P.F.A v International Protection Appeals Tribunal and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 01 May 2025
• Neutral Citation: [2025] IEHC 260
• Docket Number: Record No. 2025 / 440 /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

Between

P. F. A.

Applicant

and

The International Protection Appeals Tribunal and The Minister for Justice

Respondents

[2025] IEHC 260

Record No. 2025 / 440 /JR

THE HIGH COURT

JUDICIAL REVIEW

Subsidiary protection – Credibility – Permission to remain – Applicant seeking leave to seek orders of certiorari – Whether the applicant met the substantial grounds test for leave

Facts: The applicant applied to the High Court for leave, on a substantial grounds basis, to seek orders of certiorari in respect of: (i) the decision of the first respondent, the International Protection Appeals Tribunal (the IPAT), affirming the first instance decision that the applicant be refused refugee status and subsidiary protection status; and (ii) the decision of the second respondent, the Minister for Justice (the Minister), refusing permission to remain pursuant to s. 49 of the International Protection Act 2015 and proposing to make a deportation order. A range of issues arose on the pleadings but the most focus in submissions urged on Phelan J was on the question of whether the IPAT, in its assessment of credibility, rejected the applicant’s claim of having worked with a senior politician based on photographs which were unclear and lacking the cogency required for disposition of the claim. It was also contended that the IPAT acted in breach of fair procedures when basing its decision on the aforesaid photographs, having acknowledged its own misidentification of the politician in the photographs but then proceeding to hold that on the basis of the same photographs, the applicant was not familiar with the appearance of the politician.

Held by Phelan J that the substantial grounds test for leave which applies by virtue of s. 5 of the Illegal Immigrants (Trafficking) Act 2000 was set out in McNamara v An Bord Pleanála [1995] 2 ILRM 125 and approved in In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 at 395, where the word “substantial” was interpreted as being equivalent to “reasonable”, “arguable”, and “weighty” and the Court held that such grounds must not be “trivial or tenuous”. Phelan J held that to meet the test the applicant needed to identify facts upon which a reasonable or weighty claim may be made that the decision sought to be impugned was unlawful on stateable legal grounds. Phelan J held that the applicant was not entitled to leave to challenge the decision on the IPAT based on the rejection of the credibility of her claim having regard to the test under s. 5 of the 2000 Act. Phelan J concluded that in common with other cases in which she had granted leave, a reasonable case may be made that the refusal of leave to remain was flawed as to the process adopted in view of the decisions in A. (Albania) v Minister for Justice and Equality [2023] IEHC 692 and H.K. (Western Sahara) v Minister for Justice and Equality [2022] IECA 141 such that the threshold for leave was met on the face of the Minister’s decision which it was sought to impugn for lack of proper consideration of the submissions made by and on behalf of the applicant.

Phelan J granted leave to seek the relief at d(7) of the amended statement of grounds as placed before the court on 28 April 2025, on the legal grounds set out in the second sentence of e(6). Phelan J held that this was the only legal ground of challenge upon which the applicant met the threshold for leave under s. 5 of the 2000 Act. Apart from leave to seek consequential relief such as costs as may be appropriate, Phelan J otherwise refused leave on the application.

Application granted in part.

RULING of Ms. Justice Siobhán Phelan, delivered on the 1 ^st day of May, 2025

INTRODUCTION

1 . This is an application for leave, on a substantial grounds basis, to seek orders of certiorari in respect of:

• (i) the decision of the International Protection Appeals Tribunal (hereinafter “the IPAT”) affirming the first instance decision that the Applicant be refused refugee status and subsidiary protection status; and

• (ii) the decision of the Minister refusing permission to remain pursuant to s. 49 of the International Protection Act, 2015 (hereinafter “the 2015 Act”) and proposing to make a deportation order.

STATEMENT OF RELEVANT FACTS

2 . The Applicant claims to have been born on the 17 ^th of July, 2000, in South Africa. When her father moved to Durban to work as a driver for a named politician (hereinafter “Mr. Y”), the Applicant continued to reside with her mother in her family home in Johannesburg. The Applicant claims that Mr. Y was a prominent politician with a well-known political party. When the Applicant was 19, her father got her a job as a cook for Mr. Y and she moved to Durban. She resided with her father and sometimes at her workplace.

3 . According to the Applicant, Mr. Y died on the 3 ^rd of July, 2023. The Applicant believes he was murdered by political rivals. She immediately returned to her father's residence.

4 . Following Mr. Y's death, the Applicant claims that her father received threats related to a document or documents he had been given by Mr. Y. The Applicant maintains that her father had previously informed her of the existence of such documentation but she had no knowledge of the contents of it.

5 . The Applicant claims that her father was killed on the 12 ^th of July, 2023.

6 . The Applicant returned to her mother in Johannesburg on the 13 ^th of July, 2023. Her mother and siblings had already fled. From her mother's home, it is claimed that the Applicant was kidnapped by 3 men. She believed that 2 of them were intent on killing her, but the third assisted her to escape and flee South Africa.

7 . The Applicant claims that she fled South Africa on the 15 ^th of July, 2023 and travelled to London and on to Belfast and Dublin. She applied for international protection on the 17 ^th of July, 2023.

8 . The Applicant completed her questionnaire on the 17 ^th of July, 2023. She outlined how her life was in danger stating:

“My boss Mr. Y had some important political documents and gave them to my father because my boss life was in danger. Not knowing that other politicians found out and killed Mr. Y in the process. My father has been on a run but they also killed him.”

9 . On her questionnaire, she also said that she had been kidnapped on the 1 ^st of July, 2023, but was able to escape with the help of one of the kidnappers.

10 . The Applicant attended for interview on the 8 ^th of August, 2023, less than a month after her arrival in the State.

11 . By letter dated the 11 ^th of September, 2023, she was informed by the International Protection Office (hereinafter “the IPO”) that her international protection application was refused.

12 . By letter dated the 24 ^th of September, 2023, the IPO decision was appealed to the IPAT. Her oral hearing before the IPAT was held on the 28 ^th of February, 2025.

13 . By letter dated the 10 ^th of March, 2025, and received by the Applicant on or about 13 ^th of March, 2025, the Applicant was informed that her appeal was unsuccessful. Attached was a copy of the IPAT decision, dated 4 ^th of March, 2025.

14 . Following receipt of the IPAT decision, by letter dated 18 ^th of March, 2025, a permission to remain review was submitted to the Minister with supporting documentation.

15 . By letter dated the 2 ^nd of April, 2025, the Applicant was informed that the review application was negative and that the Minister was refusing a grant of refugee status or subsidiary protection to the Applicant pursuant to s. 47(5) of the 2015 Act, refusing permission to remain pursuant to s. 49(4) of the 2015 Act, invalidating the Applicant's Temporary Residence Card and proposing to make a deportation order in respect of the Applicant.

SUBSTANTIAL GROUNDS THRESHOLD

16 . As noted above, in these proceedings, the Applicant seeks orders quashing the decision of the IPAT made under ss. 46 and 49 of the 2015 Act. These decisions are subject to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 (hereinafter “the 2000 Act”) and the higher threshold of “ substantial grounds” applies to the decision to grant or refuse leave to proceed by way of judicial review.

17 . The substantial grounds test for leave which applies by virtue of s. 5 of the 2000 Act, was set out in McNamara v. An Bord Pleanála [1995] 2 ILRM 125 and approved in In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 at 395, where the word “ substantial” was interpreted as being equivalent to “ reasonable”, “ arguable”, and “ weighty” and the Court held that such grounds must not be “ trivial or tenuous”.

18 . To meet the test the Applicant must identify facts upon which a reasonable or weighty claim may be made that the decision sought to be impugned is unlawful on stateable legal grounds. These are the two related questions to which I now turn.

DISCUSSION AND DECISION

19 . A range of issues arise on the pleadings but the most focus in submissions urged on me was on the question of whether the IPAT, in its assessment of credibility, rejected the Applicant's claim of having worked with a senior politician based on photographs which were unclear and lacking the cogency required for disposition of the claim. It was also contended that the IPAT acted in breach of fair procedures when basing its decision on the aforesaid photographs, having acknowledged its own misidentification of the politician in the photographs but then proceeding to hold that on the basis of the same photographs, the Applicant was not familiar with the appearance of the politician.

20 . Significantly, the IPAT decision describes precisely what transpired in this regard at para. 27 of its decision (and this is not contested on affidavit on behalf of the Applicant) where it stated:

“At...