THE HIGH COURT
JUDICIAL REVIEW
[2025] IEHC 186
Record No. 2025 315 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
Y. X.
APPLICANT
AND
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENTS
RULING of Ms. Justice Siobhán Phelan, delivered on the 28th day of March, 2025.
INTRODUCTION
1. In these proceedings the Applicant seeks to challenge the decision of the International Protection Appeals Tribunal (hereinafter "IPAT"), affirming the recommendation of the International Protection Officer under s. 39(3)(c) of the International Protection Act, 2015 in finding that he was not entitled to subsidiary protection or refugee status.
BACKGROUND
2. The Applicant is a national of Albania. He made a claim for international protection on the 16th of September, 2022. He was interviewed by the International Protection Office (hereinafter "IPO") pursuant to s. 13(2) of the International Protection Act 2015 (hereinafter "the 2015 Act").
3. The claim was advanced on the basis that if returned to Albania. the Applicant would be at risk of persecution by reason of his fear of threats from his friend's father arising from his failure to pay back a sum of €500.00 borrowed from his friend.
4. In the initial application form he gave his reason as applying for international protection as:
"Got in a fight. Father is a chief of police and he threatened my life."
5. He duly completed an International Protection Questionnaire. In the IPO Questionnaire, he referred again to a fight with his friend and threats from his father but added:
"He called me from anonymous numbers"
He claimed not to have reported this because:
"I think that [name] is chief of police".
He gave as his fear of returning to Albania:
"my friend's father will kill me."
6. The Applicant was then interviewed pursuant to s. 35 of the 2015 Act. During the interview, he acknowledged that while he had previously referred to previous threats occurring over a period, there had in fact been one verbal threat made over the telephone. This threat was claimed to have occurred within an hour of a physical altercation between himself and his friend.
7. He also resiled from his previous claim that his friend's father was chief of police, indicating instead that he thought he worked for the police. When it was pointed out to him that he had previously claimed that he was chief of police, he said he:
"wanted to say something similar today, because in Ablania if you have friends and connections you can do anything, and as far as I know works for the police."
8. By letter dated the 27th of August, 2024, he was informed that the IPO recommended pursuant to s. 39(3) (c) of the 2015 Act, that he should be given neither a refugee declaration nor a subsidiary protection declaration. In the s. 39 Report, it was pointed out that Albania has been designated as a safe country of origin pursuant to s. 72 of the 2015 Act. It was further pointed out that the inconsistency regarding the number of threats received and in relation to whether his friend's father worked as a chief of police had been put to him, without being adequately addressed. It was noted:
"the applicant's account in relation to this element of his account is inconsistent and vague and he failed to show depth and specificity as to how he was threatened by his friend's father. As consistency sufficiency of detail and specificity are considered key credibility indicators and the applicant provided a vague inconsistent and non-specific account regarding this aspect of his claim, this is deemed to undermine this aspect of his claim. Consequently, the applicant is not given the benefit of the doubt in relation to this aspect of his claim...... the differences between the applicant's questionnaire and interview are considered to be credibility issues in relation to the applicants internal inconsistency."
9. The Applicant was further advised that his application under s. 49 of the 2015 Act for leave to remain had been unsuccessful.
10. By Notice of Appeal dated the 29th of August, 2024, the Applicant appealed the recommendation of the IPO to the IPAT on the grounds that his account was credible and accordingly he was entitled to international protection. Further, within the Notice of Appeal, he sought that the appeal be determined by way of an oral hearing. In the grounds of appeal advanced, general assertions were made but no specific basis relating to the findings of the IPO requiring an oral hearing was identified. In particular, the Applicant did not seek to expand in any way on the threat made or identify any factual matter which he might wish to address at an oral hearing.
11. In a decision dated the 13th of February, 2025, which was communicated to the Applicant by letter dated the 14th of February, 2025, the Applicant was informed that the IPAT affirmed the recommendation that he should be given neither a refugee declaration nor a subsidiary protection declaration. The said decision also contained the IPAT's negative decision on his request for an oral hearing.
12. At paragraph 22 of the IPAT decision it was stated:
"Applying the benefit of the doubt it is accepted that there was one threat made. The Tribunal considers the fact that there was only one threat made to be a key material fact when assessing whether or not the fear is well founded."
13. While it was accepted that a single threat had been made, the Applicant's allegation of police corruption was rejected as follows (paras. 23-26):
"The Appellant alleges that he did not report the threat to the police on foot of his claims of corruption and, specifically, that the police do not act unless payment is made. There is inconsistency in the Appellant's account. In his questionnaire he says his friend's father was Chief of Police; however, he then claimed he worked for the police. Of note, on the Appellant's own evidence, he never experienced any other difficulty or problem in Albania. It is not accepted that the Appellant did not report the threat to the police on foot of an honest belief regarding police corruption given the inconsistency in evidence."
14. The IPAT rejected that the Applicant had established a well-founded fear of persecution noting again that the fear rests on one threat from his friend's father which was not reported to the police. The IPAT said (at paras. 31-32):
"Considering his nationality, his personal circumstances which have been accepted previously and the country-of-origin information relevant to the analysis, the Tribunal finds that there is no reasonable chance that if the Appellant were to be returned to his country of origin he would face a well-founded fear of persecution. Looking at the case in the round and weighing up the credibility indicators in respect of the material facts, the Tribunal does not accept that the Appellant has a well-founded fear of persecution from his friend's father."
Substantial Grounds Threshold
15. As noted above, in these proceedings, the Applicant seeks an order quashing the decision of the IPAT made under s. 46 of the 2015 Act. This decision is subject to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 and the higher threshold of "substantial grounds" applies to the decision to grant or refuse leave to proceed by way of judicial review.
16. The substantial grounds test for leave which applies by virtue of s. 5 of the 2000 Act was as 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" applies.
DISCUSSION AND DECISION
17. It is contended on behalf of the Applicant that the IPAT erred in law by making an irrational finding at para. 24 wherein it is stated there "is inconsistency in the Appellant's account. In his questionnaire he says his friend's father was Chief of Police; however, he then claimed he worked for the police". It is contended that the IPO at p.7 of its section 39 report identifies this as an inconsistency in his account and furthermore expressly rejects the Applicant's explanation for this as given at s.35 q.42 of his interview. It is claimed that it is insufficient, as a matter of law, for the IPAT to rely on the same identified inconsistency without engaging with the explanation and/or clarification offered by the Applicant at his interview. In consequence it is contended that the finding made is an error of law. In this regard, the Applicant relies on K. (Zimbabwe) v. The International Protection Appeals Tribunal [2023] IEHC 6 (Unreported, High Court, Simons J., 11th January, 2023).
18. In K. (Zimbabwe), Simons J., when considering the legality of an IPAT decision where, as per para. 24, said:
"[the] Appeals Tribunal purported to identify supposed "inconsistencies" between the applicant's narrative of events as recorded in the questionnaire; the personal interview; and the oral hearing before the tribunal itself. The Appeals Tribunal then relied on these supposed "inconsistencies" to discount the entire of the applicant's narrative, concluding that the only core facts which had been established were that the applicant is a single mother from Zimbabwe."
19. The Court went on to find a fragility in the decision where there is no meaningful engagement with the applicant's explanation.
20. The principle established in K. (Zimbabwe) is uncontroversial, but it is difficult to see how it assists the Applicant in this case. Quite apart from the fact that the factual circumstances were much different in K. (Zimbabwe) because a myriad of different so-called inconsistencies, some not inconsistencies at all, were identified in that case by the decision maker without meaningful engagement with the explanations provided, for the principle established by K. (Zimbabwe) to apply, it would be necessary for the Applicant to have provided an explanation which properly should have been considered because of what was offered by way of explanation.
21. Unlike in K. (Zimbabwe), in this case the identified inconsistency was expressly put to the Applicant and his response was recorded and addressed by the IPO. This was not a case in which the IPAT engaged in a separate exercise in identifying inconsistencies. On foot of the s. 39 report in which the inconsistency in question and the explanation were recorded, the Applicant said nothing further in relation to the IPO's conclusions in his appeal submissions. Frankly, it is difficult to read his response as recorded during interview and addressed by the IPO as any kind of explanation. He simply said that he thought his friend's father was chief of police, but he was "not sure". He added that if you have friends in the police in Albania, "you can do anything, and as far as I know he works for the police."
22. I fail to see how, in the absence of anything further from the Applicant by way of expansion of what barely qualifies as an explanation at all, it was necessary for the IPAT to engage any further with the Applicant's response during interview when the inconsistency was put to him. It does not seem to me that the Applicant offered any explanation other than that he went from asserting a fact to accepting that he was "not sure" and adding that while maybe not chief of police, he still thought his friend's father worked for the police. I fail to see why anything further required to be said when recording that there was an inconsistency in the Applicant's account. This is not a situation where an explanation was rejected without there being an intelligible basis for rejecting it but rather one where no real explanation was given by the Applicant.
23. It is further contended on behalf of the Applicant that insofar as the IPAT went on to state at para. 32 that the "Appellant has evidence in the form of payslips of working in a barber's shop and certainly would have capacity to pay back the 500 euro on foot of these earnings were he to return," complaining that this finding was not made at first instance or put to the Applicant by the IPAT for any comment on same. It is submitted that the IPAT is in breach of fair procedures and/or natural and constitutional justice by making a finding of this nature without affording the applicant any meaningful opportunity to address "this critical point". It is submitted that there is a duty to put a matter of "material concern, of substance and significance to the decision" to an applicant, as required or identified by the Court of Appeal at para. 42 of its judgment in B.W. v. Refugee Appeals Tribunal [2017] IECA 296. It is further submitted that the right to an effective remedy and/or fair procedures entitles and applicant's legal representative to make a submission on a significant material issue that is being raised for the first time at the appeal stage.
24. It is well established that the right to fair procedures requires that a party be afforded an opportunity to be heard in respect of any matter which is liable to impact on a decision affecting him. As acknowledged in B.W., however, when fairness requires that a matter is directly put is to some extent fact-dependent and each case will need to be considered on its own facts. The principle can be distilled down to a right to be heard where the concern arising for the first time on a papers only appeal is a material concern, namely, one that has the capacity to affect the outcome of the appeal.
25. It is difficult to read the observation in relation to the Applicant's earning capacity as critical to the decision made as contended on behalf of the Applicant, nor do I consider it to be arguable that it was a material concern which had the capacity to impact on the decision on appeal. On the contrary, it appears from the structure and order of the IPAT decision that the decision was grounded on the fact that there was only one threat, unreported to the police, with a lack of consistency in the responses given regarding the making of the threat and the failure to report it to the police which undermined the credibility of the claim coupled with the fact that Albania is a designated safe country of origin. Before even getting to the curial part of the decision, the IPAT member notes (at para. 22):
"The Tribunal considers the fact that there was only one threat made to be a key material fact when assessing whether or not the fear is well-founded".
26. The IPAT returns to the fact that only one threat was made (at para. 29) having rejected the credibility of the contention that the Applicant did not report the threat to the police on foot of an honest belief regarding police corruption given the inconsistency in his evidence (at para. 26) before finding (at para. 32) that the Applicant had failed to establish a well-founded fear of persecution from his friend's father. Reference is only made to the Applicant's earnings after these core findings are made. His earnings are not obviously relied upon in making the finding that the Applicant had not demonstrated a well-founded fear of persecution, coming after the statement to that effect in the decision. In the terms in which the observation is recorded, it is not advanced as the basis for the decision.
27. Furthermore, in determining whether a fairness issue might arguably arise, it is not suggested on behalf of the Applicant that the IPAT erred in fact when observing that the Applicant had capacity to earn money to enable him to pay back a debt of the order of €500 based on the payslips he had submitted in support of his claim. He does not demur from the fact that his payslips confirm that he has earning capacity which would enable him to pay off a debt of the order he identifies. The Applicant does not set out what he could usefully have said in respect of the IPAT's observation if it had been expressly put to him and therefore fails to substantiate any claimed unfairness on the facts grounding his application. On its facts, this case is entirely distinguishable from B.W. where matters not put were significant and several, one such matter described by the decision maker in the body of the decision as striking "at the integrity of the account put forward by the Applicant". The same cannot be said in this case.
28. In this case, the reference to the payslips appears as an aside in the decision coming after the material findings were made. No weight was ascribed to it in rejecting the credibility of the Applicant's claim and it seems clear that it is incidental and not central to the reasoning of the IPAT in rejecting the claim.
CONCLUSION
29. For the reasons set out, I am not satisfied that the Applicant has discharged the burden on him at leave stage of demonstrating substantial grounds for seeking relief by way of judicial review. I do not consider the basis advanced meets a threshold of reasonable or weighty but are in the realm of trivial and tenuous. Accordingly, I refuse leave in this case.