal properly addressed its mind to the correct test in deciding that state protection within the meaning of the Act was available. Phelan J held that there is a requirement for the Tribunal to record a decision under s. 33 as to whether serious grounds have been submitted for disapplying the designation in a given case and, if so, to demonstrate real engagement with the component parts of the s. 31 test on the material before the Tribunal in a reasoned manner and in a way which allows the court to understand how and why the decision was taken.

Phelan J made an order of certiorari in terms of para. 1 of the notice of motion and directed that the application for protection be remitted for determination by a differently constituted Tribunal to that which had previously dealt with the applicant’s case. Phelan J also proposed making an order for the applicant’s costs as against the respondents to be adjudicated upon in default of agreement in circumstances where the applicant had been successful in the proceedings.

Order of certiorari granted.

JUDGMENT OF Ms. Justice Siobhán Phelan, DELIVERED ON 17TH DAY OF FEBRUARY, 2022

INTRODUCTION

1 The applicant is a Georgian national who claims protection. Her claim relates to her experience of rape; intimate partner violence and threat of violence; and the future risks to her and her twin children in Georgia associated with those experiences.

2 In these proceedings the applicant seeks an order of certiorari quashing the Decision of the first named respondent (hereinafter “the Tribunal”) notified by letter dated the 10th July 2020 to uphold the negative Decision of the International Protection Office in respect of the applicant's application for refugee status and subsidiary protection status.

3 In its impugned Decision, the Tribunal accepted that there are grounds for a successful claim in that the applicant has a well-founded fear of persecution and there is a convention nexus. The case therefore principally turns on the Tribunal's treatment of state protection.

4 The applicant contends that the Tribunal failed to apply the correct legal test in its assessment of whether state protection (within the meaning of s. 31 of the International Protection Act 2015 (hereinafter “the 2015 Act”) was available to her. It is further complained that the Tribunal did not provide adequate reasons as to why in the context of the state protection assessment, the applicant's claims regarding the absence of state protection were rejected in favour of the general observation that Georgia has been designated as a safe country of origin. The conclusion as to the availability of state protection is challenged as unreasonable.

THE CLAIM FOR PROTECTION

5 The applicant claimed to have been victimized in a number of ways in Georgia.

6 The applicant claimed that she had worked unofficially as coordinator for the National Movement Party (hereafter the “NM”) in Georgia and that in 2003, the NM went into government until 2012. The applicant claimed that she felt like she was working for “dark people”. She claimed that when she refused to continue to work for them in 2007 she was kidnapped by some supporters of the NM, was abused and attacked where she suffered spinal injuries. She described how six men took her in a vehicle to a forest and asked her why she had stopped working for the NM. They put a gun to her head. She pretended that she would return to the NM but instead left for the UK.

7 The applicant lived in the UK from 2006 to 2016. She did not make an application for international protection in the UK as she said that she always hoped to return to Georgia when the political situation changed. She met her former partner in 2014 while working and living in London. He is also a Georgian national. He told her that he was a police officer and worked with the government in Georgia. He indicated that he was divorced and had children from his previous marriage.

8 In 2016 the applicant and her former partner got engaged to marry and returned to Georgia to live. When they returned to Georgia, the applicant reported that she had no problems from the NM however her relationship with her former partner deteriorated when she told him that she was pregnant. He wanted her to have an abortion and did not want a family with his mistress. He made numerous threats and physical attacks on her. She also suffered a rape attack from a drunk friend of his when she was about three months pregnant. She was attacked by knife by her former partner on several occasions. She was assaulted and thrown down the stairs resulting in vaginal bleeding. He followed her to her sister's home where he was stopped from suffocating her when her sister intervened. On another occasion he drove his car towards her. She ran behind a pole to shield herself. She described how he got out of the car and banged her head off the pole, rendering her unconscious. She spent 10 days in hospital. She said that he threatened to kill her and her unborn children.

9 She said that although she reported the abuse to the police, she believed the only action taken was a verbal warning.

10 After she was discharged from hospital, she went to a remote area of Georgia and remained in hiding in her friend's home for a month until arrangements were made for her to leave Georgia and come to Ireland. Her two children (twins) were born in Ireland and are included in her protection claim.

11 The applicant advanced her claim to be at risk of persecution and without state protection on the following grounds:

• a. one of the ‘actors of persecution or serious harm’ was a member of police;

• b. when she previously made a complaint, there was an ineffective response by the police;

• c. country of origin confirmed the risks and absence of protection in Georgia in the context of her particular case and/or;

• d. she was at particular risk of persecution / serious harm by reason of her having two children with her former partner, and the risks posed thereby of having to interact with him in Georgia – including through the civil court system – in particular in circumstances in which he had threatened their lives in the past.

THE TRIBUNAL DECISION

12 The Decision summarises the applicant's claim recording her claims that:

• I. in 2007, for political reasons, she was subject to kidnap, an attack (in which she suffered spinal injuries) and threatened with death causing her to leave Georgia at that time;

• II. she met her former partner while living illegally in the UK and then commenced a relationship during his work visits to the UK before they became engaged and she returned to Georgia to live with him;

• III. her former partner held a position of influence through his work with the police;

• IV. her relationship with her former partner became violent during 2016 when he learned that she was pregnant as he already had a wife and children;

• V. she was raped by a friend of her former partner while she was pregnant in approximately October 2016;

• VI. her former partner held a knife to her throat, cut her hand, beat and punched her, and threw her down the stairs (which resulted in vaginal bleeding) in approximately October 2016;

• VII. she was also attacked with a knife by her former partner in 2016 and suffered scarring to her leg;

• VIII. in November 2016, her former partner drove his car...