S. v International Protection Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Bolger |
| Judgment Date | 25 July 2022 |
| Neutral Citation | [2022] IEHC 458 |
| Court | High Court |
| Docket Number | [2021/64/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
and
[2022] IEHC 458
[2021/64/JR]
THE HIGH COURT
International protection – Credibility – International Protection Act 2015 s. 28 – Applicant seeking an order of certiorari quashing the decision of the first respondent which affirmed the recommendation that the applicant was not entitled to either a declaration as to refugee status or eligible for subsidiary protection – Whether the decision of the first respondent was reached in accordance with the requirements of s. 28 of the International Protection Act 2015
Facts: The applicant applied to the High Court seeking an order of certiorari quashing the decision of the first respondent, the International Protection Appeals Tribunal, dated 3 December 2020, which affirmed the recommendation of the International Protection Office that he was not entitled to either a declaration as to refugee status or eligible for subsidiary protection. The applicant identified the central issue as whether the Tribunal properly did what was required of it by s. 28 of the International Protection Act 2015 whereas the respondent focused on what it said was the Tribunal’s entitlement to make its findings on the basis of the applicant’s lack of credibility.
Held by Bolger J that no assessment of the applicant’s claim about his political activity or of his claim about a loan took place; therefore the Tribunal failed to conduct the appeal in accordance with s. 28. Bolger J held that a mere stated consideration by the Tribunal of the facts and circumstances of the applicant’s claim and its regard to his personal circumstances did not constitute an assessment of the elements of the claim that s. 28(2) required, or reflect adherence to the duty imposed on Ireland by Article 4(1) of the qualification directive 2004/83/EC. Bolger J found that the Tribunal used its finding at para. 4.3 of its decision, that the applicant did not offer a reasonable explanation for the inconsistency in his claim at different points of the protection process which undermined his credibility, to ground a conclusion at para. 4.4 rejecting the material facts of his new claim as not having been established. Bolger J held that this was not in accordance with the Tribunal’s obligation to assess the applicant’s claim in the manner as set out in s. 28.
Bolger J held that the decision of the Tribunal was not reached in accordance with the requirements of s. 28 and should be quashed by way of an order for certiorari. Bolger J held that she would remit the matter for a fresh determination in accordance with the law. As the applicant had succeeded in his application, Bolger J’s indicative view was that costs should, in accordance with s. 169 of the Legal Services Regulation Act, follow the cause and the applicant was entitled to his costs against the respondents.
Application granted.
DECISION of Ms. Justice Bolger delivered on the 25th day of July 2022
In these proceedings the applicant seeks an order of certiorari quashing the decision of the first named respondent (hereafter “the Tribunal”) dated 3 December 2020, which affirmed the recommendation of the International Protection Office (the “IPO”) that he is not entitled to either a declaration as to refugee status or eligible for subsidiary protection. For the reasons set out below I am granting an order of certiorari quashing that decision.
The applicant is a national of Georgia, born on 2 December 1991. He submitted an International Protection Questionnaire in which he claimed that if he returned to Georgia he would be killed because he is gay. In his section 35 interview he said that he feared for his life in Georgia due to his sexual orientation, that he was bisexual, had previously had a relationship with a named man he met in bar in Georgia in 2018 and that he was spotted at a gay rally in Georgia in 2017 by unknown persons who informed his friend, who advised him that he should leave the country as his life was in danger. He also said he was in fear for his safety due to a loan he had taken out in Georgia. The applicant made no reference in his questionnaire or his interview to any negative incidents or fears connected to political opinions.
The IPO held that it was not credible on the balance of probabilities that the applicant was a gay or bisexual man, or that he had any loan issue in Georgia, and recommended that he should not be given a refugee or subsidiary protection declaration.
The applicant appealed on the grounds that the IPO's adverse credibility findings were unfair and/or unreasonable and failed to give him the benefit of the doubt. He lodged written submissions through his solicitors in which he repeated his claim that he was in fear of persecution due to his sexuality.
The applicant's appeal came on for hearing on 6 October 2020. Shortly before the hearing commenced and without notice to his legal representatives, the applicant confessed that his claim was false, that he was not gay and had never been in a relationship with a man. He explained that he fabricated a claim on the advice of another Georgian man who suggested he would have difficulty in securing a protection status if he did not apply in that way and would become liable for deportation. The applicant then proceeded to put forward a new claim at the hearing of his appeal. He said that he was a supporter of the UNM party, that he filmed video footage of a politician in 2014 and was targeted by men from his local area who were unhappy that he had done this. He claimed that he was beaten by men in his local area in 2014 and bullied and harassed by them frequently until he left Georgia in 2019 (I will refer to that claim as the ‘new claim’). The applicant also repeated the claim he had made previously (and which had not been accepted by the IPO) that he was believed he would be targeted by the lenders of money he could not repay. When asked why he decided to give a different account on appeal, the applicant said he had decided that everything he previously said was “silly” and that he had decided it was time to tell the truth.
The Tribunal's decision dated 3 December 2020 affirmed the recommendation of the IPO that the applicant should not be given refugee or subsidiary protection declaration. At part 2 the Tribunal set out the applicant's allegations and the documents he had submitted and confirmed that the notices of appeal, submissions and all of the documentation provided had been ‘fully considered’. At part 4 the Tribunal set out its assessment of the facts and circumstances. At para. 4.1 it stated that it had, pursuant to s.28 of the Act, ‘considered the facts and circumstances’ of the claim and in making its findings, ‘had regard to the appellant's personal circumstances.’ At para. 4.2 the material facts of the claim were assessed to be that:
Para. 4.3 set out questions asked of the applicant during the appeal, all of which centred on the false claim originally made by him and why he had done that. None of the questions related to the new claim or to his repeated claim about a loan. The applicant's responses to the questions are recorded at para. 4.3, namely that he had been advised by a Georgian man he met shortly after he arrived in Ireland to tell the Irish authorities that he was gay, that he thought he would have difficulties if he told the truth to the Irish authorities, that at the appeal hearing he decided everything he had said was silly and that it was time to tell the truth, and that he realised it was not right to lie and that he was now telling the truth. The Tribunal found that “the appellant has not provided anything remotely approaching a reasonable explanation for the huge inconsistency in the nature of his claim at different points in the protection process and find this inconsistency to be significantly undermining of his credibility”.
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i. The appellant is a supporter of the UNM party.
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ii. The appellant filmed video footage of a politician, Dato Kefishvili, in 2014 and was targeted by men from his local area who were unhappy about the fact that he had filmed the footage.
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iii. The appellant was beaten by men in his local area in 2014 and bullied and harassed by them frequently until he left Georgia in 2019.
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iv. The appellant borrowed money before he left Georgia and had difficulties repaying his loan.
The Tribunal went on at para. 4.4 to conclude that “the massive inconsistency in the nature of the claim presented by the appellant utterly deprives his claim of credibility to the extent that the Tribunal rejects the material facts of the appellant's claim as not having been established on the balance of probabilities”.
There is no reference in the Tribunal's decision to an assessment of the new claim or of the claim he repeated about a loan. The Tribunal does say at para. 2.9 that the ‘submissions’ were fully considered and I take the reference to ‘submissions’ to include the oral submissions made by or on behalf of the applicant at the appeal hearing.
The applicant and respondent set out the following legal questions:
In summary, the applicant identifies the central issue as whether the Tribunal properly did what was required of it by s. 28 whereas the respondent focuses on what it says was the Tribunal's entitlement to make its findings on the basis of the applicant's lack of credibility.
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i. Whether the Tribunal erred in law by not carrying out an assessment of the applicant's claim in accordance with its function and duty under s. 28 of the International Protection Act, 2015, and/or Article 4 (1) of Directive...
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