High Court grants leave to challenge Minister's refusal of permission to remain on procedural grounds under s. 49(3).

THE HIGH COURT JUDICIAL REVIEW Record No. 2025 / 440 /JR [2025] IEHC 260

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

P. F. A.

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE

RESPONDENTS

RULING of Ms. Justice Siobhán Phelan, delivered on the 1st day of May, 2025

INTRODUCTION

1. This is an application for leave, on a substantial grounds basis, to seek orders of certiorari in respect of:

(i) the decision of the International Protection Appeals Tribunal (hereinafter “the IPAT”) affirming the first instance decision that the Applicant be refused refugee status and subsidiary protection status; and

(ii) the decision of the Minister refusing permission to remain pursuant to s.

49 of the International Protection Act, 2015 (hereinafter “the 2015 Act”)

and proposing to make a deportation order.

STATEMENT OF RELEVANT FACTS

2. The Applicant claims to have been born on the 17th of July, 2000, in South Africa. When her father moved to Durban to work as a driver for a named politician (hereinafter “Mr.

Y”), the Applicant continued to reside with her mother in her family home in Johannesburg. The Applicant claims that Mr. Y was a prominent politician with a wellknown political party. When the Applicant was 19, her father got her a job as a cook for Mr. Y and she moved to Durban. She resided with her father and sometimes at her workplace.

3. According to the Applicant, Mr. Y died on the 3rd of July, 2023. The Applicant believes he was murdered by political rivals. She immediately returned to her father’s residence.

4. Following Mr. Y’s death, the Applicant claims that her father received threats related to a document or documents he had been given by Mr. Y. The Applicant maintains that her father had previously informed her of the existence of such documentation but she had no knowledge of the contents of it.

5. The Applicant claims that her father was killed on the 12th of July, 2023.

6. The Applicant returned to her mother in Johannesburg on the 13th of July, 2023. Her mother and siblings had already fled. From her mother’s home, it is claimed that the Applicant was kidnapped by 3 men. She believed that 2 of them were intent on killing her, but the third assisted her to escape and flee South Africa.

7. The Applicant claims that she fled South Africa on the 15th of July, 2023 and travelled to London and on to Belfast and Dublin. She applied for international protection on the 17th of July, 2023.

8. The Applicant completed her questionnaire on the 17th of July, 2023. She outlined how her life was in danger stating:

“My boss Mr. Y had some important political documents and gave them to my father because my boss life was in danger. Not knowing that other politicians found out and killed Mr. Y in the process. My father has been on a run but they also killed him.”

9. On her questionnaire, she also said that she had been kidnapped on the 1st of July, 2023, but was able to escape with the help of one of the kidnappers.

10. The Applicant attended for interview on the 8th of August, 2023, less than a month after her arrival in the State.

11. By letter dated the 11th of September, 2023, she was informed by the International Protection Office (hereinafter “the IPO”) that her international protection application was refused.

12. By letter dated the 24th of September, 2023, the IPO decision was appealed to the IPAT.

Her oral hearing before the IPAT was held on the 28th of February, 2025.

13. By letter dated the 10th of March, 2025, and received by the Applicant on or about 13th of March, 2025, the Applicant was informed that her appeal was unsuccessful. Attached was a copy of the IPAT decision, dated 4th of March, 2025.

14. Following receipt of the IPAT decision, by letter dated 18th of March, 2025, a permission to remain review was submitted to the Minister with supporting documentation.

15. By letter dated the 2nd of April, 2025, the Applicant was informed that the review application was negative and that the Minister was refusing a grant of refugee status or subsidiary protection to the Applicant pursuant to s. 47(5) of the 2015 Act, refusing permission to remain pursuant to s. 49(4) of the 2015 Act, invalidating the Applicant’s

Temporary Residence Card and proposing to make a deportation order in respect of the Applicant.

SUBSTANTIAL GROUNDS THRESHOLD

16. As noted above, in these proceedings, the Applicant seeks orders quashing the decision of the IPAT made under ss. 46 and 49 of the 2015 Act. These decisions are subject to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 (hereinafter “the 2000 Act”) and the higher threshold of “substantial grounds” applies to the decision to grant or refuse leave to proceed by way of judicial review.

17. The substantial grounds test for leave which applies by virtue of s. 5 of the 2000 Act, was 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”.

18. To meet the test the Applicant must identify facts upon which a reasonable or weighty claim may be made that the decision sought to be impugned is unlawful on stateable legal grounds. These are the two related questions to which I now turn.

DISCUSSION AND DECISION

19. A range of issues arise on the pleadings but the most focus in submissions urged on me was on the question of whether the IPAT, in its assessment of credibility, rejected the Applicant’s claim of having worked with a senior politician based on photographs which were unclear and lacking the cogency required for disposition of the claim. It was also contended that the IPAT acted in breach of fair procedures when basing its

decision on the aforesaid photographs, having acknowledged its own misidentification of the politician in the photographs but then proceeding to hold that on the basis of the same photographs, the Applicant was not familiar with the appearance of the politician.

20. Significantly, the IPAT decision describes precisely what transpired in this regard at para. 27 of its decision (and this is not contested on affidavit on behalf of the Applicant)

where it stated:

“At hearing the Appellant was asked what [Mr. Y] looked like. She described him as being “dark and chubby with bald hair”. When asked if he had any other distinguishing features she replied “Not that I could think on. Always a happy man, he would always smile.” Photographs of [Mr. Y] were put to her which showed him as being broad faced but not chubby and with a beard she had not mentioned. The Tribunal misidentified him as being a man with hair photographed on the flags in a photograph of his funeral. The Appellant said “His hair must have recently started growing he didn’t like to keep his hair.”

Whilst the Tribunal was incorrect in the man it identified in the photograph as being Innocent, the Appellant’s response and her previous descriptions indicate that she was not familiar with what Mr. Y looked like. The Appellant had claimed to have worked for him for approximately 4 years.”

21. It is submitted on behalf of the Applicant that this was a fundamental finding insofar as it sundered the Applicant’s entire claim and was made at the commencement of the analysis. It is impugned on the basis that the photographs relied by the IPAT did not provide cogent evidence that “she was not familiar with what Mr. Y looked like”, and because the IPAT acted in breach of fair procedures contrary to the principle ‘nemo iudex in causa sua’ in circumstances where the IPAT had acknowledged that “The Tribunal misidentified him…”.

22. It seems to me that in focussing on the fact that the IPAT misidentified the senior politician which the Applicant claimed to have worked for when showing her a photograph of the wrong person, the Applicant misses the fundamental point which is clear from the decision itself, namely that when presented with a photograph of someone other than the person she claimed she had worked for over a period of four years, the Applicant did not recognise that the person in the photograph was not her former employer. Instead, her response to being shown a photograph of a different person was to state that his hair must have recently started growing. Given that the senior politician is claimed to have been murdered during the currency of her employment with him, this comment made no sense.

23. The Applicant does not address the factual position regarding the photographs on affidavit further, merely referring to the photographs at paragraph 11 of her grounding affidavit and exhibiting them. Specifically, it is not suggested that the photograph that was shown to her was unclear, nor does she otherwise address why she did not recognise that the photograph was not of the person she claimed to be her former boss.

24. It seems to me that adverse credibility findings based on the Applicant’s inability to recognise that the person in the photograph was not her former boss is not amenable to being made the subject of any tenable or weighty challenge on the facts in evidence in these proceedings. To my mind it matters little that the IPAT referred the Applicant to the incorrect photo. What matters is that when the IPAT made this mistake, it was not corrected by the Applicant. Whether the description she gave is different from what the photograph shows is neither here nor there, when she patently did not point out that the photograph was not of Mr. Y.

25. It was manifestly open to the IPAT, on the evidence before it, to conclude that the Applicant was not familiar with what Mr. Y looked like. Such a finding has obvious, fundamental consequences for the credibility of the claim.

26. Secondly, it is contended on behalf of the Applicant that the IPAT made a finding of inconsistency in circumstances where no such inconsistency was apparent from the evidence arising from a finding at para. 28 of its decision where the IPAT found that the Applicant claimed that Mr. Y had given her father some documents to keep. The IPAT noted that she said she did not know what these documents were but claimed that her father had told her about them. In her IPO interview, when asked when she learned about her father being given these documents, she had responded “I never even knew about it, only of recent did I know”. When the question was repeated, she again said “I never really knew about it.” She clarified in response to a further question that she heard about them in May or June (presumably, May or June, 2023).

27. The IPAT found that there was an inconsistency between the Applicant’s claim not to have known until recently that her father had been given the documents and her claim at the hearing to have been told by her father about the documents. This inconsistency is denied on behalf of the Applicant. It is contended on behalf of the Applicant that her consistent evidence was that she was informed by her father of the existence of a document or documents but had absolutely no information about the contents of same.

28. The IPAT decision does not record what the Applicant’s evidence was at hearing as to when her father told her about the existence of the documents and the Applicant has not addressed this on affidavit. It seems to me that it is at least arguable that it is not clear from the decision what the inconsistency identified by the IPAT was. Accordingly, this part of the credibility finding may be open to question. In terms of whether substantial grounds for leave to proceed by way of judicial review to challenge the IPAT decision on this basis are demonstrated, however, this requires a consideration of this admittedly questionable finding in the overall context of the decision and an assessment of the extent to which it was capable of being material to the IPAT’s conclusion as to credibility. In this context, it is important to note that there were several distinct factors, in addition to the failure to recognize that Mr. Y was not the person in the photograph and the finding of inconsistency recorded at para. 28 of the decision, relied upon by the IPAT in concluding that the claim made had not been established on credibility grounds.

29. It is relevant in this context that the Applicant points to a further weakness in the adverse credibility finding based on a contention that the decision is vitiated by a material error of fact as to the Applicant’s evidence. At para. 29 of its decision, the IPAT stated:

“The Appellant had previously claimed that her father had been given these documents without the politicians knowing”.

30. It is contended that the Applicant’s consistent evidence was that associates of Mr. Y were aware that a document or documents were given to her father. It is pointed out that it was put to the Applicant at her s. 35 interview that she had said “....he was given these documents without the other politicians knowing about it.” (Q. 30) to which the Applicant replied that it was known. The Applicant stated in her questionnaire that

“other politicians had found out” and at her s. 35 interview, in reply to Q. 30, she said “..somebody that my boss was working for, knew who kept, who had those documents”.

31. It seems to me that the IPAT’s point in this regard is not that the Applicant had previously claimed that nobody knew her father had been given the documents but rather that when something she had previously said was put to her, she replied by saying “maybe they saw him with my father, maybe they got some hint”. This was different to her previous claim that it was an “inside job”. While there is a difference in the responses, the significance of these differences is questionable where the different responses were equally speculative.

32. As I read the papers, it was not the Applicant’s case that someone specific knew the papers had been given to her father nor did she clearly identify how it became known.

Rather, in essence, her position was that someone must have known because of what she said subsequently transpired. It is not obvious to me that the different responses she gives on the different occasions she is questioned is necessarily suggestive of untruthfulness on the part of the Applicant because the answers given were offered in response to questions asked in a context where it remained clear that the Applicant was maintaining that she did not really know what happened but was prepared to share theories. A willingness to engage in speculation may sometimes, depending on the circumstances, damage credibility but it is not clear that this is what bothered the IPAT in relation to the Applicant’s answers. I accept, therefore, that it is unclear what precise basis the IPAT had for relying on this exchange in making adverse credibility findings.

Like the finding at para. 28, it is arguable that this basis for an adverse finding does not withstand scrutiny and is not a solid basis for an adverse credibility finding.

33. The difficulty with this application when considered in the round, in my view, is that while individual aspects of the adverse credibility findings made may be weak or not adequately explained, the IPAT’s conclusions did not rest on these findings but on a host of identified credibility issues, including issues of questionable weight or significance. Indeed, other issues are suggested on the papers as worthy of probing where the Applicant’s credibility is not accepted as potentially further undermining of her credibility. A prime example of this is the fact that reports accompanying the photographs which have been adduced in evidence were not explored or relied upon by the IPAT even though these reports included coverage of the death of a person with the same name as Mr. Y, sharing his political affiliations. The Applicant says nothing on affidavit about these reports. I do not know whether she accepts they relate to Mr. Y or contends they relate to a different person.

34. If this material were to be established as relating to the Applicant’s Mr. Y, then it would suggest that he died following an illness in September, 2024, more than a year after the Applicant arrived in Ireland an event claimed to have been precipitated by his death.

There is no suggestion in the reports exhibited by the Applicant that the person referred to by the same name as Mr. Y was murdered in July, 2023, as the Applicant claims Mr.

Y was.

35. I attach no weight to the foregoing issue or any other issue which scrutiny of the papers may suggest where it was not explored with the Applicant in the decision-making process itself, was not relied upon by the IPAT and the Applicant has not engaged with the photographs or the contents of the newspaper article she exhibits on affidavit. It is entirely possible that there is some explanation which makes sense of matters that does not occur to me from my reading of the papers or having heard counsel in submission regarding these photos. It is appropriate that I should observe, however, that it is the type of issue which I would have expected the Applicant to address on affidavit in grounding these proceedings when exhibiting the material and the engagement in evidence on the question of the photographs is entirely unsatisfactory.

36. Returning then to the factors that were relied upon in the decision-making process. As clear from its decision, the IPAT relied on other identified issues with the Applicant’s credibility including:

(i) her failure to refer in her evidence at the hearing to the fact that her father had received threats to the effect that those making threats knew his daughter was working for Mr. Y;

(ii) her evidence in relation to the involvement of a kidnapper in obtaining false documents to facilitate her arranged departure when she had been kidnapped only the day before following an unplanned trip to a city (albeit her mother’s home) some 570 km from where she had lived with her employer and her father;

(iii)the implausibility of her responses when asked as to why a kidnapper had assisted her to escape;

(iv) her inability to explain where the man who provided her with the false passport got her photograph;

(v) the inconsistency in her evidence in relation to being under observation by her kidnappers for some time; and

(vi) various significant inconsistencies in dates specifically the date she claimed she left South Africa in her original application (1st of July, 2023 – a date which pre-dated the dates she subsequently gave for the date of death of her employer and her father) and the date she claimed to have been kidnapped.

37. Cumulatively, the foregoing factors provide a compelling basis for finding that the Applicant’s claim lacks credibility even without the challenged aspects of the IPAT’s

decision. In addition, it cannot be lost sight of that the Applicant had shown an inability to recognize her claimed former employer of four years from a photograph, a factor which tips the balance very considerably against treating the Applicant’s claim as in any way plausible. It seems to me that considering the number and significance of the adverse credibility findings made in the IPAT decision under challenge, the Applicant has no reasonable prospect of successfully contending that the adverse credibility findings in this case are unsustainable.

38. Were I to conclude that substantial grounds of challenge had been demonstrated, I would have to conclude that these aspects of the credibility findings which I have accepted are weak were sufficiently significant to be capable of calling the remainder of the findings made into question. I am satisfied that weaknesses in the identified elements of the findings are not such as to be capable of being reasonably considered as calling into question the other, multiple, findings which on their own and together demonstrate that an adverse conclusion as to credibility was inevitable in this case. In short, have no doubt whatsoever that an adverse credibility finding would have been made by the IPAT in this case even if no regard was had to those distinct credibility findings which I accept to be weak or weakly justified on the face of the decision.

39. When the identification issue is coupled with striking issues regarding key dates, it is almost inconceivable that the IPAT could have reached any finding other than that the claim lacked credibility. It is recalled that in filling her questionnaire on the 17th of July, 2023, very shortly after arrival in the State and the significant events which form the basis to her claim, the Applicant confirmed in writing that she had been kidnapped on the 1st of July, 2023. Subsequently, at interview, she claimed to have left South Africa on the 12th of July, 2023, only to later claim that she had, in fact, been kidnapped on the 13th of July, 2023, following her father’s death on the 12th of July, 2023.

40. The foregoing obvious inconsistencies in relation to important dates relating to then very recent events are significant on any reckoning. The Applicant explained when questioned in relation to issues with the dates she had given that the identified issues were caused by nervousness and fear. On the facts and circumstances known on the materials before me, this explanation rings very hollow. The dates in question relate to the death of her employer, her father and her own kidnap and flight from her home country, all occurring a short time previously. An inability to recall a chronology which includes the death of a father, a kidnapping and leaving one’s home country within a short number of weeks of those events occurring is seriously damaging to the credibility of the narrative being offered and cannot readily be excused based on nervousness or fear without some special factor substantiated in evidence.

41. On any objective analysis of the Applicant’s narrative, it is impossible to see how a different conclusion might have been reached by the IPAT as to her credibility, even if weak findings turning on whether, when or how the Applicant was informed about the documents by her father and whether, when and how she claimed others became aware that documents had been given to her father were excluded as factors in the decision on credibility. The decision manifestly did not depend on these findings. The finding of a lack of credibility was otherwise more than adequately supported.

42. I am satisfied that the Applicant is not entitled to leave to challenge the decision on the IPAT based on the rejection of the credibility of her claim having regard to the test under s. 5 of the 2000 Act.

43. This brings me to the claim sought to be introduced by way of amendment to the Statement of Grounds, namely, the challenge to the Minister’s refusal of permission to remain. Insofar as this claim is advanced on foot of any frailty with the IPAT decision on the grounds addressed above, then I am satisfied that the Applicant is not entitled to leave to challenge the Minister’s decision as flawed as the fruit of an unsafe IPAT

decision. Separately, however, it is claimed that the Minister failed to engage or reasonably engage with and consider the substance of the further submissions made when determining the issue of humanitarian considerations and permission to remain under s. 49 of the 2015 Act.

44. It is striking that no authority is identified in written submissions or oral argument in support of the proposed amended ground of challenge, but reference is made to the fact that this is a complaint that is being advanced in other challenges to the Minister’s consideration of applications for permission to remain considered under s. 49(7) of the 2015 Act. On behalf of the Applicant reliance is squarely placed on the fact that I have already indicated a wish to have this issue determined in early course because it is arising in a significant number of cases and requires to be clarified to avoid unnecessary litigation, contributing to systemic delays.

45. The failure to develop any legal argument in respect of this additional ground of challenge to the more recent Minister’s decision, other than to rely in a general way on the fact that other challenges have been brought, has the hallmarks of this element of these proceedings being a “piggy-back” complaint which I would not be well-disposed to permit unless a standalone basis for the complaint were demonstrated on the facts of this case. While the argument has not been developed, material relating to the permission to remain application and the Minister’s impugned decision has been put before me on a supplemental affidavit sworn by the Applicant’s solicitor.

46. Despite my misgivings, it is clear from the documentation exhibited by the Applicant’s solicitor in relation to the permission to remain application and refusal that the Minister’s decision in this case is not dissimilar in the approach taken to engagement with submissions in other cases in which leave to proceed by way of judicial review has been granted. Similar reasoning is in evidence to that seen in other leave applications which have come before me (and I believe other judges too) in recent months, albeit in those other cases the grounds of challenge made have been advanced on the basis of more developed argument in reliance on the decision in A. (Albania) v Minister for Justice and Equality [2023] IEHC 692 (Simons J.) and the Court of Appeal in H.K. (Western Sahara) v. Minister for Justice and Equality [2022] IECA 141 (Donnelly J.).

47. Notwithstanding the similarities present with other cases, I still have reservations about granting leave on this ground because it seems to me that the claim may be opportunistic. I say this because of the failure to engage with the arguments or authorities in either written or oral submissions or to point to any feature of the Applicant’s case which might set her apart as a person who should benefit from a discretionary permission to remain having regard to the factors identified in s. 49(3) of the 2015 Act.

48. I have concluded, after some careful deliberation, that this case is not sufficiently different to other cases in which leave has been granted to warrant a disparate approach here and the Applicant’s case should be treated consistently with others. I have expressed reservations in granting leave in other cases coming before me because there are divergences on the facts of cases such that the ultimate prospects of success of an application for permission to remain is not the same in each case when regard is had to the material in evidence. Where the overarching issue is that of process, the correct test to be applied and, in this case, the level of engagement with submissions made and reasoning required in making a lawful decision to refuse permission to remain under s.

49 of the 2015 Act, then I am satisfied I should generally resist dealing with the application on the basis of my assessment of the prospects of obtaining permission to remain from the Minister ultimately as this brings me improperly into the merits of the application.

49. I have concluded that in common with other cases in which I have granted leave on this ground, a reasonable case may be made that the refusal of leave to remain is flawed as to the process adopted in view of the decisions in A. (Albania) v Minister for Justice and Equality [2023] IEHC 692 and H.K. (Western Sahara) v. Minister for Justice and Equality [2022] IECA 141 such that the threshold for leave is met on the face of the

Minister’s decision which it is sought to impugn for lack of proper consideration of the submissions made by and on behalf of the Applicant.

CONCLUSION

50. For the reasons set out above, I will grant leave to seek the relief at d (7) of the Amended Statement of Grounds as placed before the court on the 28th of April, 2025, on the legal grounds set out in the second sentence of e (6). This is the only legal ground of challenge upon which the Applicant meets the threshold for leave under s. 5 of the 2000 Act. Apart from leave to seek consequential relief such as costs as may be appropriate, I otherwise refuse leave on this application.