High Court grants leave to challenge Minister's deportation order under trafficking act due to flawed process.

THE HIGH COURT

JUDICIAL REVIEW

[2025] IEHC 572

RECORD NO. 2025/1253 JR

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

BETWEEN

A. B.

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION

RESPONDENTS

RULING of Ms. Justice Siobhán Phelan, delivered on the 17th day of October, 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.

BACKGROUND AND CHRONOLOGY

2. The Applicant is a national of Georgia who made an application for international application in July, 2022, claiming that he and his brother would face persecution and/or serious harm if returned to Georgia on the basis of a “political issue”.

3. The Applicant was interviewed for the purposes of s. 13(2) of the 2015 Act on the 12th of July, 2022. Thereafter, the Applicant completed an International Protection Application Questionnaire on the 5th of August, 2022, in which the identified ground of persecution was “race” (not political opinion or membership of a social group). In explaining the reasons for the application for protection, the Applicant gave details of his conflict with a named individual (hereinafter referred to as “GM”) arising from the appropriation of the Applicant’s land by GM and his “gang”.

4. GM was identified as a person with influence in the police and “the black world”. It was also stated that GM’s brother was a politician of the Georgian Dream party. The Applicant claimed to have been physically and verbally threatened including threats as to what would happen if a complaint were made to the police during two separate incidents in August, 2021 and April, 2022.

5. The Applicant was interviewed under s. 35 of the 2015 Act on the 17th of November, 2023. During his interview, the Applicant was asked why his problems were not reported to police. He responded that his attackers had power and GM was connected to the government. He had heard that these “guys” had killed two other people, but he was unable to name those people. When questioned further, he said that he didn’t ask for help in Georgia because:

“I was sure this guy has power in the government so he might do something against me”.

6. By decision dated the 1st of February, 2024, the International Protection Office (hereinafter the “IPO”) recommended that the Applicant not be declared eligible for asylum or subsidiary protection. The IPO did not accept, on credibility grounds, that the Applicant had been assaulted and verbally abused by GM and his friends in August, 2021, or April, 2022 and that he fled Georgia because GM’s brother was in parliament.

7. In the report prepared pursuant to s. 39 of the 2015 Act, the IPO set out the Applicant’s claim and the legal basis for assessing the claim before detailing its reasons for finding the basis of the claim to be lacking in credibility, principally by reason of a lack of detail and/or vagueness as to the attacks on him and his brother and the injuries sustained.

The fact that important details (such as loss of consciousness in the attack) had not been previously mentioned was identified as factors undermining of credibility noting explanations such as “probably just forgot”. The absence of medical documentation in respect of a claimed three-day hospitalisation to support a claimed fixing of his jaw with metal was also highlighted in rejecting the claim.

8. The account given of power and influence on the part of GM’s brother was also considered by the IPO to be vague and speculative in circumstances where the Applicant did not seem to know what role GM’s brother had with the Georgian Dream party or Parliament.

9. Finally, the s. 39 report recorded that the IPO attached significance to the fact that the Applicant had not engaged with the authorities in Georgia at any point, simply stating that he thought he would be “much safer here” when it was put to him that Georgia was considered a safe country.

10. On the 20th of March, 2024, the Applicant’s solicitors filed a Notice of Appeal against the negative recommendation of the IPO, followed by written submissions dated the 21st of March, 2024 and further submissions by letter dated the 4th of April, 2024.

Whereas no request for an oral hearing was made in the Notice of Appeal, the submissions requested an oral hearing on the basis that the application had been rejected on credibility grounds. The submissions relied on extensive country of origin information (hereinafter “COI”) in which issues were identified in Georgia including issues regarding accessibility of the justice system and corruption of officials. This COI material was not specifically tied in submissions to the Applicant’s case. Indeed, at paragraph 22 of the submissions dated the 21st of March, 2024, it was submitted that the Applicant’s claim was coherent, plausible and consistent with the known situation in his country of origin and it was stated “in this regard, we refer you to” but the sentence ended there without reference to any particular document. It was also submitted (at paragraph 23) that the Applicant had made “every possible and reasonable effort to support his application with the necessary and available documentary evidence” without addressing why medical documentation could not be obtained in respect of a three-day hospitalisation nor to confirm the political role or status of GM’s brother.

11. In the supplemental submission made by letter dated the 4th of April, 2024, an attempt was made to support the Applicant’s appeal with reference to Query Responses from the Refugee Documentation Centre in reliance of COI material addressing, inter alia, issues with accessing the court system in relation to disputes over property rights, delays in accessing the criminal justice system, problems with the independence of the judiciary and challenges to effective investigation of complaints by reason of abuse of power on the part of the police but also instancing criminal prosecution of officials for such abuses. A lack of sufficient independence in law-enforcement and the judiciary leading to a failure to promptly and effectively investigate all cases of corruption was reported on in the material identified to the IPAT on the Applicant’s behalf. Much, but not all, of the COI identified related to gender-based or sexual violence and was not directly relevant to the facts and circumstances of this case.

12. The Applicant was notified of a negative IPAT decision by letter dated the 17th of June, 2025. The written IPAT decision (over 15 pages) accurately summarised the case history, addressed the request for an oral hearing and the reasons for refusing this request having regard to the provisions of s. 43(b) of the 2015 Act, the case facts and documents were identified, an assessment of the facts and circumstances of the claim was carried out and the decision included an analysis of the claim under the separate headings of well-founded fear, persecution, well-founded fear of persecution, Convention reasons/nexus and protection against persecution before deciding to affirm the IPO recommendation that the Applicant should not be given a refugee declaration.

Thereafter, the IPAT proceeded to assess a risk of serious harm and having found a risk of serious harm, the availability of protection against serious harm, before again concluding that the IPO recommendation that the Applicant should not be given a subsidiary protection declaration should be affirmed.

13. On the 24th of June, 2025, the Applicant’s solicitors filed an application for review of permission to remain under s. 49(7) of the 2015 Act along with written submissions in support of his application, without prejudice to judicial review proceedings. These submissions included representations regarding prohibition of refoulement based on the facts and circumstances relied upon in making his protection claim. Further submissions were made by letter dated the 1st of July, 2025 and reliance was placed in these submissions on the fact that the Applicant was engaged to be married, had been in full time employment as a carpenter and had been paying tax for two years and six months. Emphasis was placed on the fact that the IPAT had accepted the Applicant’s credibility in finding a well-founded fear of persecution, quoting at length from the IPAT decision. Attention was further directed to “recent political instability in Georgia”, without elaboration.

14. The Minister issued a review decision under s. 49(7) dated the 21st of July, 2025, on the 24th of July, 2025 refusing permission to remain. This decision (21 pages long) referred to the documentation submitted, addressed the distinct elements of s. 49(3) under separate headings, reciting the submissions made and the findings of the IPAT. The

decision letter noted regarding the Applicant’s relationship with his stated fiancée that limited documentation had been submitted to show that they were in a subsisting relationship. In addition to the factors expressly identified in s. 49(3), the decision also addressed Article 8 of the European Convention on Human Rights considerations and conducted a proportionality assessment before concluding that he should be refused permission to remain in the State under s. 49 of the 2015 Act.

15. Proceedings were filed in the Central Office on the 14th of August, 2025. The Applicant’s solicitors were assigned a hearing date of the 18th of September, 2025, to move their leave application but papers were not lodged in accordance with Practice Direction in advance of that date and there was no appearance in the list at first or second call on the 18th of September, 2025 and in consequence the proceedings were struck out.

16. An application to reinstate was made by ex parte docket on the 1st of October, 2025 and was listed before me on the 10th of October, 2025. This application was grounded on an affidavit of the Applicant’s solicitor sworn on the 30th of September, 2025.

IPAT DECISION

17. Unlike the IPO, the IPAT largely accepted the Applicant’s credibility. The IPAT accepted that the Applicant was a national of Georgia and that he was the owner of farmland (notwithstanding that no documentation evidencing ownership was produced). It was further accepted that the Applicant had been assaulted when attempting to cultivate his land, even in the absence of medical evidence. The precise extent of the injuries claimed (to include a broken jaw) was not accepted in the absence of medical evidence. It was noted that no documentary evidence whatsoever was produced to establish that the persecutor’s brother was a member of the Georgian Dream Party and a member of parliament but notwithstanding this, the IPAT was prepared to afford the Applicant the benefit of the doubt. Accordingly, while the IPAT did not accept as established that the alleged persecutor had connections to government in Georgia, it proceeded to assess the claim further, giving the Applicant the benefit of doubt but clearly recording:

“the precise level of alleged political connection and influence has not been established.”

18. Thus, applying a low standard of proof applicable where past persecution is accepted as having been established, the IPAT proceeded on the basis that the Applicant had established a well-founded fear of future persecution.

19. Having done so, the IPAT found no Convention nexus considering that the basis for the targeting of the Applicant and his brother was a private property dispute. This

conclusion is reasoned by reference to the Applicant’s evidence to the IPO. It was accepted by the IPAT that the alleged political connection of one of the parties to the

dispute may be of relevance to other issues, such as protection, but the political connection was not the basis for the dispute.

20. The IPAT records that in view of its findings in respect of lack of Convention nexus, the question of protection against persecution did not arise for determination on the application for refugee status but it proceeded nonetheless to set out what its determination would be on this issue, a question that was also relevant to the subsidiary protection claim.

21. The IPAT noted regarding the question of State protection that no complaint was made to the police after either assault incident or before the Applicant left Georgia. The IPAT noted the reasons offered by the Applicant for not reporting the matter and stated that it had taken into account COI supplied in the Applicant’s submissions and specifically alleged corruption in Georgia, including judicial corruption and bribery in respect of land disputes. The IPAT rejected the claim that the police and judicial system would not protect the Applicant because of the claimed political connection of his assailant’s brother as “unrealistic”. Specifically, regarding the subsidiary protection claim (recalling that a Convention nexus was separately found not to have been established), the IPAT stated:

“The Tribunal considers that if the Appellant were to approach the authorties in Georgia with his allegations, about having been injured by a named individual and his associates, and about the connection between that individual and a namely politician, it is unrealistic to conclude that sufficient protection would not be available to him”.

PERMISSION TO REMAIN DECISION

22. As noted above, the review of the refusal of permission to remain under s. 49(7) was addressed in a type-written decision running to 21 pages. The decision was in a format which is very familiar to me from other cases. The permission to remain refusal

decision reproduced the IPAT decision in some detail, whilst also referring to the submissions made including the fact that the Applicant had been employed in the State and was engaged to be married to a recognised refugee.

23. It is striking that while the IPAT decision is reproduced in full, the permission to remain

decision does not expressly reflect consideration of whether the fear of persecution accepted by the IPAT gave rise to humanitarian considerations which required to be weighed in the exercise of a discretion to grant permission to remain under s. 49(3) of the 2015 Act raising a question as to the weight the decision maker attached to the fact that it had been accepted by the IPAT that the Applicant had been persecuted and had a well-founded fear of future persecution. Similarly, the submission made that recent political instability in Georgia might impact on the Applicant’s ability to access State protection was not directly addressed.

ISSUES ARISING

24. The five questions addressed in the outline written submissions prepared on behalf of the Applicant were as follows:

I. Was the finding of the IPAT irrational/unfair in finding a well-founded fear of persecution yet concluding sufficient and effective State protection exists in Georgia?

II. Did the Tribunal err in finding that fear of persecution was not for a Convention reason despite the Persecutor’s political connections?

III. Was the IPAT irrational in concluding that it would be unrealistic to suggest political connections would affect police/judicial protection given corruption in Georgia?

IV. Is it unlawful as in breach of statute/procedural fairness or was the Tribunal irrational in refusing an oral hearing?

V. Is the permission to remain decision (hereinafter “PTR decision”)

irrational/procedurally unfair for failing to engage in lawful assessment under s. 49(3) and/or Article 8(1) of ECHR?

25. These questions correspond broadly with the terms in which the Statement of Grounds is pleaded.

LEGAL TEST

26. 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”) which under s. 5(2) specifies as follows:

“(2) An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in subsection (1) (hereafter in this section referred to as an "application") shall 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, and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.”

27. Accordingly, the higher threshold of “substantial grounds” applies to the decision to grant or refuse leave to proceed by way of judicial review but there are also requirements as to time and a conditional discretion to extend time.

28. 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”.

29. 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.

DISCUSSION AND DECISION

Preliminary

30. The matter came before me on the 10th of October, 2025, on an application to reinstate the proceedings. I proceeded to hear the application on that date but reserved my ruling to ensure that I had a proper opportunity to consider the papers in full.

31. I am satisfied to reinstate the proceedings on the basis of the explanation advanced on affidavit in respect of non-appearance in the list before me on the 18th of September, 2025 and the failure to file papers in accordance with practice directions for the purpose of that hearing, however, there remains a time issue arising from the failure to bring proceedings within 28 days of the impugned IPAT decision.

32. An extension of time is required in respect of any challenge to the IPAT decision in circumstances where proceedings were filed on the 14th of August, 2025, well in excess of 28 days post the communication of the IPAT decision by letter dated the 17th of June, 2025. While time stopped with the filing of papers such that the period of delay which concerns the Court on an extension of time application is the period between mid-July and mid-August, it would be remiss not to point out the importance of proceeding expeditiously with a leave application where there has already been delay. It was therefore unfortunate that notwithstanding the late filing of papers, there was no appearance in respect of the leave application which was therefore not progressed in a timely manner when the matter was listed on the 18th of September, 2025. To err is human and everyone can make a mistake, but it is imperative that checks and safeguards are in place to reduce the risk of these occurrences. In this case, there had been an email exchange with the Registrar in the week proceeding the 18th of September, so the fact that it was overlooked in the list is particularly surprising.

33. Although it has been averred in grounding an application to reinstate proceedings that there was no appearance in the list on behalf of the Applicant on the 18th of September, 2025, through the inadvertence of the Applicant’s legal team resulting in the proceedings being struck out at second call, the only basis identified for an extension of time for the delay from mid-July and the date of the Permission to Remain decision (about one week as it transpired) is that the Applicant was “awaiting the PRT Review

decision, which I say and am advised follows shortly, to bring a comprehensive challenge to both proceedings.” While the refusal of permission to remain issued on the 24th of July, 2025, such that in this case, the additional delay caused in waiting for the permission to remain decision was relatively short being a period of one week, it bears note that the Applicant had no control over the length of this delay. In the circumstances he appears to have proceeded on the mistaken basis that he was entitled to await this decision before proceeding with any challenge in respect of the IPAT

decision.

34. It follows that where a decision was made to await the permission to remain refusal to mount a joint challenge, some additional delay would be expected to result in considering that later decision. Indeed, the Applicant’s solicitor avers that some delay arose from the fact that the proceedings were prepared during the Long Vacation (which I feel compelled to observe might have been avoided had action been taken when the IPAT decision was received) and the Applicant required the services of a translator for the purposes of consultation and swearing, “which all contributed to some delay” (at para. 12 of the Applicant’s solicitor’s first affidavit). If I were prepared to excuse the failure to initiate proceedings within 28 days of the IPAT decision, I am satisfied that there is a basis for seeking an extension of time in respect of the additional time taken after the delivery of the Permission to Remain decision.

35. This brings us back, however, to the conundrum of a decision apparently taken not to bring a challenge within the 28 day time limit but to instead await the next decision in the statutory process which related to a distinct and different statutory test and stage of the process. The Applicant offered no other explanation for this initial delay plainly stating that he was awaiting a separate decision on his permission to remain review application before proceeding with a challenge. There can be no justification for the Applicant taking this approach. Were there a basis for separate challenge to the later

decision and a wish to avoid two sets of proceedings, that could have been addressed by an application to amend existing proceedings. Indeed, quite typically now, I am asked to determine leave applications based on an amended Statement of Grounds because of an intervening decision in a case since proceedings were filed. There is no reason why a similar approach could not have been taken in this case.

36. I note that the written submissions lodged in support of the leave application do not address the extension of time question at all, nor was I addressed on this question during the re-instated application for leave. This suggests an unacceptably cavalier approach to the significance of a statutory time limit and is tantamount to a disregard for the importance of the time-limit which has been prescribed in law and which I am obliged to enforce, absent good and sufficient reason for granting an extension of time.

37. It seems to me that no proper basis for seeking an extension of time has been advanced in this case. The fact that another decision is outstanding on a separate statutory application could never be “good and sufficient” reason to elect to await the next stage in the process before bringing proceedings to challenge a final decision in respect of a protection application. I am not prepared to grant leave to seek an extension of time on the basis of such a relaxed approach to compliance with the requirements of statute coupled with a failure to give some explanation for delay in instituting proceedings which might plausibly provide the basis for an extension of time on the basis that “good and sufficient reason” had been demonstrated, as required under s. 5(2) of the 2000 Act.

38. While I am not satisfied that this is a case in which an adequate basis for leave to seek an extension of time has been demonstrated in respect of the challenge by way of judicial review to the IPAT decision, I propose for completeness and in case I am found to be wrong in refusing leave to seek an extension of time to nonetheless consider whether the substantial grounds test is met on any of the legal bases identified in the Statement of Grounds. I do so in circumstances where the Applicant is, in any event, in time in respect of a challenge to the refusal of permission to remain as the decision on that application issued within 28 days of the institution of proceedings such that this is an application which requires further consideration in any event.

Was the finding of the IPAT irrational/unfair in finding a well-founded fear of persecution yet concluding sufficient and effective State Protection exists?

39. It is now well established that a finding of a well-founded fear of persecution may coexist with a finding that effective State protection exists and that each concept is a distinct component of the test to be met in establishing an entitlement to protection status. In this regard, I rely on the decision of Heslin J. in T.A. v. IPAT & Ors. [2023] IEHC 390 (as subsequently applied in other cases), although I note that surprisingly this jurisprudence was not referred to in the submissions on behalf of the Applicant despite a clear requirement by way of Practice Direction to identify authorities against the proposition being contended for in submissions at leave stage. On his feet, counsel for the Applicant responded to a question from me as to whether authority was against him on this by referring to a decision of Dunne J. in the Supreme Court but could not assist by providing either the name of the case or the citation and I do not know as to which case he was referring.

40. In T.A. Heslin J. found that there is a clear distinction between the concept of well– founded fear and the entitlement to refugee status. He concluded that State protection is an element of, but distinct from, the definition of refugee. He added that while the concepts of (i) fear of persecution and (ii) protection are certainly “intrinsically linked”

but this is a close linking of distinct elements making up a unitary definition. He explained that the concepts of “risk” and “protection”, whilst elements of a single definition, amount to distinct concepts. The contention that the finding that State Protection existed because the IPAT found a well-founded fear of persecution and/or serious harm is irrational is not a sustainable proposition and is not arguable on a substantial grounds threshold.

Did the Tribunal err in finding that fear of persecution was not for a Convention reason despite the Persecutor’s political connections?

41. The Applicant seeks to contend that the IPAT erred in finding a political nexus even though the Applicant has made the case that he had not sought to access State protection because of the political connections of his persecutor, whose brother, he says, was a politician. He relies on the decision of the CJEU in Intervyuirasht organ na DAB pri MS [2024] EUECJ C-621/21 in this regard. C-621/21 was a case concerning a failure to protect women victims of domestic violence. The CJEU clarified in its decision that women, when victims of gender-based violence, can qualify as members of a “particular social group” to benefit from refugee protection under the Qualification Directive. The CJEU found that where an applicant claims a fear of being persecuted in his or her country of origin by non-State actors, it is not necessary to establish a link between one of the reasons for persecution referred to in Article 10(1) of that Directive and such acts of persecution, if such a link can be established between one of those reasons for persecution and the absence of protection from those acts by the actors of protection referred to in Article 7(1) of that directive. The CJEU found that women, as a whole, may be regarded as belonging to a social group, within the meaning of Directive 2011/95, and qualify for refugee status if the conditions laid down by that directive are satisfied. This will be the case where, in their country of origin, they are exposed, on account of their gender, to physical or mental violence, including sexual violence and domestic violence. In essence, therefore, it was found that the systemic failure of State actors to protect women, as members of a social group, from domestic violence because they were women could lead to the grant of protection status.

42. It is frankly very difficult to see how this principle could be extended to apply in the case of the Applicant. He does not claim any political opinion and was not subjected to persecution because of any personal characteristic (unlike the example of female victims of domestic violence). Quite apart from the fact that C-621/21 was concerned with women as members of a social group (for Convention nexus purposes) whereas the group to which the Applicant contends he belongs might loosely be described as a group of landowners whose land is appropriated by persons of influence (which does not sit easily with the definition of “social group” under s.8(1)(d) of the 2015 Act), there is the additional difficulty with the evidence of the lack of State protection. By analogy with C-621/21, the Applicant would need to establish evidence of wide-spread impunity under Georgian law in respect of criminal wrongdoing for those with some tangential political connection, even where the alleged persecution had nothing to do with politics. It seems to me that there is a complete absence of the type of evidence which would be required to substantiate a claim as to widespread non-prosecution of offences perpetrated by persons having a connection in politics in order to retro-fit a Convention nexus on grounds of political opinion.

43. The claim which is sought to be advanced on behalf of the Applicant in contending that the finding of lack of Convention nexus was wrong in law is a significant over-reach not supported by the authority cited. I am not satisfied that the claim is arguable on a substantial ground’s threshold.

Was the IPAT irrational in concluding that it would be unrealistic to suggest political connections would affect police/judicial protection given corruption in Georgia?

44. In view of the COI submitted to substantiate the existence of police corruption, it seems to me that the IPAT decision might be criticised for failing to explain why the asserted lack of protection was “unrealistic” in the absence of fuller engagement with COI to support the conclusion that effective State protection was available. Were it not for the time issue addressed above, I could have been persuaded that a substantial grounds threshold of arguability was reached in respect of this element of the claim as pleaded.

Is it unlawful as in breach of statute/procedural fairness or was the Tribunal irrational in refusing an oral hearing?

45. Under s. 72 of the 2015 Act and the International Protection Act 2015 (Safe Countries of Origin) Order, 2018 (No. 121 of 2018), the Minister has designated Georgia a safe country of origin. By reason of this designation, where the Applicant does not submit serious grounds for considering the country not to be a safe country of origin in his particular circumstances and in terms of his eligibility for international protection, any appeal he may have against a recommendation to refuse protection may be determined in accordance with accelerated procedures which do not provide for an automatic right to an oral hearing. The IPAT has a discretion pursuant to s. 43(b) of the 2015 Act to convene an oral hearing where it is considered proper to do so having regard to the interests of justice. The separate question of whether there is a requirement to inform the Applicant of the decision on an application for an oral hearing before proceeding to determine the claim, also pleaded in this case, is an issue which has been ventilated in other cases in which leave has been granted and judgment is pending in one such case.

46. In this case, the reasons for seeking an oral hearing were not addressed by the Applicant in his Notice of Appeal. Indeed, although a detailed submission was made in support of the appeal by two separate letters, the request for an oral hearing was made in very bare terms as follows:

“It is requested in the interests of justice that an oral hearing be afforded to this Appellant in circumstances where his application was rejected on the basis of credibility and the Appellant would like to give oral evidence to address the adverse findings made in that regard.”

47. There was little engagement of a substantive, factual kind with the adverse credibility findings made by the IPO (which were largely reversed by the IPAT in any event)

instead the submissions referred at length to COI of a general kind relating to land disputes in Georgia, the effectiveness of the criminal justice system and the judicial system generally. Nothing further was adduced in relation to the identity of the persecutor’s brother, the identity of other persons who had been killed or the medical treatment which the Applicant obtained over a three-day hospitalisation. Notably, it was not indicated what the Applicant could add if afforded an oral hearing beyond what was contained in the appeal documentation and what he had already said when interviewed.

48. The refusal of an oral hearing is addressed in the IPAT decision at paragraphs 5 to 7. It is noted by the IPAT that the Applicant had the benefit of an oral process before the IPO and that the Tribunal also corresponded with the Applicant in relation to possible reliance on his brother’s file, thereby addressing through correspondence an issue which arose from a consideration of the file in advance of deciding the claim.

49. Given that the Applicant was given the benefit of the doubt in the assessment of the claim and his evidence as to what occurred in Georgia was accepted by the IPAT, it is not immediately clear how the Applicant was disadvantaged by the absence of an oral hearing. On affidavit grounding these proceedings, he states that he was not given:

“any opportunity to further expand on and explain the reasons why I did not believe police protection would be available to me. I had no opportunity to explain why I could not rely on the police or that I would be unwilling to go to the police based on my experiences and belief that there is corruption within the police force”.

50. He was, however, repeatedly asked during his s. 35 interview why he had not reported the matter to the police and he confirmed that he had nothing further to add.

Accordingly, he was well aware that this was an issue upon which considered relevant and important and he was given an opportunity to address it orally before the IPO and subsequently in written submissions in support of his appeal. Furthermore, in making his s. 49(7) review application and supporting it with supplemental submissions after the IPAT refusal, I have noted that the Applicant did not seek to expand on why police protection would not be available to him even though by then he was aware of the basis for the IPAT decision. Instead, his supplemental submission referred without elaboration and in bare terms to “recent political instability in Georgia”. Nor does he say anything further on affidavit in grounding these proceedings of a specific factual nature to substantiate his claim of unfairness because of identified matters he could have elaborated upon had he been given the opportunity.

51. It seems to me that the Applicant has not laid an adequate evidential basis for the claim he makes that there was an unfairness in the process by reason of the absence of an oral hearing. Whilst in common with other cases, the Applicant might have been able to persuade me to give leave on the basis that he should have been informed of a decision to proceed without an oral hearing given that this issue has been argued and is awaiting judgment were it not for the time issue addressed above, I do not find his position in advancing such a case to be compelling. It is weakened by the fact that IPAT mostly accepted the credibility of his account (unlike the IPO) and by the fact that it is not clear what he says he could have added which might be material to the IPAT’s decision had he been afforded an opportunity to present oral evidence at appeal stage. Accordingly, the weightiest factor in favour of granting leave in respect of the failure to communicate a refusal of an oral hearing in advance of proceeding to determine an IPAT appeal is the fact that leave has been granted in other cases and a final decision on the issue is awaited.

Is the PTR decision irrational/procedurally unfair for failing to engage in lawful assessment under s. 49(3) and/or Article 8(1) of ECHR?

52. No time issue arises in relation to the PTR challenge. In relation to this challenge, the issues pleaded have arisen in a significant number of cases and leave has been granted in applications made 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.). Several cases have proceeded to hearing as lead cases with judgment awaited. More recently cases raising similar issues have been adjourned on notice to the State into a holding list pending the determination of these lead cases. I have taken this approach where no distinguishing features are identified from lead cases such as would make it appropriate to progress the case separately.

53. I have concluded that, in common with other cases in which leave has been granted, a reasonable argument may be made that the refusal of leave to remain is flawed as to process in this case too such that the threshold for leave is met on the face of the Minister’s decision. This case has features, however, which are not typically present in the s. 49 challenges which have progressed for hearing. Specifically, I note the absence of any overt consideration of the findings made by the IPAT in this case that the Applicant had established a well-founded fear of persecution and/or serious harm from a humanitarian perspective under s. 49(3). In my view this is a factor unique to the circumstances of this case which turns on the findings made by the IPAT on the facts of this case and the potential significance of these findings to the s.49 decision. Due to this separate consideration, I am concerned that this case may not be determined by the outcome of the lead cases and for this reason it would not be appropriate to adjourn it in a holding list without determining the leave application.

54. Accordingly, I propose to grant leave to seek the relief claimed at d(3) in respect of legal ground (e)3 of the Statement of Grounds pertaining to the challenge to the permission to remain decision.

CONCLUSION

55. For the reasons set out above, I will grant leave to seek the relief at d (3) of the Statement of Grounds on the legal grounds set out in e (3)(ii) and (iv). These are the only legal grounds of challenge which are in time and upon which the threshold for the grant of leave under s. 5 of the 2000 Act is met. Apart from leave to seek consequential relief such as costs as may be appropriate, I otherwise refuse leave on this application. I will reserve the costs of this application, limited to the costs of the leave application. I refuse to make any order as to the costs associated with the application to reinstate which was

only necessitated by the failure to attend in court when the leave application was first listed.