Court dismisses judicial review where applicants failed to provide strong grounds to trigger the duty of cooperation.

THE HIGH COURT

Record No. 2024 434 JR

[2025] IEHC 672

BETWEEN

I.A.

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER

FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Record No. 2024 435 JR

BETWEEN

M.M.

APPLICANTS

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER

FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT delivered by Mr. Justice Sean Gillane on 1 December 2025

Introduction

1. The applicants are Georgian nationals that married in May of 2022.

2. They came to Ireland on the 21st of May 2022 and applied for international protection in the State on the 24th of May 2022.

3. The applicants’ claim for international protection was rejected at first instance before the International Protection Office (“IPO”), and they subsequently appealed that

decision before the first named respondent.

4. The applicants’ appeal was rejected on the 29th of February 2024 on the basis that state protection would be available to them in Georgia, their country of origin.

5. The applicants seek orders quashing the decision of the first named respondent on the basis of an alleged failure to ‘cooperate’ with the applicants in the assessment of their claim for international protection.

Procedural History

6. These proceedings issued on the 26th of March 2024, and leave to apply for judicial review was granted by Hyland J. on the 22nd of July 2024.

7. Leave was granted to seek an order of certiorari quashing the part of the first named respondent’s decision in which they found that the applicants’ grounds for not seeking state protection did not amount to serious grounds for considering Georgia not to be a safe country of origin in their circumstances.

8. Leave was also granted to seek an order remitting the ‘state protection’ issue to the first named respondent for an adjudication thereon in accordance with law, whilst preserving the remaining findings made by the first respondent in the impugned decision.

9. In the hearing before me, counsel for the applicants indicated that the second relief was no longer being pursued, and submissions were therefore confined to the legal and factual basis for an order of certiorari.

10. While the applicants issued separate proceedings, the relief sought and the legal basis for same are identical in both sets of proceedings. The factual background is broadly the same and it may be said that each applicant’s case can only be understood by reference to the other. In circumstances where the cases were also heard together, I am of the view that it is appropriate to deliver a single judgment in respect of both applicants.

Legal Background

11. Georgia has been designated as a safe country of origin.

12. This designation was made by the second named respondent pursuant to section 72 of the International Protection Act 2015 (“the 2015 Act”) which provides: “(1) The Minister may by order designate a country as a safe country of origin.

(2) The Minister may make an order under subsection (1) only if he or she is satisfied that, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.”

13. The section goes on to provide at subsection 3: “In making the assessment referred to in subsection (2), the Minister shall take account of, among other things, the extent to which protection is provided against persecution or mistreatment by—

(a) the relevant laws and regulations of the country and the manner in which they are applied,

(b) observance of the rights and freedoms laid down in the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the United Nations Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention on Human Rights,

(c) respect for the non-refoulement principle in accordance with the Geneva Convention, and

(d) provision for a system of effective remedies against violations of those rights and freedoms.”

14. Subsection 4 provides that the Minister shall base his or her assessment, referred to above, on a range of sources of information, including in particular information from “other Member States, the European Asylum Support Office, the High Commissioner, the Council of Europe, and such other international organisations as the Minister considers appropriate.”

15. The Minister is required to review the situation in a country designated under subsection

1 on a regular basis.

16. Section 33 provides: “A country that has been designated under section 72 as a safe country of origin shall, for the purposes of the assessment of an application for international protection, be considered to be a safe country of origin in relation to a particular applicant only where—

(a) the country is the country of origin of the applicant, and

(b) the applicant has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her eligibility for international protection.”

17. In essence, these provisions create a rebuttable presumption of safety in relation to the designated country.

The Applicants’ Argument

18. The applicants’ fundamental complaint in these proceedings is that the first named respondent wrongly relied on the fact of Georgia having been designated as a safe country of origin to the exclusion of its own duty to cooperate with the applicants in the assessment of their appeal. In particular, the applicants complain about the emphasis placed on their failure to submit serious grounds for considering Georgia not to be safe country of origin in their particular circumstances.

19. In order to understand the case made by the applicants, consideration will have to be given to the precise legal nature of the duty to cooperate before conducting an analysis of the factual background to the applicants’ respective cases.

Duty to Cooperate

20. The source of the duty to cooperate can be found in article 4 of Council Directive 2004/83/EC which states: “1. Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.

2. The elements referred to in of paragraph 1 consist of the applicant's statements and all documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.

3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:

(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied;

(b) the relevant statements and documentation presented by the

applicant including information on whether the applicant has been or may be subject to persecution or serious harm;

(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm….”

21. Both parties have referred to the decision of the Court of Justice of the European Union (“CJEU”) in Case C-277/11 M.M. v. Minister for Justice, Equality and Law Reform ECL:EU:C:2012:744 (“M.M.”) which, at paragraphs 65-66, described the duty to cooperate in the following terms: “Under Article 4(1) of Directive 2004/83, although it is generally for the applicant to submit all elements needed to substantiate the application, the fact remains that it is the duty of the Member State to cooperate with the applicant at the stage of determining the relevant elements of that application.

This requirement that the Member State cooperate therefore means, in practical terms, that if, for any reason whatsoever, the elements provided by an applicant for international protection are not complete, up to date or relevant, it is necessary for the Member State concerned to cooperate actively with the applicant, at that stage of the procedure, so that all elements needed to substantiate the application may be assembled. A Member State may also be better placed than an applicant to gain access to certain types of documents.”

22. The scope and legal nature of the duty were also considered by Humphreys J. in A.A.L. v. IPAT [2018] IEHC 792, where he held under the heading ‘Summary of Duty’: “The shared duty in the light of the foregoing discussion can be summarised as follows:

(i) Under art. 4(1) of the directive 2004/83/EC it is generally for the applicant to submit all elements needed to substantiate the application: see M.M.

(ii) It is the duty of a Member State to cooperate with the applicant at the stage of determining the relevant elements of the application: see M.M. This involves cooperation with the applicant as opposed to a fully inquisitorial procedure. It also involves identifying the elements of the application actually made, not an application that the applicant could have made but did not.

(iii) The elements of the application fall broadly into two categories: the country situation and factors personal to the applicant.

(iv) Insofar as information regarding the country situation is concerned, Member States have an investigative burden with regard to the information listed in art. 4(3) of the qualification directive: see EASO judicial analysis. This is closer to the traditional understanding of the inquisitorial function.

(v) A Member State may also be better placed than an applicant to gain access to certain types of documents: see M.M. This is more likely to arise in relation to country documentation. State protection bodies are not in a position to obtain documents personal to an applicant because attempting to do so identifies the applicant to third parties as a protection seeker, contrary to the International Protection Act 2015, s. 26.

(vi) Insofar as factors personal to the applicant are concerned, the primary responsibility to describe the facts and events which fall into his or her personal sphere is that of the applicant: see authority cited in B.B.A. (India).

(vii) If the applicant fails to assemble the elements of his or her claim that are personal to him or her, the State therefore has only a limited role in supplying the deficit, as it is unlikely to be in a ‘better position’ to do so than the applicant (see M.M.).”

23. Before turning to the arguments in more detail, it is necessary to set out some of the

factual background.

Factual Background

24. It is not in dispute between the parties that I.A.’s parents are Jehovah’s Witnesses. It appears that I.A. himself is an Orthodox Christian. The case made by the applicants in this application is that they are being persecuted in Georgia, their country of origin, on account of that fact.

25. As part of the application for international protection, I.A. completed a questionnaire and was interviewed by an international protection officer with the assistance of an interpreter. I think it important to refer to some parts of that interview.

26. When asked why he was seeking international protection in Ireland, he responded, “I left as I was in danger back home as the family members of my wife didn't accept our relationship, they didn't want us to be together.”

27. He made further reference to his wife’s uncle, who used to call and threaten him, and said that this person had a criminal history and had been arrested before. He also gave an account of being beaten up by this person and several others and receiving two threatening phone calls.

28. He said: “Because of the fact we couldn't go to the police as a lot of the relatives were involved in this. There were so many people we couldn't go to the police.

This person is a brother of my wife's father. They are a very close relative for her. He was not really giving us another choice but to leave the country. The only way to lead a peaceful life was to leave the country.”

29. The only reference to Jehovah’s Witnesses in the course of the interview was when the applicant said as follows: “One of the reasons that they didn't like my family and myself as some year ago my family changed religion, they became Jehovah Witnesses, and my wife's family didn't want my wife to marry into a family like mine considering my parent's religion.

Her family is living in France and she stayed in Georgia because of me. She came up with different reasons why she wanted to study. Her uncle is there in Georgia and that was the person we dealt with.”

30. When asked again why he could not go to the police about the difficulties he was encountering, he said: “Unfortunately her family members are dangerous people most of them have gone to jail at different points for domestic violence cases. I can provide with names. Here were multiple people who were against us. I didn't see the point in going to the police.”

31. When asked to explain how he would not be able to avail of help or protection in Georgia given that it was designated as a safe country, he responded: “Both of her uncles have been convicted for domestic violence. One twice. Politicians consider Georgia a safe country but I disagree.”

32. He confirmed that he had told the interviewer all the reasons why he might be afraid to return. In respect of the questionnaire, he did not select any of the five Refugee Convention Grounds listed and instead selected the option ‘none of these.’

33. As part of the application for international protection, M.M. also completed a questionnaire and was interviewed by an international protection officer with the assistance of an interpreter.

34. When asked to explain in her own words why she was seeking international protection in Ireland, she responded: “We cannot go back to Georgia because we are in danger from my family so myself and my partner are in danger because of them.”

35. When asked to explain why she and her partner were in danger, she responded: “My uncle found out that I had a boy friend that he didn't like my family is quite conservative that's why I had to go back to the village often and after my uncle found out about this he didn't like it at all.”

36. She also made reference to her husband receiving a beating and referred to a second uncle who was involved in making threats.

37. When asked if there was a specific reason that her family had a problem with her husband, she responded: “I don't know about the specific reason, they don't like him and they didn't want me to get married at all.”

38. When asked whether her uncles had given her any reason as to why they did not like her husband or his family, she said:

“No. we didn't have such a relationship where they explained things to me. So they didn't tell me no.”

39. She said that she never reported these matters to the police in Georgia and could not do so as that would mean going to the police against her family members. When asked to explain how she would not be able to avail of help or protection in Georgia given that it was designated as a safe country, she responded: “I know that it's recognised as a safe country, however, its' not the case for everyone. There are many cases of domestic violence. It's not great for females. unfortunately there was people around me and because of these people I didn't feel protected or independent.”

40. When asked to explain a reference to religious faith in the questionnaire she had filled out and about the reason why her family did not approve of her husband, she said: “My uncles had a problem before they knew about the religious aspect.”

41. She confirmed that she had told the interviewer all the reasons why she might be afraid to return. In respect of the questionnaire, she did not select any of the five Refugee Convention Grounds listed and also selected the option ‘none of these.’

42. Both applicants thereafter filed identical appeal notices. The appeal notices did not make any specific reference to Georgia not being a safe country of origin due to difficulties stemming from the religious faith of I.A.’s parents.

43. The original determination against the applicants contained a number of adverse findings on the basis of credibility. The grounds of appeal emphasised the necessity for an oral hearing to properly address those findings.

44. Counsel for the applicant urged on this Court that it was relevant that the grounds of appeal focused on the oral hearing point. He also emphasised that ground 8 was expressed as “the right to submit further grounds and submissions is reserved.”

45. The first named respondent, under the heading ‘Analysis of Well-Founded Fear,’ found in respect of M.M. that: “Although not a clear case, the Tribunal finds that religion is one of the reasons for the feared persecution, which is sufficient to establish a nexus with a section

8 ground.”

46. Under the same heading in respect of I.A., the first named respondent found that: “With regard to nexus, one of the reasons that his wife's family disapproves of him is that his parents are Jehovah's Witnesses. The Tribunal finds that religion is one of the reasons for the feared persecution, which is sufficient to establish a nexus with a section 8 ground.”

47. Section 8 of the 2015 Act provides that an international protection officer or the Tribunal, as the case may be, shall take certain matters into account when assessing the reasons for persecution, one of which is religion.

48. In the event, the first named respondent resolved the credibility findings in favour of the applicants without the necessity for an oral hearing, while coming to the impugned

conclusion that state protection was available to them in their country of origin and that they had not advanced a serious ground for considering Georgia not to be a safe country of origin for them.

49. For the avoidance of doubt, while there was some criticism of the failure to have an oral hearing, there was no challenge to that aspect of the process and no complaint was pleaded in that regard.

Discussion

50. It has been necessary to set out the above factual background in order to fully understand the arguments made by the parties before this Court.

51. The applicants submit that their claim for international protection is based on feared persecution arising out of the religious faith of I.A.’s parents. They also submit that the first named respondent’s finding that their fear of being persecuted was at a level of a reasonable chance and that this had a nexus to a section 8 ground is of particular relevance to the claim of a failure to cooperate.

52. The applicant places reliance on the words “that if, for any reason whatsoever” taken from the CJEU decision in M.M. referred to above to submit that there is no onus on the applicants to demonstrate anything before the duty of cooperation comes into play.

53. The applicant further submits that if the duty of cooperation had been respected in the manner contended for, then the decision “might have been different” having regard to the available country of origin material. The applicants sought to exhibit three documents to support this argument: a Freedom House Report on Georgia (2022); a Special Report of the Public Defender of Georgia (2022); and a Report of the Council of Europe published by Dunja Mijatović following her visit to Georgia from the 21st to the 24th of February 2022.

54. For some unexplained reason, it transpired in the course of the hearing that these reports had not been exhibited. However, extracts from those documents were referred to in the affidavits before the Court.

55. While this was less than satisfactory, the parties were in agreement that, insofar as they were relevant, the extracts in the affidavits could be referred to without reference to any other part of the reports, and the matter proceeded on that basis.

56. The ‘might have been different’ test is derived from the judgment of Barrett J. in X v. IPAT [2024] IEHC 551 where he said at paragraph 7: “I respectfully agree with counsel for Mr X that what appears to arise from the just-quoted answer is that it is for Mr X to demonstrate that had the duty of cooperation been respected (and it was not) the decision might have been different. That is a notably low hurdle for an applicant to vault successfully.” (Emphasis in the original.)

57. I was informed in the course of the hearing that this case is under appeal and judgment has been reserved by the Supreme Court. I am satisfied that this aspect of the matter only arises in the event that I find that there has been a breach of duty.

58. The respondents say that the applicants need to submit a serious ground for considering Georgia not to be a safe country of origin in their circumstances, and that they have failed to do so.

59. In the words of counsel for the respondents, the issue must be raised by the applicants, even in some “rudimentary way,” for the duty of cooperation to arise. They say that this duty then involves an obligation to assemble documents and information to substantiate the serious ground raised, and that there has been no breach of duty here.

60. The respondents place heavy emphasis on the last sentence of paragraph 20(ii) of A.A.I. in saying that the duty to cooperate cannot arise in a vacuum.

61. Reliance is also placed on S.H.I. v. IPAT (No. 2) [2019] IEHC 269, where Keane J. held at paragraph 35: “The applicant suggests that the tribunal should have gone further. I do not agree. I do not accept that the State's duty to cooperate with the applicant in assembling the elements necessary to substantiate his application extends to an obligation to go behind, or ‘tease out’, the applicant's own voluntary statements, whether provided in the context of a properly conducted interview or in writing through his legal representatives. After all, regard must also be had to the applicant's own shared duty of cooperation in the ascertainment of the relevant facts. As Dunne J observed in A.C. v Refugee Appeals Tribunal & Anor [2007] IEHC 369 (Unreported, High Court, 19th October 2007), the applicant is not a passive participant in the process.”

62. The respondent also submits that section 33 of the 2015 Act, referred to above, must be read in light of Council Directive 2005/85/EC (“the Procedures Directive”), from which it originates.

63. Article 31 of the Procedures Directive states that a designated country may only be considered safe for a particular applicant if: “…he/she has not submitted any serious grounds for considering the country not to be a safe country of origin in his/her particular circumstances and in terms of his/her qualification as a refugee in accordance with Directive 2004/83/EC.”

64. Further, recital 21 of the Procedures Directive develops the rationale for this in the following terms: “The designation of a third country as a safe country of origin for the purposes of this Directive cannot establish an absolute guarantee of safety for nationals of that country. By its very nature, the assessment underlying the designation can only take into account the general civil, legal and political circumstances in that country and whether actors of persecution, torture or inhuman or degrading treatment or punishment are subject to sanction in practice when found liable in the country concerned. For this reason, it is important that, where an applicant shows that there are serious reasons to consider the country not to be safe in his/her particular circumstances, the designation of the country as safe can no longer be considered relevant for him/her.”

65. Recital 17 states: “A key consideration for the well-foundedness of an asylum application is the safety of the applicant in his/her country of origin. Where a third country can be regarded as a safe country of origin, Member States should be able to designate it as safe and presume its safety for a particular applicant, unless he/she presents serious counter-indications.”

66. “Serious counter-indications” appears to be synonymous with ‘serious grounds.’

67. This supports the contention that the duty to cooperate is strongly connected to the circumstances of the particular applicant under consideration and does not arise in some sort of theoretical way.

68. This appears to be consistent with the creation of a rebuttable presumption; the presumption of safety arises by reference to the general situation in a country of origin, after the statutory processes described above have been completed by the Minister, with an onus then shifting to the applicant to point to a reason, or basis, as to why this should not apply in their particular circumstances.

69. It does not seem to be in dispute that the applicants did not submit serious grounds for considering Georgia not to be a safe country of origin for them. What is contended for is that the ‘shared’ duty of cooperation means that there was an onus on the first named respondent to itself source relevant and up-to-date country of origin information in assessing whether Georgia was a safe country, particularly where the decision of the first named respondent referred to religion as a reason for fear of persecution.

70. The respondents point out that, in fact, the applicants did put forward some grounds as to why the safe country designation should not apply to them.

71. This is clear from the applicants’ interview answers quoted above. It is submitted that the arguments advanced were addressed and simply rejected by the Tribunal. Indeed, the Tribunal considered all of the country of origin material that was submitted to it. It is submitted that what the applicants are now trying to do is entirely recast the case that was made to the Tribunal, which is inappropriate for judicial review.

72. The respondents also rely on two further decisions with contrasting results. In M.M. v. IPO [2025] IEHC 118, Barr J. held at paragraphs 27-28: “Accordingly, I hold that while the first respondent found that the applicant was a member of the Gabooye clan, but did not consider whether he would face persecution or a risk of serious harm on that account, his decision was not deficient in that regard, as that case had not been made by the applicant. A

decision maker cannot be expected to consider and determine issues that are not raised by an applicant.

Given my finding on the extent of the material claim made by the applicant, the point concerning a failure on the part of the first respondent to obtain and consider up-to-date and relevant COI, and in particular his alleged failure to consider the UNHCR report of September 2022, falls away.”

73. A different result was arrived at in P.P. v. IPAT [2025] IEHC 134. In that case, the Tribunal was found to have fallen into error by failing to evaluate country of origin material that had been submitted by the applicants. Owens J. held at paragraph 55: “The law does not entitle participants in the asylum applications and appeals process to a perfect process or to a perfect hearing. The Tribunal is entitled evaluate the strength of any information provided by an applicant. Section 33 of the 2015 Act makes clear that the obligation is on an applicant for protection to ‘submit’ grounds which may meet the threshold test. P.P. and V.S. had a selfserving duty to put their best foot forward when they provided explanations at their interviews.”

Decision

74. I am satisfied that this application for judicial review is misconceived.

75. It is clear that at no point in the process of the international protection application, whether by reference to the questionnaire, the interviews or any documentation submitted, did the applicants suggest that state protection was unavailable because I.A.’s parents were Jehovah’s Witnesses.

76. Even though the IPO decision found that the applicants had not submitted any serious grounds for considering Georgia not to be a safe country of origin in their particular circumstances, the filed notices of appeal make no reference to such a claim. There is no basis to infer that this can be explained by reason of the fact that the ‘focus’ at that stage of the process was on the desire for an oral hearing. Nor can this rather glaring omission be disregarded by reference to the reservation of the right to submit “further grounds.”

77. No submission to this effect ever appears to have been made by the applicants until the application before this Court.

78. Further, it does not appear, even at this late stage, that the affidavits before the Court engage with the issue of the religious faith of I.A.’s parents and its connection with the lives of the applicants in any kind of concrete or substantive way.

79. I am satisfied that there is an onus on the applicants to at least identify or indicate ‘strong grounds’ or ‘serious counter indications’ in their particular circumstances before the presumption of safety becomes unsettled. While this is a low bar, it must be overcome.

80. It is only at that stage that the duty of cooperation can be said to arise. This is consistent with the wording of the Procedures Directive and the authorities: see M.M., A.A.L. and S.H.I. quoted above.

81. The emphasis placed by the applicants on the words “that if, for any reason whatsoever” in M.M. do not bear the weight being placed on them and have been taken out of the context in which they appear. That context refers to the “elements provided by an applicant” being incomplete. The very essence of cooperation requires a contribution from more than one party, and the reference by Owens J. in P.P. to an “obligation” to “submit” grounds is significant in this regard.

82. I also regard it as fundamental in an application of this type that, as Barr J. put it in M.M. v. IPO, a decision maker cannot be expected to consider and determine issues that have not been raised by an applicant.

83. I am also of the view that the duty of cooperation must be triggered by something particular to the applicant as that is the only way in which the discharge of the respondent’s obligations can be shaped by reference to the actual position of the applicant. The duty of cooperation cannot be a theoretical one.

84. In these circumstances, where I find that the duty of cooperation was not engaged, and therefore was not breached, I do not find it necessary to further consider the additional material, referred to on affidavit, in order to consider whether the decision might have been different had that material been available to the first named respondent.

85. I therefore refuse the application.

86. Having regard to the provisions of section 169 of the Legal Services Regulation Act 2015, it appears to me that the respondent is entitled to an order for costs in relation to these proceedings. I would propose to make such a costs order to be stayed for a period of two weeks from today’s date. If the applicants contend for an alternative order, they should indicate this to the respondent and the Court within that two-week period. The matter can then be relisted for hearing on that issue with the stay to continue until further order.