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Cite as: [2019] IEHC 763

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THE HIGH COURT

[2019] IEHC 763

[2019 No. 203 JR]

BETWEEN

B, C (A MINOR) SUING BY HER MOTHER AND NEXT FRIEND, B, D (A MINOR) SUING BY

HIS MOTHER AND NEXT FRIEND, B, AND E (A MINOR) SUING BY HER MOTHER AND

NEXT FRIEND, B

APPLICANTS

– AND –

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

JUDGMENT of Mr Justice Max Barrett delivered 14th day of November, 2019.

1. Ms B and her husband, both Albanian nationals, have latterly had a wretched time in

Albania. They fell victim to a onetime co-worker of Ms B who began stalking Ms B at her

workplace, initially leaving her unwanted anonymous messages at her workstation and

later making anonymous telephone calls to her landline. Subsequently, he vandalised the

car belonging to Ms B’s husband and even appears to have shot several times at her

husband when he was out driving. In the end, matters became so bad that Ms B quit her

job and moved with her family to Tirana. But they were settled there for only a short time

when, it seems, they woke up one morning to find a cat’s head left in a box on their

doorstep, an episode Ms B and her husband attribute to the stalker. Ms B believes that

the stalker enjoys political influence/protection in Albania and the episode of the cat’s

head seems to have been the last straw. Thereafter, despite having made a previous

complaint to the police about the pre-Tirana occurrences, Ms B and her family took the

decision to flee Albania and have ended up in Ireland.

2. Almost all the elements of Ms B’s account of events has been accepted by the

International Protection Appeals Tribunal (‘IPAT’) which, in a decision of 06.03.2019 (the

‘Impugned Decision’) has concluded, inter alia, that: the stalker “who has already proven

himself to be relentless and to use physical and psychological force in the advancement of

his objectives, remains a credible threat”; and that “there are substantial grounds for

believing that if [Ms B]…were to be returned to…[Albania, she] and her infant children

would face a real risk of suffering serious harm in the form of physical and/or

psychological harm at the hands of her stalker”. However, the IPAT has ruled against Ms

B’s application for asylum and subsidiary protection on the basis that: the persecution

feared by Ms B, should she return to Albania, does not have the necessary nexus to

Convention grounds; and that Ms B has not shown that she would not enjoy State

protection or that, were she to return to Albania, its laws would not be applied for the

benefit of her and her family.

3. The notion that Ms B’s stalker might enjoy a certain freedom of action because of his

political connections was touched upon at some length in Ms B’s s.11 interview. So, for

example, the following exchanges occurred (there are a limited number of errors in the

grammar/syntax as Ms B is not a native English speaker):

“Q56:

Why do you believe the police will not prosecute Mr [X, the stalker]?

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A56: The police in Albania are quite corrupt….[Mr X] has connects with the police

and people in the government. He got the job because of political

connections. He didn’t deserve it….Even if he goes to prison…he will come out

of it in 2 or 3 months so what’s the point really? Even if you go and report

these situations in Albania, the police wouldn’t support or protect you from

these people. In Albania there are so many cases very similar to my one…and

the police haven’t taken them seriously. Some of them have ended up

killed….The people who have relationship with politicians and money, only

they win cases.”

Q57: Who are Mr…[X]’s political connections?

A57: With the Socialist Party. Members of the Party in the area where he lives. The

reason they favour them [is] because they help them through the elections to

get more votes. The favour they give them is to give them jobs and protect

them from these kinds of situations.

Q84: Did you report the incident in Tirana to the police?

A84: No I just left, I didn’t bother. The police they always say that they will take

care of this and that but they never do….It is corruption in every angle.”

4. Similar exchanges transpired at Ms B’s s.35 interview, for example:

“Q56:

At the start of this interview, you spent quite a bit of time telling me

about how political parties reward their supporters with jobs in Albania. I

don’t understand how that relates to your claim. Could you please explain?

A56: It relates because it is one of the reasons that I can’t go to the police about

him because I know that he had political protection.

Q57: How do you know that he has political protection?

A57: I said at the beginning that he came with the group of people that were

rewarded with jobs. In Albania, they buy votes…..[Those who sell their votes]

are politically protected and they are untouchables. The justice system in

Albania doesn’t work.

Q58: So you haven’t actually been told by anyone that [Mr X]…is politically

protected?

A58: But I know it. Albania is a small [country] and it is easy these things. I know

a lady in Albania who was a judge. She was killed by her stalker. She looked

for protection and she even wrote to the American ambassador….She was

killed. Now who am I? What chance do I have….You might think it’s insane

but that’s how it works in Albania and we had to come here and abandoned

our good life in Albania [Ms B is a degree-educated woman and her husband

is a businessman]. I want our daughter to have life. I would not endure the

life I have here unless I really had to.”

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5. There are other exchanges at the two interviews that deal with the issue of State

protection and corruption. However, the above suffices to give an overall sense of the

thrust of the interviews in this regard.

6. In passing, the court notes that, regrettably, Ms B’s concerns regarding the Albanian

police are not some figment of her imagination. The Country of Origin Information (‘COI’)

to which the IPAT had regard, included the following observation in a US State

Department Report (an observation endorsed by the UK Home Office in certain other COI

that was before the IPAT): “Police did not always enforce the law equitably. Personal

associations, political or criminal connections…often influenced law enforcement”.

7. What legal errors are contended by Ms B to arise in the Impugned Decision? Such errors,

as she contends for, are perhaps best addressed by turning to the five questions which

the Impugned Decision is contended by Ms B to present.

A. (a) Did the IPAT fail to give adequate reasons for its finding that, based on COI,

State protection would be available to the applicants; (b) Has the IPAT thus acted

in breach of constitutional justice in breach of s.46(6) of the International

Protection Act 2015 (‘Act of 2015’)?

8. ‘Yes’ to both (a) and (b). Despite the political connections of Mr X being, to use a

colloquialism, ‘front and forward’ in Ms B’s application, the IPAT in its conclusions, and in

the face of the COI referenced above, offers no reasons as to why Mr X’s political

connections do not affect the availability of effective State protection. The duty to give

reasons has now been fully elaborated upon, some might contend too fully elaborated

upon, by the Superior Courts in recent years. So the court will be brief: it is clear from,

e.g. Connelly v. An Bord Pleanála [2018] IESC 31 that a person affected by a decision is

at least entitled to know in general terms why a decision was made. Ms B has been left by

the IPAT with no reason as to why Mr X’s political connections, an issue of central

importance to her application, are perceived by the IPAT not to affect the availability of

effective State protection to her. There is, in consequence, (i) a breach of s.46(5) of the

Act of 2015 and the duty to communicate reasons imposed thereby, and (ii) a breach of

fairness of procedures.

B. In deciding that State protection would be available, did the IPAT (a) err in law and

(b) act ultra vires by failing (I) to apply the State protection test and procedure

required by section 31 of the Act of 2015 and (II) to pose the correct question in

this regard?

9. ‘Yes’ to both (a) and (b). Section 31(1), (2) and (4) of the Act of 2015 provide

respectively as follows:

“(1) For the purposes of this Act, protection against persecution or serious harm

can only be provided by – (a) a state, or (b) parties or

organisations…controlling a state or a substantial part of the territory of a

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state, provided that they are willing and able to offer protection in

accordance with subsection (2).

(2) Protection against persecution or serious harm – (a) must be effective and of

a non-temporary nature, and (b) shall be regarded as being generally

provided where – (i) the actors referred to in paragraphs (a) and (b) of

subsection (1) take reasonable steps to prevent the persecution or suffering

of serious harm, and (ii) the applicant has access to such protection.

(4) The steps referred to in subsection (2)(b)(i) shall include the operating of an

effective legal system for the detection, prosecution and punishment of acts

constituting persecution or serious harm.”

10. The just-quoted text yields the following questions for determination by IPAT when

deciding whether or not State protection would be available:

(1) Does the State in question take reasonable steps to prevent the persecution

or suffering of the serious harm feared by a particular applicant?

(2) Do such steps include the operating of an effective legal system for the

detection, prosecution and punishment of acts constituting persecution or

serious harm?

(3) Is such protection effective and of a non-temporary nature?

(4) Does the particular applicant have access to such protection?

11. Regrettably, the IPAT not only fails to pose the correct questions in this regard (a

particular deficiency highlighted in A.A. (Pakistan) v. The International Protection Appeals

Tribunal [2018] IEHC 497, para. 12) but, insofar as it considers this aspect of matters in

the Impugned Decision, the IPAT does not enquire into (a) the steps taken by Albania to

subject a man like Mr X, who is claimed to have political connections, to criminal sanction,

(b) whether Ms B, in the circumstances presenting, would receive protection of an

effective and non-temporary nature, and (c) whether Ms B would have access to such

protection in a situation where Mr X (a man found by the IPAT to present a “credible

threat”) is alleged to have political connections.

C. In assessing State protection, did the IPAT (a) err in law and (b) fail to consider

relevant matters, by failing to assess in light of relevant COI whether State

protection might reasonably have been forthcoming had the first applicant made

further reports or given further information to the police in Albania?

12. Somewhat unusually, ‘yes’. While, e.g., the A.A. case, op. cit., para. 8, indicates that a

decision-maker is not required to engage in a narrative consideration of COI, where (a)

an applicant’s evidence is accepted (as here) to be generally credible, (b) the applicants

have raised the issue of political connections, (c) the COI supports the concerns

expressed by the applicants, and (d) the IPAT proposes to find (as here it found) that the

applicant did not give the relevant state (here the Albanian) authorities sufficient

opportunity to provide State protection, it seems to the court that in those particular

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circumstances the IPAT is obliged to point to such COI as indicates that State protection

might reasonably have been forthcoming had such an opportunity been provided.

D. In finding that State protection would be available, did the IPAT breach s.28 of the

Act of 2015 (a) fail to take into account relevant matters by (b) failing to take into

account all relevant facts as they relate to Albania, including laws and regulations of

the country of origin and the manner in which they are applied?

E. In finding that State protection would be available, did the IPAT breach s.28 of the

Act of 2015 and fail to take into account relevant matters by failing to take into

account and assess the relevance of Mr X’s political connections as referred to by

Ms B?

13. The IPAT failed to take into account relevant matters by failing to consider/assess the

political connections of Mr X flagged by Ms B.

14. Finally, on a general note, the court notes the contention by IPAT in its written

submissions that “[t]he imposing feature of this case is that [Ms C]…is from a designated

safe country”. Such a designation is not lightly made and before it is made the various

elements of s.72 of the Act of 2015 must be satisfied. However, it is clear from s.33 of

that Act that while designation is a matter of practical and legal significance (and it is), a

safe country of origin shall be considered to be a safe country of origin “only where…(b)

the applicant has not submitted any serious grounds for considering the country not to be

a safe country of origin in his or her particular circumstances and in terms of his or her

eligibility for international protection”. It is apparent from the evidence before the court

that Ms B has submitted such “serious grounds”; and that it seems to the court, with

respect, is a more “imposing feature of this case” than the fact of designation simpliciter.

15. For the various reasons identified above, the court would be, and is satisfied, to grant the

order of certiorari sought in the notice of motion of 11.04.2019. However, the court

understands from the oral hearing that a more qualified order of certiorari is now perhaps

being contended for and will hear the parties further in this regard, if necessary;

otherwise it will make the order just indicated.

Result: Judgment in favour of the applicants.