High Court dismisses certiorari application against International Protection Appeals Tribunal's credibility finding on asylum claim.

THE HIGH COURT

[2024] IEHC 689

[Record No. 2023/883JR]

BETWEEN

G.S.

APPLICANT

AND

INTERNATIONAL PROTECTION APPEALS TRIBUNAL, MINISTER FOR

JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr Justice Barr delivered electronically on the 6th day of December 2024.

Introduction.

1. In these proceedings the applicant seeks an order of certiorari in respect of a

decision of the first respondent made on 14 June 2023, which was notified to him by letter dated 21 June 2023, in which the first respondent affirmed the recommendation that he be given neither a refugee declaration, nor a subsidiary protection declaration, pursuant to s.46 of the International Protection Act, 2015 (hereinafter “the 2015 Act”).

2. In essence, the applicant’s case for international protection was based on the assertion that in or about September 2022, he embarked on a brief affair with the wife of his cousin. He alleges that upon discovering the affair, his cousin assaulted him on three separate occasions, sometimes in the company of other friends or associates. He states that he was so frightened by these events, that he left his native country of Georgia on 09 November 2022. He travelled to Ireland via Germany, Spain, France and the UK; eventually illegally entering the State on 02 December 2022. He applied for international protection on 05 December 2022.

3. For reasons that are set out in the written decision of the first respondent, it found that the applicant’s account was lacking in credibility. In particular, it found that his accounts of the three assaults were implausible; his explanation as to why he could not seek police protection in Georgia was also implausible; and his explanation as to why he left it until cross-examination to state that his cousin was a member of the armed forces and therefore had connections within the security services, was not plausible. Overall, the first respondent found that his account was lacking in credibility.

4. The applicant alleges that this overall finding, and the constituent parts thereof, were irrational in the legal sense, as not being supported by the evidence that was before the Tribunal. The individual grounds of challenge to that decision will be discussed in more detail later in the judgment.

The Applicant’s Story.

5. The applicant is a national of Georgia, who was born on 09 July 1983. He is married and has two children. His wife and children continue to reside in Georgia.

6. The applicant’s story was that he had moved from his hometown of Terjola to Tbilisi many years prior to 2022. He returned to Terjola in September 2022 to visit his family. He stated that while in Terjola he began a relationship with the wife of one of his cousins. One day, a friend of his cousin witnessed the applicant and the woman in a car together in a physical embrace. The applicant states that some short time later, he was accosted by his cousin, who demanded to know what had happened with his wife. The applicant stated that while he denied that anything had happened, his body language had changed and he was not able to hide his lying. The applicant stated that his cousin left and returned some short time later with a friend. He gave the applicant a heavy beating. The applicant stated that he did not try to defend himself. He suffered a black eye and a split lip in the assault.

7. The applicant stated that having returned to Tbilisi, one day when he was returning from work, and was driving through his neighbourhood, he saw his cousin with four of his friends. He stated that he knew that they would beat him up. He drove up to them and tried to talk to his cousin, but his cousin stated that there was nothing to talk about. He then punched in the window of the applicant’s car. The applicant drove away. The applicant stated that his cousin sent him a series of threatening text messages, saying that he would break his bones and cut his face and do other things to him.

8. The applicant stated that four days later, his cousin came to his workplace on a building site in Tbilisi with three other men. He was again subjected to a physical assault. This time he did try to defend himself. He sustained injuries from the assault. His wounds were was treated with materials the first aid kit on site.

9. The applicant stated that one of the men who assaulted him was a friend of his cousin’s, who the applicant knew to be an ex-police officer. He stated that the man said that if the applicant went to the police to report the assault, nothing good would come of it. He said that the applicant would end up in prison and even in prison he would have no peace.

10. The applicant stated that ten days later, he returned to Terjola for a family meeting. He met with his family, including his cousin. This meeting took place at his uncle’s house. He stated that he had tried to apologise to his cousin, but his cousin did not want to hear the apology. His cousin was angry and aggressive. He stated that his cousin verbally assaulted his uncle and started throwing stones and breaking the windows of his uncle’s house.

11. The applicant stated that on 09 November 2022, his children spotted his cousin close to their apartment block. The applicant stated that his cousin was waiting for him. It was then that he decided to flee Georgia and travel to Europe. The applicant stated that when his cousin learned that he had left for Europe, he stated that he would get people to do the same thing to the applicant that he had done to him in Georgia.

12. As already noted, the applicant left Georgia on 09 November 2022. He travelled to Ireland via Germany, Spain, France and the UK. He entered the State illegally on 02 December 2022. He applied for international protection on 05 December 2022.

The Process Leading to the IPAT Decision.

13. As Georgia has been designated as a safe country pursuant to S.I. No. 121/2018

- International Protection Act 2015 (Safe Countries of Origin) Order 2018, the applicant’s application for international protection was subject to the accelerated procedure provided for under the 2015 Act. Accordingly, when he applied for international protection on 05 December 2022, he was required to complete a questionnaire, which was in the English language. He did that with the assistance of a Georgian language translator. In that questionnaire he gave the following explanation of his reasons for seeking international protection: “I had relationship with a wife of my relative. All their relatives are persecuting me and threatening me. I was told that I [sic] they will kill me. They are looking for me and will kill me. And I decided to leave the country. They broke the windows in my house in Terjola. They were persecuting me everywhere.”

14. Later in the questionnaire he repeated that he had had a relationship with a wife of a relative and that they were threatening him. In response to the question what do you fear will happen to you if you return to your country of origin: he replied “My life will be in danger”. In another question, when asked to describe what people had done to him to make him afraid to return home and to identify such people, he simply identified his cousin and “his relatives”. He confirmed that he had not reported any of the threats to the police. His explanation for that was “I didn’t have possibility and time to do so”.

15. The applicant was invited to attend for an interview on 04 January 2023. However, he did not attend on that date. He stated in his grounding affidavit that he was sick at that time, with a high fever. He stated that he was seen by a doctor on 05, 06 and

07 January 2023. He stated that he got IV drips inserted in his arm on 05 January 2023. He was examined for pneumonia. The applicant stated that he went to the International Protection Office on 06 January 2023 for the purpose of having an interview, but the security staff would not let him enter. He stated that he did not know that he had to submit a medical letter for the purpose of getting a new interview date. He obtained a letter from his doctor; however, that got lost in the hostel. He did not submit it to the International Protection Office.

16. By letter dated 06 March 2023, the applicant was informed that the International Protection Officer had recommended that he should be given neither a refugee declaration, nor a subsidiary protection declaration. Having obtained legal aid, he obtained legal representation on 20 March 2023, at which time his legal representatives submitted a notice of appeal to the first respondent.

17. The first respondent granted an oral hearing of the appeal, which was heard online on 02 June 2023. The decision of the Tribunal was reached on 14 June 2023. It was communicated to the applicant by letter dated 21 June 2023, which was received by him and by his solicitor on 23 June 2023.

18. On 10 July 2023, the second respondent made a decision under s.49(7) of the 2015 Act, which was communicated to the applicant under cover of letter dated 13 July 2023. This was a review of a decision made by him or her under subs. (4)(b) in respect of the applicant concerned, whereby he was refused a permission to remain in the State. The within proceedings were filed in the Central Office of the High Court on 26 July 2023. The proceedings were opened for the purpose of stopping time, on 31 July 2023. The applicant was granted leave to proceed by way of judicial review by order dated 27 October 2023.

The Challenged Decision.

19. The applicant’s challenge to the decision of the first respondent dated 14 June 2023, focusses on a number of key findings in the decision which are contained in the following paragraphs: - “4.30 Focussing on the evidence given by the appellant at the hearing, the Tribunal finds his account to be vague and lacking specificity in key areas. It is understandable that the appellant’s cousin would be enraged and retaliatory after discovering the appellant had slept with his wife. However, it is unclear how he would manage to attack the appellant three times, causing him some injury, in broad daylight, without anyone else intervening or protecting the appellant, or calling the police. By the appellant’s own account there were numerous bystanders when he was attacked.

4.31 It is also unclear why the appellant did not seek assistance from the police. His explanation, that he could not as his cousin’s friend was an ex-police officer, is implausible. He stated that if he complained to the police, he himself could end up in prison, which would seem implausible, irrational and/or exaggerated.

4.32 The appellant mentioned late in his evidence at hearing that Beso himself was serving in the Georgian Army, and given the level of nepotism and corruption in the Georgian authorities this had dissuaded him from seeking protection from the police. The fact that he did not mention this detail in the narrative that he had given to the Tribunal initially, undermines his general credibility.

4.33 The appellant’s account of his encounter with Beso near his home in Tbilisi also lacked credibility. He said that he was driving home when he saw Beso with four friends and ‘I knew that he would beat me up’. However, he decided to stop the car to try to talk to Beso. The Tribunal finds this inexplicable and implausible.

4.34 The appellant himself stated that given time, he hoped Beso would forgive him. Yet he did not wait to see if Beso cooled down over time, instead he decided to leave the country almost immediately. The Tribunal finds it implausible that the appellant would need to leave Georgia in order to evade harm from this one man, his own cousin. Conclusions and credibility.

4.35 The Tribunal has weighed matters in the round. The appellant’s account does not surmount the (low) threshold applicable. The Tribunal does not accept any of the core facts of his claim, except for his nationality. The Tribunal does not accept that the appellant held a genuine fear of persecution when he left Georgia.”

The Applicant’s Submissions.

20. The applicant’s first ground of challenge concerned the findings made at para.

4.30. It was submitted that it was not open to the Tribunal to deal with the three separate incidents where the applicant stated that he had been assaulted and to reject the credibility of them on the basis of an omnibus finding that the three separate assaults could not have occurred “without anyone else intervening or protecting the appellant, or calling the police”. While it was conceded on behalf of the applicant that the three separate assaults had been set out earlier in the decision at paras. 4.7 to 4.10, it was submitted that the lack of particularisation of the assaults, or the evidential basis for the

conclusion reached in respect of each assault, vitiated the overall conclusion.

21. The applicant’s second ground of complaint related to the finding at para. 4.31 that it was unclear why the applicant had not sought assistance from the police and that his explanation for that was implausible. In an attempt to persuade the Tribunal that it had not been possible for him to report the alleged assaults to the police in Georgia, the applicant had put forward the explanation that one of his cousin’s friends was an expolice officer; therefore, it would have been futile for him to have reported the matter to the police. Furthermore, he alleged that in the course of committing the third assault at the construction site, that man had said to him that it would be a waste of time for him to report the assault and that if he did so, he would likely end up in prison, where he would be subjected to further assaults. In cross-examination, the applicant volunteered the information for the first time, that his cousin was a member of the armed forces.

22. The applicant submitted that it had been irrational to hold that the explanation given for the failure to report the assaults to the police, was implausible or lacking in credibility. Furthermore, while it was accepted that a failure to mention something in an earlier account, was a legitimate feature of evidence which may assist a fact finder to weigh the credibility of a particular account, each discrepancy or inconsistency had to be assessed on its merits. He submitted that the isolation of what was essentially a new fact advanced at the appeal hearing, amounted to a basic unfairness, where there had been no s.35 interview and having regard to the manner in which the application form had been completed.

23. Finally, the applicant submitted that the decision maker had acted in error in making the finding at para. 4.34, that it was implausible that the applicant would leave Georgia “in order to evade harm from this one man, his own cousin”. It was submitted that the Tribunal’s reasoning on this aspect was irrational, as being tantamount to a contention that a person fleeing from a single person could never be a refugee, because such a person would never leave their country on that basis. It was submitted that a finding to that effect could not be a rational finding.

Conclusions.

24. The court accepts the submission made by counsel for the respondents, Ms Martinez BL, that the relevant principles in relation to the assessment of an applicant’s credibility, are those set out in IR v Minister for Justice [2015] 4 IR 144. The court is of the view that principles 5, 8 and 10 thereof as set out at para. 10 of the judgment:

“5) a finding of lack of credibility must be based on correct facts, un-tainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding; 8) when subjected to judicial review, a decision on credibility must be read as a whole and the court should be wary of attempts to deconstruct an overall

conclusion by subjecting its individual parts to isolated examination in disregard of the cumulative impression made upon the decision maker especially where the conclusion takes particular account of the demeanour and reaction of an applicant when testifying in person; 10) nevertheless, there is no general obligation in all cases to refer in a

decision on credibility to every item of evidence and to every ar-gument advanced, provided the reasons stated enable the applicant as addressee, and the court in exercise of its judicial review func-tion, to understand the substantive basis for the conclusion on credibility and the process of analysis or evaluation by which it has been reached.”

25. It is also necessary to state that this is an application by way of judicial review, it is not an appeal from the decision of the first respondent. The test for determining whether a decision of a statutory tribunal is unreasonable or irrational in the legal sense, was set down by Henchy J in State (Keegan) v The Stardust Victims Compensation Tribunal [1986] IR 642. In essence, the test of unreasonableness or irrationality in judicial review, lies in considering whether the impugned decision or finding plainly and unambiguously flies in the face of fundamental reason and common sense.

26. The court also accepts the submission that when a decision maker is reaching his or her decision on a matter, they should apply their knowledge of life and common sense to the evidence before them: see RK v IPAT & Ors. [2020] IEHC 522 at para. 23.

27. When looking at the grounds of challenge raised by the applicant in this case, one has to have regard to the decision as a whole. In the present case, the decision of the first respondent was set out with admirable clarity, without being unduly long. The Tribunal had granted the applicant an oral hearing, due to the fact that he had put in very scant details in his questionnaire and had failed to attend for interview. Thus, the Tribunal acted reasonably in its approach to the appeal.

28. It is also noteworthy, that notwithstanding that the applicant had acquired the benefit of legal representation some three months prior to the hearing of the appeal, he did not take the opportunity to make any further submissions, or elaborate on the responses that he had given in his questionnaire. The Tribunal noted that the grounds of appeal that had been submitted in the notice of appeal, were very general in nature. In its decision, the Tribunal correctly identified the legal parameters that exist when one is considering an application for international protection where a person had fled from a country that was designated as a safe country under SI 121/2018.

29. The Tribunal gave an extensive account of the evidence that had been put before it in relation to the applicant’s story, and in particular in relation to the three assaults that he alleged he had been subjected to in the period September 2022 to November 2022. This evidence was set out in some detail at paras. 4.5 to 4.20.

30. Turning to the specific grounds of challenge raised by the applicant, the court is of the opinion that it was permissible for the Tribunal to deal in an omnibus way with what it perceived were the shortcomings in the factual accounts given by the applicant of the three alleged assaults. It was permissible for the Tribunal to note that the applicant had not mentioned these assaults in his questionnaire. At that stage, he had merely indicated that he had been threatened due to his affair with his cousin’s wife.

31. The court is satisfied that the findings made at para. 4.30 cannot be regarded as irrational or unsupported by evidence, having regard to the fact that the Tribunal had earlier in the decision set out in extenso the evidence that had been given by the applicant in relation to each alleged assault. The Tribunal found that there were common aspects of each account that led them to believe that the accounts were lacking in credibility, it was quite permissible for them to deal with these matters in a global way in the findings that were made at para. 4.30.

32. Given the circumstances of the alleged assaults, as given by the applicant in his evidence before the Tribunal, it cannot be said that the findings reached by them at para. 4.30, that his accounts of the various assaults were vague and lacking in specificity in key areas, or that it was unclear how the applicant’s cousin could manage to attack the applicant three times, causing him some injury, in broad daylight, without anyone else intervening or protecting the applicant or calling the police, where on the applicant’s own evidence there were numerous bystanders when he was attacked; were findings that were irrational or not founded on the evidence before the Tribunal.

33. The findings made by the Tribunal were reasonably open to the member to reach on the evidence before her. This is particularly so in relation to the third assault, which apparently took place on a construction site where the applicant was working on the construction of a hotel. One would have anticipated that there would have been many fellow workers working on the site. It was reasonable to anticipate that some of them would have stepped in to protect the applicant if he was suddenly set upon by his cousin and a number of other assailants. Accordingly, the court does not find this finding irrational or unreasonable.

34. The applicant also complained that the Tribunal acted unreasonably when it stated that it was unclear why he had not sought assistance from the police. He submitted that their finding that his explanation that he could not do so, as his cousin’s friend was an ex-police officer, was implausible; was an irrational finding. It was submitted that their finding that his statement that if he complained to the police, he could end up in prison, seemed implausible, irrational or exaggerated; was itself an irrational finding. The court does not accept that to be the case.

35. It has to be remembered that when he first had the opportunity to give an explanation as to why he did not report the matter to the police, he simply stated “I didn’t have possibility and time to do so”. That answer was inconsistent with his subsequent evidence to the Tribunal. In addition, while the applicant had given evidence that one of his cousin’s friends was an ex-police officer, he had not given any detail as to what rank had been held by that man within the police force, or in what part of the country he had served. Furthermore, the Tribunal was entitled to come to the conclusion that his assertion that if he made a complaint to the police against his cousin, he himself might end up in prison, was somewhat implausible, in the absence of any evidence that that may in fact be the case. It was noteworthy that no country of origin information had been furnished by the applicant to support his bald assertions in this regard.

36. The applicant also complained that the finding at para. 4.32, to the effect that the fact that the applicant had left it until very late in the day, in the course of his crossexamination, to bring forward the explanation that as his cousin was serving in the Georgian Army, and that given the level of nepotism and corruption within Georgian authorities, that had dissuaded him from seeking protection from the police; had been held by the Tribunal as undermining his general credibility; was irrational and disproporationate.

37. The Tribunal was entitled to have regard to the fact that that had not been mentioned in his questionnaire, nor in any subsequent statement made in advance of the appeal, nor had it been led in his evidence in chief, but had only been volunteered in the course of cross-examination. The court is satisfied that the Tribunal was entitled to make the finding that the fact that he had not mentioned that detail in his narrative to the Tribunal initially, undermined his general credibility.

38. In his written submissions, counsel for the applicant correctly conceded that case law established that failure to mention relevant facts in an earlier account was something which could assist a fact finder in weighing the credibility of a particular account: see NZ (Pakistan) v IPAT & Ors. [2019] IEHC 125. The court is satisfied that the Tribunal was entitled to have regard to the late emergence of this alleged fact in weighing the overall credibility of the applicant’s explanation for his failure to report any of the alleged assaults, or threats to the police in Georgia.

39. Finally, the applicant challenged the finding made by the Tribunal at para. 4.34 that it was implausible that the applicant would need to leave Georgia in order to evade harm from one man, who is his cousin. The applicant submitted that this finding amounted to a finding that it was never possible for a person to establish the need to flee a country due to threats or assaults from just one person. The court is not satisfied that that contention can be supported by the finding made in this case. The court is satisfied that the Tribunal was not making any global finding that it was never possible for a person to require protection where they were under threat from just one person.

40. Instead, the Tribunal was looking at the overall account in a balanced and fair way. The evidence did not suggest that his cousin was a particularly violent or dangerous man. The evidence before the Tribunal established that, on two occasions the plaintiff had deliberately gone up to his cousin with a view to seeing if things could be patched up. The first occasion was when he drove up to his cousin on the occasion when his cousin allegedly broke the glass in his car window, at which point he drove away. The second occasion was after the third assault, when he went back to Terjola to attend a meeting of the family in his uncle’s house; at which time his cousin apparently threw stones at the windows in his uncle’s house, for some reason that is unexplained.

41. The Tribunal was also entitled to have regard to the fact that in his evidence, the applicant stated that he hoped that in time his cousin would calm down and that they could become friends again. In these circumstances, the finding that it was implausible that the applicant had to take the drastic step of fleeing his country of origin in order to avoid the attentions of his cousin, cannot be regarded as being irrational.

42. Finally, insofar as it was argued on behalf of the applicant that there was a lack of reasoning in the findings made by the first respondent in her decision of 14 June 2023, the court rejects this submission. The court is satisfied that on reading the entirety of the decision, it is patently clear why each of the findings were made by the Tribunal and why it reached its final decision on the appeal.

43. For the reasons set out herein, the court refuses to set aside the decision of the Tribunal dated 14 June 2023, as communicated to the applicant by letter dated 21 June 2023. Accordingly, the court refuses all the reliefs sought by the applicant in his notice of motion.

44. A short extension of time is required to enable the applicant to bring the within proceedings. The applicant was only one week out of time in commencing his application. The court is satisfied that having regard to the matters averred to by the applicant’s solicitor, Ms Stanatescu, in her affidavit sworn on 26 July 2023, that it is appropriate for the court to extend the time within which the applicant may bring the within proceedings.

45. As this judgment is being delivered electronically, the parties shall have two weeks within which to furnish brief written submissions on the terms of the final order and on costs.

46. The matter will be listed for mention at 10.30 hours on 16 January 2025 for the purpose of making final orders.