S v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 24 July 2019
• Neutral Citation: [2019] IEHC 564
• Docket Number: 2018 No. 1060 JR
• Court: High Court
• Date: 24 July 2019

[2019] IEHC 564

THE HIGH COURT

Barrett J.

2018 No. 1060 JR

Between:

S

Applicant

– and –

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE AND EQUALITY

Respondents

Judicial review – Refugee – Subsidiary protection – Applicant seeking an order of certiorari – Whether the respondent erred in law by assessing the applicant’s eligibility for subsidiary protection by reference only to whether the applicant was at risk of serious harm from state actors and failing to assess whether he would face such a risk from non-state actors

Facts: The applicant, a national of Albania, challenged the decision of the first respondent, the International Protection Appeals Tribunal (IPAT), of 16.11.2018 affirming a recommendation that he be given neither a refugee declaration nor a subsidiary protection declaration. Two legal issues arose for the consideration of the High Court in relation to the impugned decision: (1) In deciding that there was “no objective basis for finding that the applicant would be in continuing danger in Albania if he were to move to and live in a different part of the country”, did the IPAT err in law or act ultra vires by relying on an internal protection finding but failing to apply the internal protection test and procedure required by s. 32 of the International Protection Act 2015? (2) Did the Tribunal err in law by assessing the applicant’s eligibility for subsidiary protection by reference only to whether the applicant was at risk of serious harm from state actors and failing to assess whether he would face such a risk from non-state actors?

Held by Barrett J that while the issue of internal relocation does not arise if there is no well-founded fear of persecution, the IPAT relied on an internal relocation finding to conclude that there was no well-founded fear of persecution. As to the suggestion by the respondents, the IPAT and the Minister for Justice and Equality, that internal relocation has no logical part to play if there is no Convention nexus, Barrett J held that this was not true for the subsidiary protection dimension of the applicant’s claim. As to the contention by the respondents at hearing that the applicant did not come within the definition of a person eligible for subsidiary protection because he could not show the necessary “serious harm” (2015 Act, s. 2), given that the truth of every substantive aspect of the applicant’s claim, including the notably savage beating that he suffered in Albania, appeared to be accepted by the IPAT, the court struggled with how this contention could convincingly be made, especially when having regard to limb (b) of the definition of “serious harm” in s. 2. As to the finding that “the Appellant would be in continuing danger if he were to move to and live in a different part of the country”, Barrett J held that the IPAT erred in law and acted ultra vires by relying on an internal protection finding without applying the requisite test/procedure as considered in AA (Pakistan) v IPAT [2018] IEHC 497. Regarding the applicant’s criticism of the impugned decision for its want of express consideration as to any risk presenting vis-à-vis non-state actors in the context of the violent land dispute which the applicant claimed led in part to his flight from Albania, Barrett J held that it was clear from, e.g., para. 8.2.3 of the impugned...