NL v International Protection Appeals Tribunal and Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms Justice Tara Burns
• Judgment Date: 25 June 2021
• Neutral Citation: [2021] IEHC 430
• Court: High Court
• Docket Number: Record No. 2019/889JR

Between

NL

Applicant

and

International Protection Appeals Tribunal and Minister for Justice

Respondents

[2021] IEHC 430

Record No. 2019/889JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – International protection – Future risk – Applicant seeking an order of certiorari of the first respondent’s decision – Whether the process of the first respondent’s decision making was flawed

Facts: The applicant was from the Shkoder region of Northern Albania. He entered the State on 8 August 2016 and immediately made an application for international protection. An International Protection Officer (IPO) recommended that the applicant be granted neither a refugee nor subsidiary protection declaration on 17 May 2018. The applicant appealed that recommendation to the first respondent, the International Protection Appeals Tribunal, which affirmed the recommendation of the IPO on 22 October 2019. Leave to apply by way of judicial review seeking an order of certiorari of the first respondent’s decision was granted by the High Court on 20 January 2020. The applicant claimed that the first respondent: (a) made a material error of fact and/or came to an unreasonable conclusion regarding the pressure and coercion on the applicant to take revenge for the murder of his brother, failed to consider relevant information, evidence and submissions with respect to this pressure, failed to consider a medical report when assessing the future risk of the applicant being subject to inhuman and degrading treatment owing to this pressure, and failed to fairly, properly and/or adequately consider country of origin information relevant to the risk of inhuman and degrading treatment owing to this pressure; (b) engaged in unwarranted and unfair adverse treatment of the applicant’s position that he would not bow to pressure and coercion to take revenge for the murder of his brother; (c) made a material error of law and/or misapplication of the Qualifications Directive; (d) failed to have regard to and/or apply s. 28(7) of the International Protection Act 2015; (e) unlawfully excluded relevant and accepted facts from its assessment, failed to conduct an assessment on current and future risk, and applied an incorrect standard of proof to its determination of past facts and the assessment of future risk; (f) misunderstood the purpose or particular elements of the evidence, documentation and information submitted, and/or adopted an unreasonable and irrational approach to same; (g) failed to appreciate the nature and scope of the claim for international protection, and failed to take relevant matters into account; (h) erroneously considered the evidence, documents and information and failed to put the applicant on notice of concerns regarding material submitted; (i) made unreasonable, irrational and/or illogical conclusions with respect to the evidence, documents and information before it in relation to the “K” family’s association with violence, firearms and their asserted police and political connections; (j) failed to properly consider country of origin information; (k) failed to notify the applicant of certain country of origin information relied on by the first respondent and breached s. 46(8)(b) of the 2015 Act in that regard; (l) erroneously assessed the hit and run accident and made an unlawful finding in dismissing it from its considerations; (m) engaged in excessive and prejudicial delay; (n) erroneously relied on the designation of Albania as a safe country of origin; and (o) failed to give adequate reasons for its decision.

Held by Burns J that the first respondent failed to properly understand the case that was being made by the applicant and the nature of the evidence before it with respect to the hit and run incident. She held that it also omitted to consider relevant matters when considering whether the applicant was in fear of the K family resulting in a negative credibility finding against the applicant which may have had an effect in terms of the application of the benefit of the doubt being afforded to the applicant. With respect to its analysis of future risk, she held that it failed to adopt facts accepted to be established on the balance of probabilities into its considerations in relation to whether a reasonable likelihood of persecution existed. Accordingly, she held that the process of the first respondent’s decision making was seriously flawed.

Burns J made an order of certiorari quashing the first respondent’s decision. She found that the statement of grounds was almost unwieldly and in relation to many of those grounds, the applicant was not successful. Accordingly the Court made an order for 75% of the applicant’s costs as against the respondent.

Application granted.

JUDGMENT of Ms Justice Tara Burns delivered on 25th June 2021

General

1 The Applicant, who is twenty-five years old, is from the Shkoder region of Northern Albania. He entered the State on 8 August 2016 and immediately made an application for international protection.

2 The Applicant's application was made to and processed by the Office of the Refugee Applications Commissioner. However, on the coming into force of the International Protection Act 2015 (hereinafter referred to as “the 2015 Act”), his application came to be assessed pursuant to the provisions of that Act. An application for International Protection Questionnaire was submitted by him on 10 March 2017. Arising from errors in the translation of the questionnaire, the Applicant submitted an updated supplementary questionnaire on 28 June 2017. The Applicant was interviewed pursuant to s. 35 of the 2015 Act on 24 October 2017 and a s. 39 report issued on 3 May 2018.

3 An International Protection Officer (hereinafter referred to as an “IPO”) recommended that the Applicant be granted neither a refugee nor subsidiary protection declaration on 17 May 2018.

4 The Applicant appealed this recommendation to the First Respondent, which, after a long and protracted consideration process, involving four hearing dates, affirmed the recommendation of the IPO on 22 October 2019.

5 Leave to apply by way Judicial Review seeking an order of Certiorari of the First Respondent's decision was granted by the High Court on 20 January 2020.

The Protection Claim

6 The Applicant asserted that his younger brother was murdered in 2010 by three men, EK and BK (who are brothers) and SM (who was a minor at the time), when the Applicant's brother was just 13 years old. His brother had been lured from his house by SM and killed for a gold necklace. The Applicant's father and the Applicant discovered his brother's body in a river, having confronted SM about his whereabouts.

7 The Applicant hails from the Northern region of Albania where an old tradition of Kanun blood feuds remains strong. This tradition requires that revenge be taken by the eldest son in a murdered person's family on the family of the perpetrator by taking a life from that other family: the tradition is described as “blood for blood.”

8 The Applicant comes from a very respectable family and has no intention of engaging in this tradition. However, this is not what society expects of him. He asserted that he was constantly questioned by friends, neighbours and extended family as to whether and when he would take revenge on the killers' families. Societal attitudes to a person who does not honor the tradition are poor and such a person is shunned and loses respect within their community which can extend to public displays of shaming.

9 The three men who murdered his brother were convicted and imprisoned in respect of the murder; the Applicant, his father and his mother gave evidence against them. The K brothers have publicly pledged their innocence in respect of the murder, including via media broadcasts. Their father called to the Applicant's father's house and threatened the Applicant's father about his sons asserted wrongful conviction indicating “you will see what will happen to you.” The Applicant's father received a phone call from an unknown number making a similar threat regarding the asserted wrongful conviction of the K brothers.

10 BK was sentenced to life imprisonment; EK was sentenced to 11 years imprisonment; and SM was sentenced to 10 years imprisonment. However, on appeal BK's sentence was reduced to 25 years imprisonment; and SM's sentence was reduced to 4 years imprisonment. SM was released shortly after his appeal, although he is now in prison again, having been found guilty of murdering two tourists. EK's sentence ended in mid-2017 (after the Applicant had left Albania) and he was released from prison.

11 The Applicant asserts that he fears for his life. He fears that the K brothers, who are dangerous people, anticipating that the Applicant will seek revenge for his brother's murder in light of the blood feud tradition, will strike first and kill him. Alternatively, they might seek to take revenge for the Applicant giving evidence against them in respect of a murder for which they protest their innocence.

12 The Applicant's family are also concerned for his safety. For these reasons, after the Applicant finished school, he was moved by his family in October 2013 to Sweden, where he claimed asylum. However, as his application was not successful, he was returned to Albania in August 2014. The Applicant has also stayed with his Uncle for periods since his brother's murder. He asserted that he has led a sheltered and careful existence to avoid detection by the murderers' families.

13 The Applicant was the victim of a hit and run accident in November 2015, as a result of which he sustained some injuries and was hospitalised. The Applicant believes that the K family caused this incident, but he was not in a position to identify anybody as he was hit from behind and did not see any faces.

14 After this incident, the Applicant decided to leave Albania to travel to Ireland...