High Court quashes IAPT decision on credibility findings regarding Taliban capture and future risk analysis.

[2025] IEHC 347

THE HIGH COURT

JUDICIAL REVIEW

[2023/1123JR]

BETWEEN:

J.L

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE

MINISTER FOR JUSTICE

RESPONDENTS

JUDGMENT of Mr. Justice Barry O’Donnell delivered on the 19th day of June, 2025

INTRODUCTION

1. In this application for relief by way of judicial review, the applicant sought to quash a

decision of the first named respondent (the Tribunal) made in an appeal from an International Protection Officer’s refusal to grant the applicant refugee status and subsidiary protection. The decisions were made pursuant to, inter alia, the provisions of the International Protection Act, 2015 (the 2015 Act). As provided for in Section 26 of the 2015 Act, the identity of the applicant is anonymised and any potentially identifying information has been presented in a manner which minimises the potential for the applicant to be identified.

2. The applicant’s underlying case is that he is a national of Afghanistan. He applied for protection in this State on the basis that he would face persecution and/or serious harm if he were to return to Afghanistan. The applicant claimed that he was subject to threats, assault, and kidnapping by the Taliban shortly after that body took over power in August 2021. The primary focus of his concerns was that he had trained as an English teacher, and that his proficiency in English placed him at risk from persecution.

3. As explained below, the claim for protection was rejected at first instance on the ground that it was not accepted that he was from Afghanistan. On appeal, that rejection was affirmed on different grounds to those relied on by the IPO. In the impugned decision the Tribunal explained that it did not accept many of the applicant’s claims. The treatment of the contested facts was the focus of considerable discussion at the hearing before this court.

4. For the reasons explained in this judgment I have found that the decision should be quashed and remitted for further consideration. The applicant is entitled to succeed on the basis that the manner in which the Tribunal made findings about the credibility of his claims to have been captured by the Taliban was unsatisfactory. I have also expressed strong concerns about the analysis of the future risks / fears issue in the impugned decisions. I have found that the other grounds argued by the applicant were not made out.

BACKGROUND

5. The evidence available to the court was in the form of the applicant’s own affidavit, which was sworn on the 4 October 2023. In addition to the account given in his affidavit, the applicant exhibited the materials that were before the Tribunal. As required by the underlying statutory process, this included a questionnaire that was completed by the applicant, the report of an interview conducted by the International Protection Office, the notice of appeal and written submissions made to the Tribunal, and the report of the Tribunal.

6. The applicant stated that he left Afghanistan on the 22 August 2021 with help provided by a family member. He travelled through Iran, Turkey, Bulgaria, Serbia, Italy and France before arriving in this jurisdiction on the 29 March 2022. On the same date, the applicant applied for international protection.

7. The applicant completed the IPO questionnaire on the 18 May 2022, when he was not legally represented. The applicant appended a 25-page handwritten document to the questionnaire, which set out the details of his claim. A further document was also provided which outlined the documentation with which the applicant intended to support his claim.

IPO Questionnaire

8. The IPO questionnaire is a standard form questionnaire which requires the applicant to provide various personal details as well as details relating to their particular application. While the form provides space to complete each question, the applicant is permitted to expand on their responses using supplemental paper. For this purpose, the applicant appended 25-pages addressing several sections of the questionnaire.

9. In the questionnaire, the applicant stated that he was born in May 2000, he identified the village where he was born and provided details about his family. He stated that his father had died a number of years previously, he was an only child, and he identified his mother as his dependent and that he had a fear that she would also be subject to persecution.

10. The applicant provided details of his education, including the identity of the primary and secondary schools that he attended. His first language is Pashto, but he is proficient in English. He stated that he attended a professional English language institute (the Institute), obtaining an English language diploma. He then undertook a teacher training course in the Institute between January and April 2021. He stated that he was employed by the Institute as an English teacher between April and August 2021. He noted that he had never applied for a passport as the need for one had never arisen.

11. In terms of documents, he stated that he left Afghanistan urgently and did not bring any documents; the documents that he referred to had been sent on to him later by his family. He stated that his only reason for seeking protection was his fear of the Taliban.

12. In his handwritten document – which was in English - the applicant provided details on the matters that had to be addressed in the questionnaire. After explaining his role in the English language institute, the applicant described that the Taliban took over power in August 2021. The applicant provided a relatively large amount of detail for each question to be addressed. In response to a prompt at Section 4.1 of the questionnaire which is headed “Please tell us why you are applying for International Protection in Ireland”, the applicant provided a 9-page response, which can be summarised as follows.

a. On the 8 August 2021, the applicant was at a meeting in the Institute when an armed group of eight people entered seeking the director. They demanded that the director close the Institute, or he would be killed. They warned the staff to leave their jobs, or they too would be killed. He returned to the Institute the next day, and the director said that he was not to worry as the incident had been reported to the police and authorities. b. On the evening of the 13 August 2021, he was approached by a group of armed persons who said that they would not accept English language and culture in the Islamic Emirates of Afghanistan. The applicant states that he was assaulted violently and warned not to return to the Institute. The applicant decided to leave the Institute. The next day, he was informed that the director had been shot by the Taliban.

c. On the 18 August 2021, the same group of armed men came to his home and forced him to come with them to meet a named person. He was blindfolded and restrained and brought away in a jeep. He arrived in what he thought was some form of government building which was occupied by armed men. He was brought to meet a man that he thought was the leader of the group. He was informed that he was right to have left the Institute and told that he had five days to decide whether to join the group. He was told that if he did not join the group he and his mother would be killed. He was photographed and his personal details were taken, and he was then returned home.

d. On the 19 August 2021, having discussed matters with his mother, they went to his mother’s cousin, who he described as his uncle. He was advised to leave Afghanistan, and arrangements were made to leave with agents because the borders were closed. His mother stated that she would move to a different village.

13. The applicant stated that when he was in Turkey, he contacted his uncle who told him that the Taliban was still searching for him and that he did not know his mother’s whereabouts. The applicant clarified that he was in fear of the Taliban and did not agree with their approach to Islam. He provided a very detailed account of his departure from Afghanistan and his movements to Ireland. He also provided a number of documents that will be referred to below.

IPO Decision

14. The applicant was interviewed in accordance with section 35 of the 2015 Act on the 21 November 2022. The interview consisted of a series of questions addressed to the applicant concerning, inter alia, the applicant’s personal information and family background, the reasons why the applicant applied for international protection and particular fears the applicant had about returning to Afghanistan, as well as a series of questions about the geography of the local region in Afghanistan.

15. The IPO rejected the applicant’s claim for protection. The decision summarised the account given by the applicant and noted the documents that had been submitted. The decision was grounded on one primary finding: the IPO was not satisfied that the applicant was a national of Afghanistan. This was based, inter alia, on his apparent lack of knowledge about the geography of his asserted area of origin, the inability of the IPO to verify the authenticity of his documents, and questions about the authenticity of some of the documents.

16. As the IPO was not satisfied as to the nationality of the applicant, the first instance

decision did not go on to address any of the further questions elements of the claim for international protection. The sections headed “Credibility”, “Refugee Status Determination Analysis” and “Subsidiary Protection Determination Analysis” are all marked “N/A” and not considered further.

The appeal to the Tribunal

17. The applicant completed a notice of appeal on the 27 March 2023, and written submissions were provided by his solicitors on the 23 May 2023. The grounds of appeal were directed to the question of the applicant’s ability to describe his local area accurately, and the assessment of his account of his interactions with the Taliban. The applicant referred to country of origin information from Amnesty describing the position in Afghanistan in 2022. This included reports of extra judicial executions, arbitrary arrests, torture and enforced disappearance of perceived opponents. The extract from the report showed that there were considerable restrictions on freedoms of expression, association and assembly, and that persons suspected of violating social norms were being targeted. Government structures and the judicial system were dismantled and converted into a sharia system.

18. The Tribunal hearing was conducted remotely on the 4 August 2023; the applicant was present with his solicitor and an interpreter was in attendance. On the 29 August 2023, the Tribunal wrote to the applicant’s solicitor drawing attention to two further sources of country of origin information that would be considered: (i) UNHCR Guidance Note from the 1 February 2023 on the International Protection Needs of People Fleeing Afghanistan, and (ii) EUAA Country Guidance on Afghanistan 2023. The applicant was afforded five days to comment in writing on the additional reports, but he did not take up that opportunity.

19. The decision of the Tribunal was dated the 7 September 2023 and was communicated to the applicant by letter of the same date.

THE IPAT DECISION

20. The Tribunal set out the basic factual contentions made by the applicant and the documents that he had submitted.

21. In the first instance, differing from the IPO decision, the Tribunal accepted that the applicant was a national of Afghanistan. As noted by counsel for the applicant, this had the effects of overturning the primary decision of the IPO and of meaning that the hearing before the Tribunal was the first substantial consideration of the substance of his claims.

22. The Tribunal’s report was structured by analysis of various elements within his claim.

The applicant’s claim to be an English teacher and his documents

23. The Tribunal first considered the applicant’s claims that he was an English teacher. On that issue, the Tribunal rejected the applicant’s account of events, finding that the applicant had failed to establish that he worked as an English teacher. To reach that finding, the Tribunal noted that it had not located – and the applicant did not identify - any online reference to the Institute. In terms of the documentation from the applicant, the Tribunal noted that the documentation asserted to have come from the Institute did not bear any contact information. The Tribunal noted that at the IPO interview the applicant was asked how individuals are supposed to make inquiries with the Institute if there is no contact information available or website to consult. In response, the applicant stated that people would simply call into the Institute if required. The Tribunal then conducted an analysis of the documents submitted by the applicant.

24. The first document considered by the Tribunal was the “Teaching Training Certificate”. The Tribunal noted that, on its face, the certificate confirms the applicant completed the course between the 7 January 2021 and the 6 April 2021. However, a stamp on the document from Afghanistan’s Ministry of Foreign Affairs was dated the 5 February 2021, before the applicant completed the course. The applicant attributed this discrepancy to a stamping mistake. He stated that the stamp was sought from the Ministry of Foreign Affairs because at the time he was considering going to Pakistan to study and that the Ministry stamped documents for those intending to travel abroad.

25. In relation to a letter entitled “Employment Letter”, it was put to the applicant that there were grammatical errors contained within the document. The applicant was provided with an opportunity to comment on each particular error, and he responded that the letter was written by a receptionist who would not be educated to a high level. The Tribunal further put to the applicant that the letter was also signed by the Director of the Institute, the Academic Manager and the Minister for Education. As such, it was reasonable to expect that there would be no such errors. The Tribunal considered that the applicant did not provide a reasonable explanation to this except to say the receptionist would not be educated to a high level.

26. Several issues relating to the applicant’s birth certificate were identified. It was noted that the applicant’s mother’s name was spelled differently on the birth certificate to the spelling the provided to the Tribunal. The Tribunal noted that information contained within the document contradicted itself, in relation to the registration number, volume and page number. The applicant in reply noted that he did not know why such discrepancies were present.

27. Issues relating to the stamps on the birth certificate were identified as well as discrepancies in the chronology of events provided by the applicant. The Tribunal noted that the document was stamped by the Ministry of Justice and questioned how this occurred. The applicant stated that the certificate was sent by the National Identity Bureau to the Ministry of Justice in 2020 along with other documents at the end of 2020. The applicant also noted that the stamp was a “clearance stamp”, which the applicant stated meant that the person has no criminal record. The Tribunal put to the applicant that the stamp was dated 2018 to which the applicant responded he did not know why this was the case. A further stamp from the Ministry of Foreign Affairs on the birth certificate was noted by the Tribunal and the applicant was asked when he had the document stamped by this Ministry. The applicant stated he obtained this and all other documents stamped at the end of 2020. The date of the stamp was February 2021 and when this was put to the applicant, he stated that he brought the document to the Ministry on the 21 February 2021.

28. A further document entitled “Ministry of Interior Affairs Official Directorate Population Registration” was considered by the Tribunal. The applicant was asked why there was a number of stamps on the documents, but no stamps from the Ministry of Interior Affairs, who issued the document. The applicant was unable to provide an explanation to this. A particular stamp from a translation centre was noted by the Tribunal. In relation to this stamp, the Tribunal noted that the word “translation” was misspelled, and again this could not be explained by the applicant.

29. Regarding the applicant’s Diploma from the Institute, the Tribunal noted that bore the same date as the stamp on the Teacher Training Certificate, the 5 February 2021. In response, the applicant stated that he got all the documents stamped on the same day. The Tribunal noted that the applicant had yet to complete his teacher training course by the 5 February 2021 and therefore “it made no sense that it was stamped on this date”. The applicant responded that it was a clerical error, as he brought all documents to the Ministry of Foreign Affairs on the same date.

30. The Tribunal pointed out a series of discrepancies in the chronology of events provided by the applicant. The applicant stated that he brought all documents together to the National Identity Bureau and that the Bureau sent the documents on for stamping to the Ministry of Justice and of Foreign Affairs. The Tribunal pointed out the following: a. The applicant previously stated that he brought all documents to the Ministry of Foreign Affairs on the 21 February 2021. b. The applicant also claimed to have brought documents to the Ministry of Justice at the end of 2020, and that this was now contradicted by his claim that the documents were brought to the Bureau in 2021 and sent on to the Ministries.

31. In response, the applicant reiterated that he brought the documents to the Bureau and that they were sent on from there. No particular explanation was provided for the discrepancy concerning the claim that he brought the documents to the Ministry of Justice in 2020 which is contradicted by his later claim to have brought the documents to the Bureau in February 2021.

32. Having considered the documents in turn, the Tribunal concluded their consideration of the documents issue by noting:- “…[A] number of significant issues arose in relation to the contents of these documents and how they came to be stamped by the various Ministries. The Tribunal does not accept that the Appellant offered reasonable explanations where inconsistencies were put to him. …Given the number of issues, as outlined above, and the lack of explanations for same, the Tribunal does not find these documents supportive of the Appellant’s claim to have been a tutor in the Professional English Language Institute.”

33. Counsel for the applicant made the point that it was not clear why the Tribunal at this instance did not consider the student and teacher identity cards at this point of the decision, as part of the documentation submitted by the applicant. It can be noted that the Tribunal first considered the documentation as outlined above, before considering other matters of the applicant’s claim, and only afterwards returning to consider the student and teacher cards as a distinct issue from “documentation”.

34. In relation to the student and teacher ID cards, the Tribunal noted that, while there were no errors on the face of these documents, such cards are capable of being manufactured for the purpose of a claim. The Tribunal concluded on these ID cards by stating: “Given the credibility issues as outlined above, the Tribunal does not find that the Appellant has established his general credibility such that he can be afforded the benefit of the doubt in relation to the submission of these cards.”

Capture by the Taliban

35. The Tribunal also did not accept the applicant’s evidence in relation to his capture by the Taliban. In that regard, the Tribunal outlined the applicant’s narrative in relation to his capture, which has been summarised above. The Tribunal asked why the applicant believed he was given a period of five days to make a decision to join the Taliban. The applicant stated that it was the policy of the Taliban to give people some time to consider their position, and the options are to work with the Taliban or to die. The Tribunal put it to the applicant that by providing a period in which to consider joining the Taliban, they were providing a window of opportunity for people to escape. The applicant asserted that the Taliban did not think people would escape and that they would rather that individuals work with them through their own will.

36. The Tribunal rejected the applicant’s evidence concerning his capture, finding: “When the choice is either to work for the Taliban or die, it is clear that the Taliban are not concerned about a person’s will or desire.…[I]t is not plausible that they would have released the Appellant in order for him to make the choice. The Tribunal does not accept as credible that having kidnapped the Appellant and having outlined the desire that he work for the Taliban that they would then release him to enable him to make a decision about their proposal thereby providing him with the opportunity to escape.”

37. The Tribunal made brief reference to the Country of Origin Information (the COI) available: “…[T]there is no objective information before the Tribunal to this effect and indeed the COI referenced in the Appellant’s written submissions highlight the fact that the Taliban carry out extrajudicial killings and public hangings of those who are seen to oppose them.”

38. The Tribunal therefore rejected the applicant’s evidence in relation to his capture by the Taliban and in relation to the 5-day period with which the applicant was said to be provided to consider joining the Taliban.

The Applicant’s Mother

39. The Tribunal’s findings in relation to the applicant’s claim regarding his mother are quite terse. It can be noted that the applicant identified his mother as a dependent on the international protection application and provided reasons why he feared persecution and serious harm directed at his mother. In summary, the applicant feared that his mother would be subject to arrest or torture as he did not comply with the Taliban’s directions.

40. The Tribunal found that the applicant’s evidence in relation to his mother’s circumstances was “confused and lacking in coherency”. The Tribunal further found that “the Appellant has not provided clear and cogent evidence in this regard and any suggestion that his mother has been taken or harmed by the Taliban is based on speculation.”

41. In reaching this finding, the Tribunal put several questions to the applicant. First, the applicant was asked why his mother did not flee with him given that the Taliban’s threat to kill was also directed toward the mother. Second, the applicant was asked why he could not have relocated within Afghanistan with his mother if that was what the mother intended to do in any event.

42. The applicant stated that he was unsure where his mother was and also was unsure if she was in Taliban custody. The applicant reported that he heard from his uncle that his mother was no longer in the family home. The applicant further stated that his mother had problems with her joints, and that was why she did not intend to go with the applicant and that she would go elsewhere to hide from the Taliban. He stated this his mother did not think she would be harmed if she was not in the home as she was not the primary target of the Taliban. In relation to this, the applicant was asked if this was the case, why had he stated in his interview that he feared for his and for his mother’s life. In response the applicant stated that he did not know where she was at that point.

Well-Founded Fear and Serious Harm

43. Having reached their determinations on the facts advanced by the applicant, the Tribunal went on to consider the issues of well-founded fear and serious harm. In summary, the Tribunal did not accept that there was anything in the applicant’s profile which would give rise to a claim of international protection on this ground alone. The Tribunal further found that the applicant did not fall into a risk profile that would place him at a greater need of protection under the article 15(c) of Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the 2004 Directive).

Well-Founded Fear

44. The Tribunal’s analysis on the issue of well-founded fear focused on whether the applicant could be said to be “westernised”, and as such at risk of persecution. The Tribunal concluded that whilst the applicant was clearly proficient in English, this did not establish a well-founded fear of persecution.

45. On this basis, the Tribunal affirmed the decision of the IPO that the applicant should not be given a refugee declaration.

Serious Harm

46. The Tribunal first outlined the relevant provisions underpinning their consideration on the issue of whether the applicant would face a real risk of serious harm. For that purpose, the Tribunal set out s. 2 of the International Protection Act 2015, which implements Article 15 of the 2004 Directive. The relevant provision is as follows:

““serious harm” means—

(a) death penalty or execution,

(b) torture or inhuman or degrading treatment or punishment of a person in his or her country of origin, or

(c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in a situation of international or internal armed conflict;”

47. The Tribunal also considered relevant the COI available to it and drew particular reference to the following excerpt from the “EUAA Country Guidance Afghanistan 2023”:- Given the interpretation of the concept of “internal armed conflict” by the CJEU, and based on the COI, it can be concluded that two main parallel internal armed conflicts, in the meaning of Article 15(c) [of the 2004 Directive], take place in the territory of Afghanistan… … No province in Afghanistan is currently assessed to reach such an exceptionally high level of violence that “mere presence” on the territory would be considered sufficient in order to establish a real risk of serious harm under Article 15(c) [of the 2004 Directive].

48. Addressing in particular the region of Afghanistan in which the applicant resided, the EUAA Country Guidance noted: Looking at the indicators, it can be concluded that indiscriminate violence is taking place in the province of Kabul, however not at a high level. Moreover, a significant proportion of the civilian fatalities in the province is considered to be the result of security incidents of a targeted nature. Therefore, a high level of individual elements is required in order to substantiate subsidiary protection needs under Article 15(c).

49. Having considered the above passages, the Tribunal considered the position of the applicant as a young able-bodied and educated man with a proficiency in English (notwithstanding that the Tribunal rejected his evidence that the applicant worked as an English teacher). The Tribunal noted that the applicant was from a large city and, without evidence that he could not access the city itself, it must be considered that the applicant would have access to some employment opportunities. The Tribunal also considered that the applicant had familial support by way of his uncle, who assisted in his journey to this jurisdiction and in supplying papers thereafter. In light of these considerations, the Tribunal found that it could not be said that the applicant fell into a risk profile that would place the applicant at greater need of protection under Article 15(c) of the 2004 Directive.

50. On the basis of this conclusion, the Tribunal found on the balance of probabilities that the applicant’s claim did not provide a basis for believing that should the applicant be returned, he would face a serious and individual threat to his life by reason of indiscriminate violence.

51. The Tribunal concluded that the applicant was not entitled to subsidiary protection, and affirmed the findings that the applicant should not be given a refugee declaration or a subsidiary protection declaration.

GROUNDS OF REVIEW

52. The applicant made an initial ex parte application for leave to apply for judicial review on the 9 October 2023 and was granted leave to challenge the decision by Order dated the 23 October 2023. The applicant was granted leave to apply for judicial review on a series of eight detailed legal grounds that I have attempted to summarise below.

53. First, there was a catch all ground. I have treated that ground as a general framing of the subsequent more precisely pleaded grounds. The applicant pleaded that the Tribunal erred by failing to assess the applicant’s claim by reference to its duty to provide reasons, by failing to act in accordance with s. 28 (3)(4)(6) or (7) of the 2015 Act, by failing to assess credibility lawfully, by failing to take into account all relevant considerations and/or evidence provided in support of the applicant’s application, by taking into account irrelevant considerations and/or failed to reason adequately and/or by acting irrationally or unreasonably in making findings against the Applicant.

54. Second, and the first precise particularised ground, the applicant pleaded that the Tribunal failed to provide adequate or rational reasons in its treatment of the substance of the applicant’s claims, and/or failed to take into account material aspects of his claim pursuant to s.28 of the 2015 Act, particularly in respect of his account of: a. The Taliban’s visit to the applicant’s place of work on the 8 August 2021;

b. The assault on the applicant on the 13 August 2021; c. The report that the applicant’s colleagues had been assaulted and/or killed on the 14 August 2021.

55. Third, the applicant contended that the Tribunal acted unlawfully and failed to provide reasons in its treatment of the applicant’s claim of having been an English teacher in Afghanistan. The Tribunal did not address the evidence from the applicant of his having studied English, and then worked as an English teacher in Afghanistan. The Tribunal erred by referring only to the issues regarding the documents relied upon by the applicant, and by not assessing all his evidence “in the round”.

56. Fourth, it was contended that the Tribunal acted unlawfully and/or unreasonably or alternatively did not provide adequate reasons in rejecting as not credible the applicant’s claim of being given 5 days to decide to join the Taliban and his being subsequently released. This was so, particularly in light of the country of origin reports that such threats are issued by the Taliban with resulting punishment at a later stage, and in differing severities upon individuals who disagree with and/or disobey Taliban demands.

57. Fifth, the applicant pleaded that the Tribunal acted unlawfully in finding that applicant was not at risk of being persecuted as a perceived westernised individual if returned to Afghanistan. This was said to have been particularly so in light of the finding that the applicant spoke proficient English. Reference was made to the EUAA report as being supportive of such harm occurring if the applicant were to return to Afghanistan. In that regard it was said that the Tribunal failed to consider all material factors in assessing this aspect of the applicant’s claim, and/or failed to provide adequate reasons as to why the Applicant would not be at risk of such persecution if returned to Afghanistan.

58. Sixth, the claim was made that the Tribunal acted unlawfully in its reliance on country of origin information utilised in the impugned decision and/or placed selective reliance on one piece of country of origin information over others unlawfully. In particular the Tribunal: a. drew conclusions which were incorrect in fact and/or which did not flow from the COI before it; b. failed to provide any reasons or refer to the Amnesty International 2022 Report which supported the applicant’s claim, which was not included in the list of documents considered in the impugned decision, despite being referred to in the applicant’s submissions; c. failed to provide any reasons or refer to the aspects of the EUAA Country Guidance Afghanistan Report, 2023 which supported the applicant’s claim and only referred to the parts of the report that referred to indiscriminate violence.

59. Seventh, the applicant pleaded that the Tribunal misapplied section 28(7) of the 2015 Act and rejected the claims of the Applicant on an unlawfully speculative basis, and in particular: a. failed to consider the internal consistency of the applicant’s claim before moving on to external evidence, including country reports, available documentation and/or any reasons as to why documentation could not be provided;

b. failed to provide an objective basis for finding that the student or teacher identification cards provided by the applicant in support of his claim were capable of being manufactured for the purpose of the claim; c. incorrectly found that the benefit of the doubt could not be applied to the applicant where the applicant was found not to have established his general credibility.

60. Eighth and finally, it was claimed for the reasons set in the preceding grounds that the Tribunal acted unlawfully in finding that that there was no evidence to suggest the applicant would face a real risk of suffering serious harm and thus refusing his application for subsidiary protection.

The position of the respondents

61. The respondents filed a statement of opposition on the 25 January 2025. Preliminary points were made that the applicant’s proceedings amounted simply to disagreement with the impugned decision and that the proceedings were brought out of time. Without prejudice to those points, the respondents pleaded that the applicant had failed to explain how it was alleged that the Tribunal had not engaged in a proper assessment of the applicant’s credibility. The respondents contested the proposition that it was necessary for the Tribunal to engage in a narrative or point by point discussion of the applicant’s claims. The respondents asserted that the Tribunal’s decision was adequately reasoned, and that the decision reached, particularly regarding the applicant’s claim to have been an English teacher in the Institute, was within the range of decisions open to it.

62. The respondents noted that the EUAA report was drawn to the attention of the applicant prior to the hearing and that the applicant made no observations on that report. Having failed to take the opportunity to make submissions or comments on the report it was not open to the applicant to pursue arguments at this point by reference to matters that were not raised before the Tribunal. The Tribunal, according to the respondents, was not obliged to consider and reject individually all available country of origin information. Finally, the respondents contended that if there were errors in the decision they were de minimis and not a basis for quashing the

decision, which fell to be considered in the round.

THE ARGUMENTS

63. The applicant reduced the pleaded grounds to five net questions: a. Is an extension of time required? If so are there good and sufficient reasons for an extension of time? b. Were the findings of the Tribunal in relation to the documents and the question of whether the applicant worked as an English tutor lawful? c. Were the findings of the Tribunal in relation to the applicant’s capture by the Taliban lawful? d. Were the findings of the Tribunal in relation to the applicant’s mother lawful? e. Was the way in which the Tribunal dealt with the question of whether the applicant was danger as a result of being “Westernised” lawful?

64. The respondents contended that the applicant’s presentation of the questions did not reflect the pleaded grounds. They presented a reformulation of the questions as more accurately reflecting the permitted grounds, albeit subject to the caveat that leave had not been sought to challenge the findings regarding the applicant’s mother.

65. The competing formulations of the questions, in my view, all were directed to essentially the same tasks, albeit that the respondents’ suggestions involved a closer or more forensic approach. Hence, I will proceed on the basis that the applicant’s formulation of the questions reflected the issues that require to be determined while at the same time bearing in mind the manner in which the respondents suggested that the matters should be approached. Moreover, by the time the matter came on for hearing and having regard to the arguments that were made it seems to me that to a large extent the differences of approach fell away.

66. It would fair to observe that while the applicant did not resile from any of the arguments made in the written submissions, the primary focus of the argument was on the manner in which the Tribunal approached the assessment of the credibility of the applicant in relation to his account of being arrested and detained by the group that he believed to be made up of members of the Taliban. As set out below, I have concluded that the Tribunal erred in this aspect of the

decision making process and that the error was sufficiently material to vitiate the overall

decision and warrant remittal for a further hearing. Nevertheless, to ensure that the arguments of the parties are addressed I will deal with the other issues that were argued, albeit relatively briefly. Before considering the specific issues there are certain preliminary and general matters to be addressed.

THE ISSUES RELATING TO THE APPLICANT’S MOTHER

67. First, having considered the grounds upon which leave was granted, as set out above, there was an issue addressed at the hearing regarding the claims made on behalf of the applicant in written submissions regarding the part of the impugned decision that concerned his mother. The respondents took the view that this issue was not pleaded, and it was impermissible for the applicant to raise the issue.

68. At the hearing of the application counsel for the applicant made two arguments. First, it was submitted that the pleadings, viewed in the round, were sufficiently broad to include the claims regarding the applicant’s mother. Second, alternatively, it was argued that if there was a doubt about that, the applicant was applying to amend the statement of grounds by including in legal ground (1), after the words in the second sentence “Throughout the impugned decision” the words “including but not limited to his claim in relation to his mother dealt with at paragraph [4.11] of the decision under review”.

69. Having regard to the need for clarity and because it was necessary to ensure that any matters decided by the court should be properly pleaded, the court decided to deal with the application to amend at the hearing. The respondents formally objected to the amendment application. I concluded that the amendment should be permitted for the following reasons.

70. There is a general need to ensure clarity about the grounds upon which an application for judicial review has been permitted, and the court should not make decisions on grounds that were not pleaded and permitted; see AP v DPP [2011] 1 I.R. 729. The application for leave did not include any specific reference to the position of the applicant’s mother. While the first legal ground was framed in very broad terms that arguably could encompass the argument that the treatment of the issues relating to the applicant’s mother in the impugned decision, I do not consider that this was sufficient to introduce the issue. Properly approached, the first legal ground should be treated as a very general summary of the overall case being made by the applicant and the subsequent grounds constitute particulars of that general case directed to the specific elements in the decision that the applicant wished to challenge. Where the issues relating to the applicant’s mother were the subject of separate analysis within the impugned

decision and the applicant wished to challenge that analysis as unreasonable it ought to have been the subject of at least some express pleading.

71. Accordingly, there was, at the very least, significant uncertainty about whether the claims concerning the applicant’s mother are encompassed in the grant of leave. The authorities permit amendments to be made at trial, albeit that this should not be a regular or normal occurrence. As noted by Phelan J. in N.Z. and Others v. Minister for Justice [2023] IEHC 545, having regard to B.W. v. Refugee Appeals Tribunal (No.1) [2015] IEHC 725 and Keegan v. Garda Siochana Ombudsman Commission [2012] 2 IR 570, the basic criteria are that leave will be permitted to amend to include a new point if the point is arguable, if there is an adequate explanation for the point not having been pleaded, and if the other party was not unfairly or irremediably prejudiced.

72. It seemed to me that the applicant should be permitted to make the amendments sought. I had no doubt that leave would have granted initially in the terms that included the proposed amendment, and the point clearly reaches the threshold of being arguable. The explanation was that the failure to include express reference to the applicant’s mother was due to legal error, and I was satisfied to accept that explanation. Significantly, the respondents had little or no difficulty addressing the issue both in their written and oral submissions, although the arguments were made on the clear basis that it was without prejudice to their contention that the matter was not pleaded. In those premises I permitted the amendment to be made in the course of the hearing.

GENERALLY APPLICABLE PRINCIPLES

73. Before addressing the substantive arguments, it is important to note that the parties each identified general propositions that were said to be of general guidance for this case.

74. First, contrary to the applicant’s submissions, the respondents assert this is not a case where strictly it can be said that the effect of the decision under challenge is to send the applicant back to Afghanistan. Properly understood the decision relates only to the claims for refugee status and subsidiary protection. The 2015 Act provides at section 49 that an applicant who is the subject of a recommendation that he should not be given refugee status or subsidiary protection may nonetheless request the Minister to give him permission to remain. Hence, if the impugned decision is upheld the applicant will have a further opportunity to have his situation considered by the Minister. That being said, the applicant points out that, normally, the permission to remain process does not look behind a decision of a Tribunal, referring to Kouyape v. Minister for Justice [2011] 2 I.R. 1. Hence, while strictly speaking the impugned

decision does not automatically lead to the applicant’s return to Afghanistan, the reality is that the prospects of such a return occurring are certainly increased substantially.

75. Second, the respondents highlighted the limited role of the High Court in determining a challenge by way of judicial review. In that regard, the respondents identify a number of wellestablished general points that operate in cases such as the present. a. The Oireachtas has tasked the IPO and Tribunal with determining the factual issues. b. The High Court should not substitute its views for those found by the Tribunal; it is a matter for the Tribunal to weigh credibility. c. The role of the High Court is to consider the lawfulness of the decision and to determine whether the decision made was one that was lawfully open to the decision maker. d. In carrying out that task, the court should view matters in the round and avoid over-parsing or over-analysing a decision. e. The Tribunal is not required to set out each and every element in an applicant’s case and address them point by point. f. Finally, as a general proposition, the applicant should not be permitted to advance arguments which could have been made but were not made before the Tribunal. In that regard, Burns J. made the important point at para. 15 in LP v. IPAT [2021] IEHC 35, that a “decision is under review arising from what was at issue: it is not under review because of the consequences of the decision”.

76. I accept those general propositions, although it is important to recall that the process of considering a decision on international protection engages a somewhat different approach to that required in a review of other administrative processes. In particular there is a need for a heightened scrutiny, which was described by Charleton J. in AAA v Minister for Justice [2017] IESC 80 as follows: “26. In NM, Hogan J. held that post-Meadows, judicial review was sufficiently flexible to accommodate the “thorough review” requirements of Diouf, even if the earlier “no evidence” standard required by O’Keeffe would not …”

77. In a case such as the present, where a fundamental feature of the impugned decision was a rejection of the credibility of the applicant’s account, the authorities make clear that the observations of Cooke J. in IR v. Minister for Justice [2015] 4 IR 144 remain the touchstone for reviewing such decisions. As noted by Cooke J., the role of the High Court is confined to ensuring that the process by which such conclusions have been reached is legally sound and not vitiated by any material error of law. However, as noted by Cooke J., and as discussed in more detail below the assessment of credibility must be sufficiently cogent to stand up to review.

78. In RA v Refugee Appeals Tribunal & Ors [2017] IECA 297, Hogan J. added to that proposition by highlighting that in NM (DRC) v. Minister for Justice [2016] IECA 217, the Court of Appeal had observed that the effective remedy requirement under Article 39 of the Procedures Directive (Council Directive 2005/85/EC) as interpreted by the Court of Justice in Case C-69/10 Diouf EU:C:2011:54: “ … imposes only one – albeit, critical – requirement, namely, that the remedy in question must remain an effective one. As Diouf itself makes clear, this means that the supervisory jurisdiction of the High Court must be ample enough to ensure that “the reasons which led the competent authority to reject the application for asylum as unfounded … may be the subject of a thorough review by the national court.”

79. The final general proposition that applies to the consideration of the issues in this case arises from the decision of the CJEU in Case C-756/21, X v IPAT. That decision was in a reference for a preliminary ruling that had been made by the High Court where a question arose regarding the duty of cooperation in Article 4(1) of Directive 2004/83. Of note for this part of the judgment, the Court reiterated at para 50 of the ruling that: “ … the assessment as to whether or not the established circumstances constitute such a threat that the person concerned may reasonably fear, in the light of his individual situation, that he will in fact be subjected to acts of persecution must, in all cases, be carried out with vigilance and care, since what are at issue are issues relating to the integrity of the person and to individual liberties, issues which relate to the fundamental values of the European Union …”

80. In the ruling, the CJEU found that the duty of cooperation required the determining authority to obtain up to date information regarding all the relevant facts as regards the general situation prevailing in the country of origin of an applicant for international protection. The claim in these proceedings is not that there was a breach of the duty of cooperation. In fact, clearly and properly the Tribunal itself drew the applicant’s attention to up to date UNHCR and EUAA materials on Afghanistan. However, there were claims that insufficient account was taken of country of origin information in the decision making process. It seems to me that the overall thrust of the X v. IPAT ruling is predicated on the importance of considering up to date country of origin information, otherwise there would be little point in emphasising the duty to obtain that information.

81. I will now turn to the specific issues raised by the applicant.

EXTENSION OF TIME

82. The first question is whether an extension of time is required. Here, the Oireachtas has made clear in section 5(2) of the Illegal Immigrants (Trafficking) Act 2000, as amended, that a challenge to a decision of the Tribunal must “… be made within the period of 28 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made …”

83. In addition, section 46(6) of the 2015 Act requires that a decision of the type impugned here must be communicated by the Tribunal “to the applicant concerned and his or her legal representative (if known)…”. Section 5 of the 2015 Act provides for a variety of methods to serve notices or documents. Where service is by registered post, it is deemed to have been served on or given to the person concerned on the third working day after the day on which it was sent, whereas electronic delivery is deemed to have been made upon confirmation of delivery.

84. Here, the decision was made on the 7 September 2023. There were two letters of notification, dated the 7 and the 11 September 2023 directed to the applicant. It is not clear from the papers filed in this case whether the letter of notification to the applicant was delivered by registered post or otherwise. The applicant’s solicitors were notified of the decision on the

11 September 2023 by email. The proceedings were filed on the 5 October 2023 and the application was opened on the 9 October 2023. As the relevant rules regarding the date when judicial review proceedings are deemed to have commenced had not been changed at that point in time, the proceedings must be deemed to have commenced on the 9 October 2023.

85. The question of compliance with time periods was addressed on behalf of the applicant in an affidavit sworn by his solicitor. That affidavit explains that his office received an email notification on Monday the 11 September 2023. The solicitor took instructions from the applicant and then provided papers to counsel for a preliminary opinion on the 14 September, and received a preliminary view on the same day. Further advice was sought and additional papers were provided to counsel over the course of the following two weeks and on Wednesday the 4 October 2023 the applicant swore his grounding affidavit. The papers were filed in the Central Office on the 5 October 2023, and the application was opened on Monday the 9 October 2023.

86. The applicant submits that the date for notification should be fixed as the 11 September 2023. The respondents submit that the date for notification should be the 7 September 2023. In all the circumstances I am not satisfied that the respondents have shown that the applicant was notified on the 7 September 2023. The delivery of a notification by email on the 11 September 2023 clearly was an effective notification, which would support the applicant’s view that the proceedings were opened within the necessary statutory period.

87. In case I am wrong about that, I am satisfied in any event that there is good and sufficient reason to permit a short extension of time in this case. It is clear that the applicant and his legal representatives moved promptly to ensure that the applicant was advised, instructions obtained, and steps taken to have the necessary papers prepared and filed in the Central Office. Insofar as it is arguable that the application was formally opened for the purposes of stopping time later than required, this involved a very short number of days. Where the statutory time limits are so tight, and where the matters at issue in the proceedings are critically important to the applicant, and there was no evidence of prejudice adduced by the respondents, the balance of justice strongly favours permitting an extension of time.

THE SUBSTANTIVE ISSUES

The finding that the applicant was not employed as an English teacher

88. The first substantive question raised by the applicant’s pleading related to the finding that the applicant was not employed as an English teacher in the Institute. That finding relied on the treatment by the Tribunal of the documentation submitted by the applicant. It can be recalled that in the relevant part of the decision the Tribunal identified a number of issues that called into question the reliability of the documents. In oral submissions the applicant accepted that there were issues in relation to those documents. However, the applicant submitted that the Tribunal had not given proper consideration to the ID cards provided by the applicant, save to note that they were capable of being manufactured and could not be verified.

89. The respondents argued that there were two aspects to the manner in which the credibility of the applicant’s claim to have been an English teacher were treated. First, there was the consideration of the contents of documents in question, and, second, there was the question of their authentication. The respondents asserted that the Tribunal acted lawfully in both regards such that the finding should be allowed to stand.

90. The proper approach to the consideration of credibility by reference to documentation was addressed in detail by Phelan J. in M.H. v. IPAT [2023] IEHC 372. At para. 93 of that judgment Phelan J. noted the “overriding duty to consider documents submitted and not to reject them without further scrutiny simply because the account given is implausible or not believed.”. In that case, the court was clear that it was improper to start from a general finding that an account was not credible, and, on that basis, to decide that little weight should be attached to the documents. There, while the Tribunal had considered some documents it appeared clear that certain ostensibly relevant documents were discounted without an assessment of their contents because of the Tribunal’s concerns about the general credibility of the applicant.

91. I am satisfied that the Tribunal did not engage in the type of erroneous analysis that was criticised in M.H.. As set out above, the Tribunal clearly considered the documents in their own right and by reference to their contents and markings. The Tribunal found that the documents were unreliable because of discrepancies in dates and stamps and similar matters and where there was no satisfactory explanation for those discrepancies. Where the analysis was directed to the individual documents and explanations were sought for material discrepancies, it cannot be said that the Tribunal failed to give the documents proper consideration.

92. In relation to the ID documents, the simple point made by the Tribunal was that there was no way to verify their authenticity. This distinguishes these documents from certain of the documents that fell to be considered in M.H. In that case, it was clear that some of the documents could potentially have been verified or authenticated, such as newspaper reports and certain correspondence.

93. In this case, the Tribunal did not find that the documents were manufactured or falsified in some sense, rather the decision was that very little weight could be attached to them because of the difficulties with independent verification. That decision reflected, as I read the Tribunal report, the difficulties that already had been identified with establishing the credibility of the applicant’s account of being an English teacher. The applicant’s account of his employment as an English teacher needed to be appraised by reference to a consideration of the documents that he submitted in support of that account; they constituted the only potentially corroborating evidence that he submitted.

94. In those premises I am satisfied that the Tribunal engaged in a proper consideration of the documents submitted, and that the findings of the Tribunal were explained clearly and flowed from a proper consideration of the relevant evidence. In the premises there is no basis for finding that the Tribunal erred in law in finding that the applicant had not shown that he was employed as an English teacher.

The findings related to the applicant’s account of being detained by the Taliban

95. This issue was the focus of the most forceful analysis at the hearing. The applicant highlighted the use of country of origin information by the Tribunal and its approach to assessing the credibility or plausibility of the applicant’s account.

96. It can be observed that the Tribunal dealt with this as a separate element in its decision, and did not simply reject the account because to some extent it was premised on the contention that the applicant had been employed as an English teacher in the Institute. The Tribunal was satisfied that regardless of his employment status, the applicant clearly was proficient in English. It can also be noted that this aspect of the applicant’s account did not depend on any consideration of documentary evidence.

97. It is helpful at this point to set out certain of the principles identified by Cooke J in IR v Minister for Justice and Ors [2015] 4 I.R. 144, bearing in mind that those principles have been approved by the High Court and Court of Appeal on a number of occasions. Having reviewed an extensive body of case law, Cooke J. set out at para. 10 the principles that could be said to emerge from the case law as a guide to the manner in which evidence going to credibility ought to be treated and the review of conclusions on credibility to be carried out: - “iv) The assessment of credibility must be made by reference to the full picture that emerges from the available evidence and information taken as a whole, when rationally analysed and fairly weighed. It must not be based on a perceived, correct instinct or gut feeling as to whether the truth is or is not being told.

v) A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding.

…

viii) 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.

...

x) … there is no general obligation in all cases to refer in a decision on credibility to every item of evidence and to every argument advanced, provided the reasons stated enable the applicant as addressee, and the Court in exercise of its judicial review function, to understand the substantive basis for the

conclusion on credibility and the process of analysis or evaluation by which it has been reached.”

98. The applicant’s argument started from the premise that, in addition to the difficulties that ordinarily can arise, assessments of credibility in relation to matters occurring in Afghanistan is particularly difficult due to the paucity of reliable information available after the Taliban took over that state in the summer of 2021. That paucity of information is highlighted in the country of origin information that the Tribunal itself identified to the applicant in correspondence. The UNHCR noted at para 16 in its Guidance Note on Afghanistan that “there are serious limitations on information gathering in Afghanistan, which make it difficult to obtain a comprehensive understanding of the treatment of Afghans of different profiles across Afghanistan.”

99. To supplement those general principles the applicant referred to certain “soft law” guidance from expert bodies. In the EUAA document, “Evidence and Credibility assessment in the context of the Common European Asylum System” from February 2023, the authors state the following at section 4.5.4.(where I have removed references to footnotes): “Care needs to be taken when relying on plausibility or its lack, because in general terms the concept relates to general assumptions about what is considered likely to have happened or to happen. In the context of assessing claims for international protection, such assumptions may be influenced by culture, language and tradition. The Irish High Court has held that “[a] finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons drawn from such facts must be cogent and bear a legitimate connection to the adverse finding. In this context it may be particularly important to examine the reasons behind a finding of plausibility or implausibility.”

100. To similar effect, in “Beyond Proof Credibility Assessments in EU asylum Systems” published by the UNHCR in May 2013, the authors make a number of observations from pages

178 to 181, that I have summarised below:

• Resorting to “common sense” is not an effective means of judging the plausibility of events, particularly in societies and countries that differ from one’s own.

• Considerable caution is required when assessing the behaviour, norms, and customs of people from different cultures, and the practices and procedures of their political, justice and social systems.

• A fact need not be implausible because it is exceptional or remarkable. Exceptional events occur.

• The decision maker needs to be careful not to rely on their own views of what is plausible based on their own experiences, which are likely to be quite different from the applicant’s.

101. At page 182 of the document, the authors provide an example of how decision makers have been noted to have speculated on how events could have unfolded and where the decision made was based on speculation about how others would have acted, rather than by drawing inferences from objective independent and reliable evidence. The authors note: “It was considered implausible that the applicant was not attacked immediately upon refusing to take part in terrorist activities, but was instead attacked in a fitness room. It was considered implausible that his friend would offer to drive him home given that had just refused to cooperate; it was considered implausible that there was no conversation in the car because music was playing; it was considered implausible that the applicant could still get away having been beaten for ten minutes. These findings were speculative and not based on evidence.”

102. The applicant’s counsel highlighted that the UNHCR guidance note, at para 24, goes on to observe that, because of the limitations on information gathering in Afghanistan, decision makers should refrain from drawing adverse inferences from the absence of verified country of origin information to support and corroborate all aspects of the evidence provided by an applicant. Bearing that caveat in mind, the EUAA country guidance from January 2023 makes a number of points that are potentially relevant:

• The lack of clarity regarding the prevailing legal order and lack of predictability in its application is a prominent feature in Afghanistan since the return of the Taliban.

• While there is a generally low risk of forced recruitment by the Taliban, the risk impact affects, inter alia, young men.

• Being perceived as “westernised” is a risk impacting circumstance. The report notes at page 78 that one matter that can lead to that characterisation is learning English.

• Arbitrary arrest and detention is widespread.

103. It can be recalled the Tribunal decision on the “capture by the Taliban” claims focused particularly on the applicant’s claim that he was given five days to decide whether or not to work with the Taliban. In that regard, the Tribunal was concerned that this provided the applicant with the opportunity to escape. To that, the applicant stated that the Taliban prefer that you work with them by choice. The Tribunal finding was reasoned as follows in para. [4.10]: “Although the applicant asserted that this was their policy, there is no objective information before the Tribunal to this effect and indeed the COI referenced in the Appellant’s written submissions highlights the fact that the Taliban carry out extra judicial killings and public hangings of those who are seen to oppose them. When the choice is either work for the Taliban or die, it is clear that the Taliban are not concerned with a person’s will or desire. The kidnap of the Appellant, is by its very nature the taking of the Appellant against his will. Even if the Taliban were interested in providing such a time period, it is not plausible that they would have released the Appellant in order for him to make the choice. The Tribunal does not accept as credible that having kidnapped the Appellant and having outlined the desire that he work for the Taliban that they would then release him to enable him to make a decision about their proposal thereby providing him with the opportunity to escape.”

104. In my view, the applicant is correct that the matters set out by the Tribunal at [4.10] in the impugned decision do not amount to an adequate or proper assessment of the credibility of the applicant’s account of his capture. Effectively, the credibility of the account was assessed by the decision maker seeking to place themselves in the position of the Taliban and then seeking to assess if that body would have acted in the way described by the applicant. In finding that it was implausible that the Taliban would have acted in that way, the decision maker engaged in speculation without giving any real consideration to the questions of fact.

105. The court is not making any finding of fact on the matters that were in issue before the Tribunal in this case, or providing a view on the credibility of the applicant. The court’s focus is on the decision making process as revealed by the Tribunal report. One would expect some analysis of the country of origin information that had been expressly drawn to the attention of the applicant by the Tribunal. The Tribunal noted that the country of origin information does not refer to persons being given time to decide whether to work with the Taliban. However, while this is true, the statement is made without referring to other matters that I have identified above regarding the limitations on information emerging from Afghanistan, and the lack of consistency of approach by the Taliban generally. This seems particularly material where the events described by the applicant occurred early in the transition following the Taliban’s take over of power, when would assume that matters were in some state of flux. Similarly, it is true that the country of origin information points to extrajudicial killing of those who are seen to oppose the Taliban, but it is a leap of logic to infer from that information that the Taliban would not afford the applicant some time to weigh his options, particularly when there was no evidence that it viewed the applicant as someone who opposed the Taliban.

106. Ultimately from my reading of the reasoning in that part of the decision, the finding hinges not on evidence but on the decision maker’s subjective gut sense that the applicant’s account of the Taliban’s approach to him was not plausible. I have set out extensively above the variety of cautions in the literature and in the IR principles (iv) and (v) on the dangers of speculation or conjecture, particularly concerning cultures and situations that are markedly different from everyday experience in this State.

107. Accordingly, I am satisfied that the applicant is correct that the decision on the applicant’s capture was unlawful. I view that element in the impugned decision as a central finding and I am also satisfied that this carries the consequence that the overall decision should be quashed.

108. As that disposes of the application, I will simply record that I was not satisfied that the part of the decision addressing the position of the applicant’s mother was unlawful. It seems to me that the Tribunal was entitled to find that the evidence in that regard was very limited and somewhat inconsistent. I consider that the decision made was within the range of lawful decisions open to the Tribunal on the facts.

109. I was concerned about the question of “westernisation” in the context of the treatment of future risk. It seemed to me that insufficient consideration was given to the country of origin information in light of the fact that, whether or not a teacher, the applicant was proficient in English and has spent a considerable period outside Afghanistan. The fact that the applicant was able bodied, educated and had family connections in Afghanistan may well go to the question of whether he could provide for himself if returned to Afghanistan, but it does not seem relevant to the question of whether he faces a risk of persecution or serious harm if returned to that state on account of a perception that he is “westernised”.

CONCLUSION

110. Accordingly, as explained above I have concluded that the applicant is entitled to succeed in his argument that the treatment of the credibility of his account of being captured by the Taliban was unlawful. I am satisfied that this error was sufficiently material to vitiate the decision and to warrant granting an order quashing the decision. I will therefore quash the

decision and make an order remitting the issue for consideration by a differently constituted Tribunal. As this judgment is being delivered electronically, I will express the provisional view that the applicant should be entitled to the costs of the application for judicial review. I will list the matter for final orders at 10.30am on Thursday, the 26 June 2025, and I would like the parties to consider in advance of that hearing whether there is a need for any further redactions before the judgment is published.