A.E. v The Chief International Protection Officer and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Siobhán Phelan |
| Judgment Date | 06 December 2023 |
| Neutral Citation | [2023] IEHC 695 |
| Court | High Court |
| Docket Number | [Record No. 2023 / 1123 JR] |
and
and
[2023] IEHC 695
[Record No. 2023 / 1123 JR]
THE HIGH COURT
JUDICIAL REVIEW
International protection – Judicial review – Extension of time – Applicant seeking judicial review – Whether an injustice had been done that was incapable of being remedied on appeal
Facts: The applicant sought an order of certiorari quashing the decision of the International Protection Office (IPO) dated the 31st of August, 2022 and notified the 6th of September, 2022 refusing international protection to the applicant, together with an extension of time. The legal grounds advanced for challenge were stated as follows: (i) the impugned decision was made without regard being had to material evidence which had been submitted by the applicant in support of his claim to the IPO; and (ii) the IPO breached the applicant’s right to natural justice in arriving at their decision by failing to take into account material evidence and further failing to assess the applicant’s claim for international protection as set out by the applicant. The IPO contested the proceedings on the basis that the documentation at issue was not "material to the impugned decision reached"; this was because it was accepted in the IPO decision that the applicant had worked as a border guard for nine years. It was therefore contended that no prejudice flowed from the failure to have regard to the documentation submitted post interview. It was contended that the applicant had not established a clear and compelling case that an injustice had been done that was incapable of being remedied on appeal in circumstances where the applicant had been accorded a full oral hearing on appeal.
Held by the High Court (Phelan J) that the documents not considered were material and potentially relevant to the adverse credibility findings made against the applicant notwithstanding that it was accepted, with the benefit of the doubt, that he was a border guard; the benefit of the doubt might have further availed the applicant had it been concluded that his claims were substantiated in material part by documentation. In view of the nature of the claim advanced by the applicant, Phelan J was satisfied that the omission of the documentation likely undermined the thoroughness with which the application was examined. She concluded that the failure to examine the three identified documents at first instance as required under Part 5 of the International Protection Act 2015 was not cured by a request that the documentation be translated and available for the purpose of the appeal, recalling that the function of the second respondent, the International Protection Appeals Tribunal (IPAT), on appeal is based on an examination at first instance at which the application is comprehensively presented. She was satisfied that an order of certiorari may be granted because the first instance decision was made in breach of the requirements of fair procedures in a manner which she considered to have fundamentally undermined the integrity of the process. It seemed to her that the balance was tipped in favour of a conclusion that certiorari was the appropriate remedy as it was the remedy necessary to attain a just result; a just result was one which reflected the fact that the applicant had a statutory entitlement to have his claim assessed and examined at first instance based on his comprehensive account and reassessed on appeal pursuant to the provisions of the 2015 Act. She held that the documents not assessed and considered in the examination of the claim were material in a manner akin to the document not translated in Stefan v Minister for Justice [2001] 4 I.R. 203. Just as in Stefan, she concluded that the availability of a fair appeal did not cure the absence of a fair first instance decision in this case.
Phelan J held that it was appropriate to exercise her discretion to extend time for the bringing of the proceedings pursuant to s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 as good and sufficient reason had been established on the affidavit evidence explaining the delay in commencing proceedings. She extended time up to and including the 23rd of January, 2022 when the leave application was moved before Meenan J. Phelan J made an order of certiorari in terms of para. D(1) of the statement of grounds.
Application granted.
JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 6 th day of December, 2023
. The Applicant is an International Protection applicant from Georgia who seeks to challenge a first instance decision of the International Protection Office (hereinafter “IPO”) refusing him international protection arising from an admitted failure to consider documents during the decision-making process.
. The Applicant arrived in the State in or about the 25 th of October, 2021 and applied for international protection the following day. The Applicant claims to have been present in his capacity as a border guard for the Georgian Government at an incident in August, 2012 when there was an attempt by an armed group to cross the border into Georgia at a village called Lapankuri (also known as ‘Lapanquri’) in Georgia, near the border with Dagestan. The armed group took some Georgian hostages. There were over a dozen deaths which included all the known members of the armed group and some Georgian personnel. This became known as the “ Lopota Incident.” It was an occasion of considerable political tension involving the Georgian State's relationship with Russia. There were fears concerning terrorist activity near the Georgian border and a risk of this being used as a pretext to Russian incursion into or military interference in Georgian territory. Several members of the armed group who were shot by Georgian authorities transpired to be Georgian citizens of Kist ethnicity. There were accusations against the Georgian authorities of having acted unlawfully in deliberately obscuring the facts surrounding the incident. The incident was also a focal point of internal political tensions between opposing Georgian political factions.
. A man who was shot (but survived) the incident was named Ahmed Chataev. He claimed to have been acting as a go-between for the Georgian Authorities and the armed group at the request of the Georgian authorities. He was arrested and put on trial by the Georgian authorities for participation with the armed group having failed to surrender to the Georgian authorities but was acquitted. The Applicant claims to have been brought to the trial by his employers to positively identify this man but he refused to do so as he had not himself seen him. The Applicant nonetheless believes that he himself was identified by reason of his presence at the trial by members of the Kist community who believed that he was personally involved in the wrongful deaths of Kists in the incident. He believes he became at risk in consequence. As set out in the Notice of Appeal, this man, Ahmed Chataev, was later killed as the leader of a Russian-speaking faction of Islamic State (IS) during a siege by Georgian special forces of an apartment block in Tbilisi in November, 2017. It is pointed out on behalf of the Applicant in these proceedings that the Applicant was not asked for the name of this man during the investigation of his claim and no information referring to him was relied on at first instance. The Applicant also claims to fear that he would be part of a group who may ultimately be scapegoated by the Georgian government as having been personally responsible for unlawful acts during the incident.
. The Applicant was interviewed on the 15 th of August, 2022 on behalf of the IPO further to the examination of the Applicant's international protection claim. Material parts of the personal interview of the 15 th of August 2022, comprising the ‘examination’ of the claim within the meaning of ss. 34 to 39 of the International Protection Act 2015 (“the 2015 Act”), arise at questions 21 to 25 in which the interviewer specifically seeks:
(i) proof of employment;
(ii) proof of Police Academy training; and
(iii) bank statements showing the payment of his wages.
. It is recorded in the record of interview that the Applicant was told at question 25 of the said interview:
“You have ten working days to provide this office with both the evidence of your bank statements and evidence that you were in the police academy in Tbilisi.”
. The Applicant is recorded as then specifically asking whether it was acceptable to submit an electronic copy of the documents sent to him and whether he needed to translate them. He was assured that it was acceptable to submit the documents electronically and that the IPO would attend to the translation of the documents.
. On the 20 th of August, 2022 the Applicant sent two emails to the IPO which contained different file formats of two documents. The first document purported to be a copy of a certificate from 2010 confirming that the Applicant had attended special basic training courses for border guards of the Contact Service of the Land Border Protection Department of the Border Police of the Ministry of Internal Affairs of Georgia at the Academy of the Ministry of Internal Affairs of Georgia. The second document purported to be a bank statement for a bank account of the Applicant's showing payments from the Department of Border Protection being made between the 20 th of January, 2021 and the 24 th of August, 2021.
. On the 24 th of August, 2022 the IPO replied to the Applicant stating:
“I wish to acknowledge receipt of your correspondence. Can you please quote your full name, Person ID number, current address and reason for sending so we may assist or process accordingly?”
. The Applicant replied by...
To continue reading
Request your trial