High Court quashes asylum decision due to unaddressed bias concerns and flawed interview process under s. 35 of 2015 Act.

THE HIGH COURT

JUDICIAL REVIEW

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

[2026] IEHC 102

Record No. 2024 1341 JR

BETWEEN

N. AND N. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND N.)

AND

AN INTERNATIONAL PROTECTION OFFICER

FIRST RESPONDENT

AND

THE MINISTER FOR JUSTICE

SECOND RESPONDENT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

NOTICE PARTY

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 25th day of February, 2026

INTRODUCTION

1. The Applicants, Zimbabwean nationals of Ndebele ethnicity, came to Ireland and applied for international protection, pursuant to s. 15(l)(a) of the International Protection Act, 2015 (hereinafter “the 2015 Act”) on the 26th of January, 2023. Upon making her application, the First Applicant was, by operation of s. 15(3)(a) of the 2015 Act, deemed to have made an application for international protection on behalf of the Second Applicant (her minor daughter).

2. The Applicants’ claim is grounded on a fear of persecution or serious harm at the hands of a Zimbabwean national of Shona ethnicity, the absence of State protection by reason of his political connections with Zanu-PF (the ruling political party) and a shared Shona ethnicity with police officers.

3. In these proceedings the Applicants contend that the International Protection Office (hereinafter the “IPO”) conducted a flawed examination process in their case due to cultural insensitivity, perceived bias, oppressive interviewing, failure to consider representations and unsustainable State protection findings. These claims arise in circumstances where the interview pursuant to s. 35 of the 2015 Act was conducted by a person (hereinafter “the Panel Member”) believed to be a Zimbabwean national of Shona ethnicity. The First Applicant maintains that due to deep ethnic tensions between Shona and Ndebele groups in Zimbabwe and because both her abuser and the police were Shona, she felt pressured, constrained and unable to speak openly, experienced re-traumatisation and found the questioning during interview oppressive.

4. It is not disputed by the Respondents that the IPO interview was conducted by a Zimbabwean national of Shona ethnicity although it is also maintained that no enquiry has been conducted to establish the Panel Member’s actual nationality and ethnicity.

The Respondents’ position is that a panel member’s nationality and ethnicity are not factors which should undermine the lawfulness of the interview process, absent evidence of actual bias.

BACKGROUND

5. The Applicants are a mother (Ndebele ethnicity) and her 10-year-old daughter from Zimbabwe. It is claimed that the First Applicant suffered severe domestic and sexual violence from a boyfriend who was a Zanu -PF informant. She sought help from police but was refused protection, allegedly due to her abuser’s political connections and the police officer’s shared Shona ethnicity. She fled Zimbabwe in January, 2023 with her daughter and applied for protection in Ireland.

6. In the IPO Questionnaire (IPO2) completed by the First Applicant on the 26th of January, 2023, she did not disclose her ethnicity. While she detailed abuse at the hands of her former boyfriend and an absence of State protection because of his connections with the police, she did not refer to his Shona identity. Nor did she identify her ethnicity as a basis for her fear of persecution, although in her application for legal aid services she clearly signalled her ethnicity as Ndebele, identifying it as the language she spoke.

This was also reflected in documents submitted on her behalf in support of the protection claim in advance of her interview.

7. The First Applicant was interviewed pursuant to s. 35(1) of the 2015 Act on the 10th of June, 2024. Although the First Applicant had instructed a solicitor in relation to her protection claim, she attended the interview alone and without a legal representative.

8. The interview was conducted by a panel member who is a Zimbabwean national of Shona ethnicity (or at least this is not disputed in these proceedings). At the beginning of the interview, the Panel Member introduced herself by name to the First Applicant.

The interview lasted over three hours and was conducted in English. During the interview, the Panel Member kept a record of her questions and the answers given by the First Applicant. Many of the questions recorded are in standard form familiar to me from other cases. Periodically, the Panel Member read back her record of the First Applicant’s answers to questions, giving her an opportunity to correct inaccuracies.

Changes requested were noted down.

9. The First Applicant was asked at Q. 18 what her ethnic group was. She confirmed that she was Ndebele. Although she named her abusive partner and stated that he was an informant for Zanu-PF with police connections, she did not disclose that he was Shona at any stage during the interview. Having detailed her experiences of domestic abuse, she was asked by the Panel Member at Q. 69:

“In Zimbabwe there are local service providers that offer confidential services and at the same time assist victims and survivors of abuse and violence, and these include Msasa (sic) Project and Zimbabwe Women Lawyers Association.

Can you explain why you never sought help there?”

10. In her response, the Applicant said that she was not aware of these services and did not have money to access them.

11. She was then asked at Q. 71:

“Furthermore, you stayed in Bulawayo and Zimbabwe is a social collectivist country, meaning if you were not aware of the services there would always be ways that such information would have reached you, that is through other people, also given the campaigns being launched to raise awareness by the State through media channels. Would you like to comment?”

The First Applicant responded that she was not vocal about her situation and could not come out to seek help.

12. When questioned about her former boyfriend’s connection with Zanu-PF, the First Applicant confirmed that he was an informant prompting the Panel Member to state:

“In Zimbabwe an informant does not carry an influential status. Would you agree or would you like to comment?”

13. At Q. 94 the Panel Member stated:

“Zimbabwe has laws in place that are designed to address violence and abuse and in addition to this Zimbabwe has signed and accepted a number of international covenants that address violence and abuse against women. This in itself demonstrates Zimbabwe’s effort to tackle issues related to Gender Based Violence and abuse on its land. Do you have anything to say or would like to comment?”

14. In response, the First Applicant stated that they made measures:

“but it does not reach to everyone within the country and at times your circumstances determines the kind of assistance you can get.”

15. The First Applicant raised no concerns in relation to the conduct of the interview during the interview, despite being asked standard questions designed to give her an opportunity to raise any issue she might have. Specifically, at the end of the interview, the First Applicant was asked the standard question as to whether she was happy with the conduct of the interview. She answered in the affirmative.

16. The First Applicant contacted her solicitor shortly after the interview concluded to raise concerns about her interview. She told him that she felt unable to raise her concerns regarding the nationality and ethnicity of the Panel Member during the interview. On instructions, the First Applicant’s solicitor wrote to the IPO on the 11th of July, 2024, setting out the First Applicant’s concerns and requesting a fresh interview. It is appropriate to set out the terms of this letter in full (anonymised) as follows:

'URGENT RE: [NAME AND REFERENCE NUMBER REMOVED TO MAINTAIN ANONYMITY OF APPLICANTS]

Dear Sir/Madam,

We are writing to you on behalf of our above-mentioned client, who had her IPO personal interview on the 10th of June 2024. Our client has alerted us to a concern she had with the interview, which we believe is a fundamental breach of fair procedure by the IPO. The applicant is a national of Zimbabwe and is of the Ndebele ethnic background. As you will no doubt be aware, there are very serious tribal divisions, animosity and conflict within Zimbabwe, predominantly between the Ndebele people and the Shona ethnic group, with the Shona being the majority group in that country.

The applicant’s case involves very serious sexual abuse at the hands of a Shona speaker, a member of the Shona ethnic group. Further to this the applicant's efforts at seeking justice for this sexual abuse was stymied and ultimately thwarted by ethnically Shona police officers, so she has very serious sensitivity and trauma issues related to the Ndebele/Shona relationship.

The IPO interview was conducted we believe by a Ms. X, who the applicant believes is a native of Zimbabwe and a member of the Shona ethnic group. She has formed this opinion due to the name, accent and manner of speech of Ms .X.

The applicant is making no claim as to the competence of Ms. X. , but does state that she felt pressurised in the interview and constrained in what she could say, in particular in a negative sense in relation to how she believes the Ndebele people are treated by the Shona ethnic majority group, and in particular how she herself was treated, why she felt that occurred and why she was not able to achieve justice or protection in her home country.

Ms. [Applicant’s surname] believes the interview was conducted in an oppressive manner, which restricted her ability to properly present her case, to the extent that she did not feel capable of even outlining that she was not happy with how the interview had been conducted, when asked at the end of the interview by the IPO officer Ms. X in relation to same.

We are of the opinion that if it is the case that Ms. X is in fact of Zimbabwean/Shona origin, the IPO has acted in an inappropriate and prejudicial manner in relation to the applicant's section 35 interview. We trust that no offence or insult will be caused by our correspondence notwithstanding its sensitive nature, and that it will be understood that we are duty-bound to investigate this important matter on behalf of our client.

If it is the case that the applicant is correct about the ethnic background of the IPO officer Ms. X, clearly it would not have been procedurally fair for the IPO to have a native of the applicant's own country of origin conduct her section 35 interview, and particularly a member of the ethnic group with which the applicant's own ethnic group are in a long term and well documented sectarian conflict, and which said conflict plays a major role in the applicants own case.

Given that there is strong likelihood that the applicant would correctly be able to identify a national of her own country, and the ethnic background of such a person, and on the assumption that the applicant is correct, the IPO have exposed the applicant to considerable re-traumatization in the manner that the section 35 interview was conducted, as per paragraph 277 of the Istanbul Protocol 2022 which states as follows:

'Re-traumatization can manifest as anxiety about the interview, wanting to avoid discussing particular incidents, minimizing conversation, re-experiencing physical or emotional symptoms, symptoms of hyperarousal or insomnia, numbing of general responsiveness or becoming overwhelmed with memories and emotion. Retraumatized individuals may mobilize strong defences that result in profound ·withdrawal and affective flattening during examination or interview; alternatively, they may express hostility and anger'. Par 2 77 Istanbul Protocol 2022.

On the assumption that the applicant has correctly identified the IPO officer Ms. X as being of Zimbabwean/Shona descent, we submit that the applicant should be given a fresh section 35 interview, and have the entirety of the interview as conducted on the 10 of June set aside. In the foregoing circumstances, it is our submission that the Section 35 interview was conducted in a prejudicial and legally defective manner, and we therefore call on you to confirm that you will withdraw the said section 35 interview, as conducted on the 10th of June 2024, and will conduct a new section 35 interview.

If we can be of any assistance in clarifying or advancing matter in any way, please do let us know. "

17. Despite its detailed terms, the IPO never responded to this letter.

18. Notwithstanding the terms of this correspondence and without responding to it, the s.

39 report of was subsequently prepared by the Panel Member without reference to it.

On the 6th of September, 2024, the draft findings prepared by the Panel Member were adopted without change by an IPO officer in a finalised s. 39 Report which accepted that the Applicants were of Zimbabwean nationality and from the Ndebele tribe.

19. In the s. 39 Report as drafted by the Panel Member, it was found, inter alia, that it was credible that the First Applicant suffered domestic violence but it was not credible that she could not obtain State protection in Zimbabwe. In this regard, the draft s. 39 report prepared by the Panel Member referred to local service providers in Zimbabwe which she claimed offered confidential services including the Msasa Project and the Zimbabwe Women Lawyers Association.

20. Reliance was also placed on the fact that Zimbabwe was a “social collectivist country”

as stated by the Panel Member as a basis for concluding that the Applicants could access information in relation to supports in Zimbabwe. It was again asserted as fact that “in Zimbabwe informants do not have a direct or significant impact on public opinion and

decision-making and therefore do not carry an influential status in the society.” Having regard to these and other factors, the credibility of the Applicants’ claim insofar as access to State protection was concerned was not accepted. Therefore, it was concluded that she had a well-founded fear and risk of serious harm but State protection was available.

21. It bears note that no country-of-origin information (hereinafter “COI”) is identified in the draft report or in the exhibited materials to support the existence and availability of the “Msasa Project” services. It was confirmed during the hearing before me that the Msasa Project does not exist and the name given is likely misspelled and should be a reference to “Musasa” (the name of a non-governmental organisation in Zimbabwe working in the area of violence against women and girls).

22. Similarly, nothing has been identified in relation to the status of informants in the material referenced in the s. 39 report, nor indeed is it clear what significance attaches in COI to the assertion of the Panel Member during interview and repeated in the draft s. 39 Report as adopted that Zimbabwe is a “social collectivist” country in the context of State protection from gender based domestic violence. In the draft s. 39 report prepared by the Panel Member, it was recommended that the Applicants be refused refugee status and subsidiary protection. The draft s. 39 Report made no reference to the letter of the 11th of July, 2024 and the concerns raised post interview in relation to the Panel Member’s nationality and ethnicity.

23. Likewise, the s. 39 Report adopted by the International Protection Officer (Mr. B) made no reference to the letter from the First Applicant’s solicitor. Even spelling (specifically Musasa) and typographical errors contained in the draft report were reproduced in the s. 39 Report as adopted and I could find no material difference between the substance of report in draft as prepared by the Panel Member and the Report adopted by the International Protection Officer. It bears emphasis that assertions in relation to the status of informants and Zimbabwe as a social collectivist country were adopted in full, without amendment, explanation or any apparent interrogation, as was the reference to the non-existent Msasa Project.

24. On the 24th of September 2024, the Minister also refused Permission to Remain. In the examination of file conducted under s. 49(3) of the 2015 Act, reliance was placed on the findings contained in the s. 39 Report as prepared by the Panel Member and adopted without change by the International Protection Officer. Similarly, no reference was made to the letter of complaint in the Minister’s decision.

25. These negative decisions were notified to the Applicant on the 25th of September, 2024 in accordance with s.40 of the 2015 Act.

26. An appeal to the International Protection Appeals Tribunal (hereinafter “the Tribunal”)

was filed on the 16th of October, 2024, expressed to be “without prejudice” to judicial review proceedings. In the appeal filed, the Applicants challenged IPO findings on credibility, State protection, assessment of COI and on grounds of a failure to apply benefit of the doubt and a failure to consider past persecution properly.

LEGAL FRAMEWORK

27. By definition a “refugee” is a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside his or her country of nationality (or if stateless, his or her country of habitual residence) and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country (s. 2 of the 2015 Act). A “person eligible for subsidiary protection” is a person (from outside the EU and not entitled to refugee status) in respect of whom substantial grounds have been shown for believing that he or she, if returned to his or her country of origin, would face a real risk of suffering serious harm and who is unable or, owing to such risk, unwilling to avail himself or herself of the protection of that country. Accordingly, an entitlement to protection is inextricably tied with fear and lack of protection in a claimant’s country of origin.

28. Under s. 8 of the 2015 Act recognised reasons for persecution include ethnicity and membership of a group determined by its cultural, ethnic or linguistic identity, common geographical or political origins or membership of a particular social group sharing innate characteristics or a common background that cannot be changed or a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. The concept of political opinion is defined (s. 8(1)(e) of 2015 Act)

to include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution and to their policies or methods. Thus, ethnicity, nationality and conditions in a claimant’s country of origin are core elements in a protection claim making these factors particularly important.

29. Section 28 of the 2015 Act requires an international protection officer, in co-operation with an applicant, to assess the relevant elements of the application. This assessment is conducted based on the applicant’s statements and documents submitted in relation to a range of prescribed factors including background, identity, nationality and country of previous residence. Under s. 28(4) the assessment by the international protection officer of an application must be carried out on an individual basis and shall include taking into account 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; 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 and the individual position and personal circumstances of the applicant.

30. The 2015 Act requires that regard be had to the general circumstances prevailing in the country on the basis of precise and up-to-date obtained from relevant sources such as the High Commissioner and the European Asylum Support Office (ss. 32).

31. Section 34 of the Act provides for the examination of the application for protection requiring that an international protection officer shall examine each application for the purpose of making a recommendation under s. 39.

32. As part of the examination s. 35(1) provides that the international protection officer shall cause the applicant to be interviewed.

33. Section 35(3) provides:

“The Minister, for the purpose of ensuring that personal interviews are conducted under conditions that allow the applicant to present the grounds for his or her application in a comprehensive manner shall—

(a) ensure that the persons who conduct the personal interviews are sufficiently competent to take account of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so,”

34. Section 35(11) allows the international protection officer to take into account any representations made following a personal interview provided that such representations are made prior to the preparation of the report under s. 39(1) in relation to the application. Section 35(12) requires the preparation of a report by the Panel Member following the conclusion of the personal interview.

35. Section 39(1) provides that following the conclusion of an examination of an application for international protection, the international protection officer shall cause a written report to be prepared in relation to the protection claim under examination.

Under s. 39(2) of the 2015 Act, the s. 39(1) report is required to refer to the matters relevant to the application which are raised by the applicant in her application, preliminary interview or personal interview or “at any time before the conclusion of the examination”.

36. Where an international protection officer has prepared a report under s. 39, or caused such a report to be prepared, the Minister is required under s. 40(1) of the 2015 Act to notify, in writing, the applicant concerned and the applicant’s legal representative (if known) of the officer’s recommendation referred to in s. 39(2)(b).

GUIDANCE AND BEST PRACTICE

37. In addition to the statutory framework, the parties referred me to the UNHCR's “Guidelines on International Protection: Gender-Related Persecution” (hereinafter “UNHCR Guidelines”) issued by the UNHCR pursuant to its mandate, as contained in the Statute of the Office of the UNHCR, in conjunction with Article 35 of the 1951 Convention relating to the Status of Refugees and Article II of the 1967 Protocol and the International Protection Office's “Information Booklet for Applicants for International Protection” (Rev. 4, 2 November 2022)(IPO1) (hereinafter “IPO Information Booklet”).

38. The UNHCR Guidelines are expressed as being promulgated within the context of Article l A(2) of the l95l Convention and/or the 1967 Protocol for the purpose of providing legal interpretative guidance for governments, legal practitioners, decision makers and the judiciary.

39. Paragraph 35 of the UNHCR Guidelines state:

“Persons raising gender -related refugee claims, and survivors of torture or trauma in particular, require a supportive environment where they can be reassured of the confidentiality of their claim. Some claimants, because of the shame they feel over what has happened to them, or due to trauma, may be reluctant to identify the true extent of the persecution suffered or feared. They may continue to fear persons in authority, or they may fear rejection and/or reprisals in their family and/or community”.

40. Against this background, para. 36 of the Guidelines identifies measures which assist in ensuring that gender related claims of women are properly considered in the refugee status determination process. The Applicants place reliance on para. 36(iv) which advises that:

''An open and reassuring environment is often crucial to establishing trust between the interviewer and the claimant, and should help the full disclosure of sometimes sensitive and personal information. The interview room should be arranged in such a way as to encourage discussion, promote confidentiality and to lessen any possibility of perceived power imbalances."

41. The possible requirement for a second and subsequent interview in the case of victims of sexual violence is recognised at para. viii. Paragraph 36(ix) states that where it is envisaged that a particular case may give rise to a gender-related claim, adequate preparation is needed, which will also allow a relationship of confidence and trust with the claimant to be developed, emphasizing the importance of reassuring a victim.

42. The IPO Information Booklet states that they will make the personal interview “as sensitive and reassuring as possible” (paragraph 4.12). It is further asserted that they will take account of “any vulnerability” that is mentioned by an applicant in their application or during the examination process (paragraph 4.15). At para. 4.5.11 it is stated that the applicant may make representations in writing to the IPO in relation to any matter relevant to its examination of the application. While it is indicated that it is desirable that any such representations are made before or during the interview it is also expressly stated that the IPO:

“may also take into account representations made after the interview provided that they are submitted before the report is completed in relation to the application.”

43. These guidance documents do not create legally binding obligations but are of assistance in assessing whether the personal interview conducted under s.35 has been conducted under conditions that allow the applicant to present the grounds for her application in a comprehensive manner in the light of the personal or general circumstances surrounding the application, including the applicant’s cultural origin or vulnerability, insofar as it is possible to do so. By prescribing for the conduct of interviews under conditions conducive to a comprehensive presentation of an applicant’s circumstances under s. 35(3) of the 2015 Act, it seems clear that the Legislature intended that interviews would be conducted sensitively and in a manner which is as reassuring as possible taking account of the vulnerabilities of an applicant and that panel members would be assigned in a manner which respects this objective insofar as it is possible to do so.

PROCEEDINGS AND EVIDENCE

44. By ex parte order (O’Higgins J.) made on the 6th of December, 2024, the Applicants were granted leave to seek relief quashing the IPO report and recommendation, the Minister’s refusal of permission to remain and the s. 40 notification together with remittal of the case for fresh consideration. The proceedings were grounded two affidavits from the Applicants’ solicitor and an affidavit sworn by the First Applicant.

45. In the first of two affidavits grounding the proceedings, the Applicants’ solicitor confirmed that the First Applicant sought to alert him to a concern she had in relation to the interview immediately after the interview. He explained that it was several weeks before he could consult with her in relation to the issues faced but once he heard her concerns, he believed there to have been a fundamental breach of fair procedures by the IPO. He referred to the First Applicant’s nationality and ethnic background and his knowledge of well documented, very serious tribal division, animosity and conflict within Zimbabwe, predominantly between the Ndebele people and the Shona ethnic group, with the Shona being the majority group in Zimbabwe. He noted that the First Applicant’s case involved very serious sexual abuse at the hands of a Shona person and her efforts at seeking justice were stymied and ultimately thwarted by ethnically Shona police officers. He averred as to his understanding, based on his instructions, that the First Applicant had very serious sensitivity and trauma issues related to the Ndebele/Shona relationship.

46. The Applicants’ solicitor further confirmed that the First Applicant told him that she believed the Panel Member who conducted the IPO interview to be from Zimbabwe and a member of the Shona ethnic group because of her name, accent and manner of speech. He also confirmed that she reported to him that she felt pressurised and constrained in what she could say, in particular in a negative sense in relation to how she believes the Ndebele people are treated by the Shona ethnic majority group and how she was treated and why she felt that occurred, specifically why she was not able to achieve justice or protection in her home country. He confirmed that she told him that she believes the interview to have been conducted in an oppressive manner which restricted her ability to properly present her case, to the extent that she did not feel capable of even outlining that she was not happy with how the interview had been conducted when asked at the end of the interview by the Panel Member in relation to same.

47. The Applicants’ solicitor exhibited his correspondence with the IPO in relation to his concerns, to which no response was received. He further referred to notification of a

decision on the application, without reference to the letter raising concerns and he exhibited the various IPO reports under s. 39, the examination of file under s. 49(3) and the notice pursuant to s. 40 of the 2015 Act. In addition, he referred to 11 substantive appeal decisions available on the decisions archive of the Tribunal in 2024 in respect of Zimbabwe in cases involving domestic violence. He confirmed that in the majority of these cases it was generally accepted that State protection was not available in domestic violence cases in Zimbabwe.

48. In her own affidavit, the First Applicant set out her background which included domestic and sexual abuse, police refusal, threats and flight from Zimbabwe. She gave a brief account of her personal interview with the IPO on the 10th of June, 2024, when she was interviewed by a named lady (the Panel Member) believed by the First Applicant to be a native of Zimbabwe and a member of the Shona ethnic group. She referred to:

“very serious tribal divisions, animosity and conflict within Zimbabwe, predominantly between the Ndebele people and the Shona ethnic group”.

49. She explained that the Shona are the majority group in Zimbabwe and added that her ex-partner was also a Shona person, as was the police officer who refused to take a complaint of domestic violence from her and accused her of being intoxicated (when she says she was not). She deposed to the fact that she felt pressurised during the interview and constrained in what she could said, adding that she did not even feel capable of outlining that she was not happy with the interview.

50. Opposition papers were delivered in July, 2025. Opposition was grounded on affidavits from an Assistant Principal Officer in the IPO (KB) and a late supplemental affidavit of a second Assistant Principal Officer in the IPO (PH) after written submissions had been lodged on behalf of the Applicants. The International Protection Officer who signed the s. 39 Report did not swear an affidavit.

51. In the evidence adduced to ground opposition it was confirmed that no enquiry is made into the ethnicity of persons entering a contract for services with the Minister for Justice to act as Panel Members. It was not disputed that the Panel Member in question was of Shona ethnicity but it was contended that this did not objectively disqualify her from conducting interviews in respect of applications of Ndebele ethnicity. The allegation of “real bias” made against the Panel Member was deprecated “in the strongest possible terms.”

52. The procedure for assigning Panel Members for interviews was outlined. Assignments are made based on availability and without reference to the ethnicity nor the nationality of a Panel Member. It was pointed out that it is possible for applicants to make requests in advance of the s. 35 interview process in relation to the assignment of a Panel Member. It was confirmed that such requests are facilitated where appropriate and practicable to do so. It was pointed out that the process was not capable of being followed in this case where no request was made on behalf of the Applicants in advance.

Reliance was further placed on the fact that the First Applicant made no complaint at interview in relation to the Panel Members nationality or ethnicity but rather confirmed that she was “happy with the conduct of the interview”.

53. The Respondents relied on training, facilitated by the UNHCR, provided to panel members over 6 days which includes a module training panel members on how to avoid unconscious bias. From the material exhibited it appears that panel members are retained on a fee per case basis and they are required to attend training without payment.

From the material before me, it appears that panel members are required to declare conflicts or potential conflicts of interest to the IPO/ISD management immediately. The only example given of a conflict of interest in the material exhibited in relation to their job description, however, is work advising or representing persons in the international protection or leave/permission to remain process during the period they are assigned to the Panel.

54. The training documentation exhibited provides evidence that panel members receive some training in “cultural competence” defined as the ability to take into account the social and cultural conditions, norms and beliefs prevailing in the claimant’s milieu of origin in assessing the credibility or plausibility of their actions. This involves the ability to question one’s own cultural assumptions, a willingness to understand a perspective other than one’s own and a commitment to recognize diversity both between and within cultural groups. From the training materials, it appears the training also includes a component on cultural racism. Although the training materials identify factors affecting claimants as including fear and lack of trust and cultural background, there is nothing in the material in relation to recusal from a particular case in order to afford the interviewee, in so far as possible, conditions which allow for comprehensive presentation of their case having regard to social and cultural conditions, norms and beliefs prevailing in the claimant’s milieu of origin.

55. As for the letter of the 11th of July, 2024, received from the Applicants’ solicitor, it was confirmed on behalf of the Respondent that:

“this correspondence was discussed internally within the IPO and its contents were duly considered. However, the request for the IPO to re-schedule a second section 35 interview before a different Panel Member was considered entirely inappropriate, and it was not accepted that the Section 35 interview actually conducted was ‘prejudicial and legally defective’, as contended by the Applicants’ solicitors at the conclusion of the said correspondence”.

56. It is not clear from this affidavit with whom the correspondence was discussed internally and on what basis it was concluded that the request was “entirely inappropriate” nor indeed why there was no response to the Applicants’ solicitor’s correspondence. It is not even clear that the deponent was party to the discussion and what his means of knowledge was.

57. When it was pointed out in the written submissions in support of this application filed on behalf of the Applicants in October, 2025, that the Applicants’ complaint in these proceedings was that the concerns were not considered by the IPO before he concluded the s. 39 report and this complaint was addressed only by a vague averment that it had been considered “within the IPO”, the Respondents sought to adduce further affidavit evidence. An application to admit same was made to me at the hearing.

58. As the further affidavit sought to be admitted in evidence was sworn on the 26th of November, 2025, some two months in advance of the hearing date, I was satisfied to admit it on the basis that there had been adequate opportunity afforded to the Applicants to consider it, there was no indicated requirement to respond to same on behalf of the Applicants and in circumstances where I considered, in the interests of justice, that any

decision I make in these proceedings should be properly grounded in best evidence as to the true facts. Having admitted the late affidavit, however, I am compelled to observe that it is more notable for what it omits than what it states.

59. In the said further affidavit, a second Assistant Principal Officer (PH) referred to the written submissions on behalf of the Applicant and, without averring to his own role in the process or his means of knowledge, stated:

“For completeness and the avoidance of any doubt, I therefore wish to confirm that [name of the International Protection Officer] was indeed aware of the Applicant’s request for a fresh interview at the time he completed the Recommendation (and the basis for same), but he was nonetheless satisfied to complete the Recommendation based on the section 35 interview as conducted by Ms. X . As a matter of course, correspondence which is sent in to the International Protection Office by solicitors on behalf of an applicant prior to completion of a Section 39 Recommendation is placed on file, and is available to the International Protection Officer responsible for completing the relevant recommendation.”

60. Notably, the affidavit does not confirm that the International Protection Officer was part of the “internal discussion” that decided the request for reassignment was inappropriate. The averment that correspondence is placed on the file as a matter of course and is available does not confirm that the letter in question was in fact placed on the Applicants’ file nor that it was considered by the International Protection Officer, despite the very specific complaint which prompted the filing of the Affidavit.

61. In their opposition to these proceedings, it has not been disputed on behalf of the Respondents that recent Tribunal decisions in 2024 (at the time of the IPO examination

in this case) generally accepted that State protection is not available in circumstances of domestic violence cases from Zimbabwe.

ANALYSIS AND DECISION

Overview

62. The Applicants challenge the lawfulness of the IPO process on several grounds but at the heart of these proceedings is the contention that having a Zimbabwean/Shona Panel Member for a vulnerable Ndebele applicant was so inappropriate and insensitive as to constitute a breach of fair procedures and to be in breach of the requirements of s. 35(3)

of the 2015 Act in providing for interview conditions which facilitate presentation of an application by a claimant in a comprehensive manner in view of the applicant’s cultural origin and vulnerability.

63. It is further contended on behalf of the Applicants that the process is flawed by reason of real or perceived bias maintaining that a reasonable person would apprehend bias given shared nationality with the Panel Member, the Panel Member being likely of the rival dominant ethnic group and the Applicant’s persecution being directly tied to Shona authorities and a Shona abuser. In addition, complaint is made that there has been a failure to consider post-interview representations and that the IPO proceeded to make a decision without considering material representations.

64. Finally, it is contended that there has been a flawed State protection assessment in circumstances where COI indicates police impunity, systemic gender-based violence and poor protection. In this regard, it is argued that the IPO relied on irrelevant notions of “social collectivism” and improperly treated NGOs as being able to provide “State protection”. Reliance is placed on the fact that the Tribunal generally does not find State protection available in Zimbabwean domestic-violence cases to demonstrate the frailty of the decision in this case.

65. A distinct issue arises as to whether it is appropriate to intervene by way of judicial review in circumstances where a full appeal lies to the Tribunal. In relation to this issue, I am satisfied that insofar as the complaints raised relate to the failure to provide an interview in accordance with law, that a full appeal is not an adequate remedy. It is appropriate to address this issue first.

Obligation to Exhaust Remedy by way of Statutory Appeal

66. It is important to recall the difference in statutory function between the s. 35 personal interview conducted by an International Protection Officer in the examination of an applicant’s case under s. 34 as part of the initial assessment of the protection claim and the appeal to the Tribunal under s. 42 of the 2015 Act. The interview is used to gather facts, clarify inconsistencies and allow the applicant to explain the grounds of their claim. It is an investigative process.

67. In contrast, the appeal to the Tribunal is adjudicative and involves a challenge to the International Protection Officer’s report and recommendation. While the appeal hearing is de novo and the Tribunal conducting an oral hearing may receive and consider evidence, the introduction of new evidence at appeal may have consequences for the fair functioning of the process. This is manifest in terms of the ability to conduct further investigations in respect of new material. Further investigations are open at first instance investigative stage but not readily facilitated or possible at adjudicative, appeal stage.

68. A further example of an impact on the fairness of the process is illustrated by reference to the approach to the assessment of a claimant’s credibility on appeal. Frequently, as reflected in decisions of the Tribunal, a failure on the part of an applicant for international protection to put forward evidence which was or ought to have been available before or at interview stage, is assessed as a negative credibility factor when belatedly introduced at appeal stage. Accordingly, if it were to be established that the interview process was conducted otherwise than in accordance with law such that an applicant felt unable to present their case comprehensively, it is questionable to what extent the availability of an appeal to the Tribunal fully cures a consequential unfairness of process. It is relevant in this context that the record of the interview is not only central to the first stage assessment but continues to be central to the assessment of the evidence at appeal stage. The interview is a foundational part of the process.

69. If the interview in this case was not conducted in accordance with law and in consequence a material part of the claim was not considered, then in my view the entire process is tainted in a manner which cannot be completely cured on appeal to the Tribunal. The decision in Stefan v. Minister for Justice [2001] 4 I.R. 203, [2001] IESC

92 supports the availability of a remedy lies by way of judicial review in respect of a

decision of a first instance decision maker where, in consequence of an illegality in the process, a material part of the claim was not considered at first instance.

70. Relying on Stefan, I am satisfied that the Applicants are not debarred from maintaining proceedings by way of judicial review because of any failure to exhaust the statutory appeal to the Tribunal.

71. While a different decision might well be made on appeal in relation to the question of State protection and an appeal constitutes an adequate remedy insofar as the assessment of COI in this regard is concerned (in line with decisions in cases such as E.S.O. v. IPAT & Ors. [2023] IEHC 197), in my view the consequence of any failure to give a comprehensive account of the claim, due to an established unlawfulness in the assessment process by reason of the manner of interview conducted, has the potential to taint the entire process including the appeal and may be irredeemably unfair to the claimant and is therefore amenable to challenge in judicial review proceedings.

Failure to Consider Concerns

72. The requirements of fair procedures and constitutional justice are tailored to the facts and circumstances of each decision-making process. The assessment of a claim for protection requires consideration of the circumstances in the claimant’s country of origin to establish whether the claimant has a genuine fear of persecution or serious harm, from which State protection is not available. Of the nature of international protection claims, therefore, concerns pertaining to ethnicity and membership of a group determined by its cultural, ethnic or linguistic identity, common geographical or political origins or membership of a particular social group (as set out in s. 8(1) of 2015 Act and referred to above) are often of central importance.

73. Accordingly, while the nationality and ethnicity of a decision-maker is not a relevant consideration in most decision-making contexts, where issues pertaining to ethnicity and nationality in respect of countries of origin are central to the assessment process in an international protection claim, then the nationality and ethnicity of the person conducting an interview and preparing a draft report as part of an examination process has the potential to assume a special significance if there are concerns relevant to the protection claim connected with nationality or ethnicity.

74. Statutory expression has been given to the requirement as a matter of constitutional justice and effectiveness to tailor the examination process so that harmful effects of experiences in the country of origin from which an asylum seeker has fled do not interfere with the proper assessment of the claim as apparent, inter alia, in:

(i) the imposition of a duty on the Minister to ensure that personal interviews are conducted under conditions which allow the claimant to present the grounds for his or her application in a comprehensive manner under s. 35(3) of the 2015 Act;

(ii) the shared duty of co-operation under s. 28(4) of the 2015 Act.

75. It seems to me that these provisions give expression, consistent with the UNHCR Guidelines, the IPO Information Booklet and the requirements of constitutional justice in the international protection context, to a requirement for interview conditions which facilitate an applicant in giving full information. The requirements of constitutional justice and fair decision-making also overlay the interpretation and application of these provisions.

76. In my view, the requirement to operate an examination process which is both free from bias (real or actual) and conducive to establishing relevant facts in protection claims involving cultural and social sensitivities and traumatic circumstances, is underscored by the fact that a claimant for international protection is entitled not only to an independent decision maker but also to an assessment process informed by independent and objective information. It is well established and UNHCR guidance stresses that

decision makers should rely on objective, reliable, balanced and traceable COI from multiple sources.

77. Indeed, the requirement for appropriate examination informed by precise and up to date information obtained from sources such as the UNHCR and EASO, as to the general situation prevailing in countries of origin, is central to the minimum standards on procedures in Member States for granting and withdrawing refugee status under EU law (see Articles 8(2) of Council Directive 2005/85/EC and 10(3) of Directive 2013/32/EU and transposed into Irish law by s. 32 of the 2015 Act). In recognition of the importance of COI as part of the examination of a claim for protection, COI Quality Standards for the assessment of sources and validation of information have been developed at both international and EU level. These standards are designed to ensure that information used is neutral, relevant, reliable, accurate and its source is identified so that the information may be evaluated.

78. I agree with the Respondents that the test of objective bias is robust and mere suspicion or conjecture is not enough, but the test is also informed. The test balances the need to avoid apparent unfairness with the risk of making decisions unworkable if even trivial concerns required recusal. An assessment of objective bias is made in its full factual and institutional context and with due regard for the requirement that “justice be seen to be done” having regard to external factors. In this case, external factors must include the situation in Zimbabwe, the shared country of origin of the asylum seeker and the Panel Member.

79. As clear from the decision of O’Donnell J. in Kelly v. the Minister for Agriculture [2021] 2 I.R. 624, [2021] IESC 23, the legal test for bias is consistent across public bodies. Nonetheless, its application is influenced by context and depends on the nature of the decision-making body. While the test is whether a reasonable, fair-minded and properly informed observer would have a reasonable apprehension that the

decision-making process was not impartial, I understand “properly informed” to embrace properly informed in relation to the cultural sensitivities and vulnerabilities at issue. Whereas objective bias depends on whether a reasonable person (not the affected person) in the circumstances would have a reasonable apprehension that an applicant would not have a fair hearing on the issues, in the context of a s. 35 interview and the nature of the protection process in this case, I am satisfied that the reasonable person is a person properly informed as to conditions in the country of origin of the protection seeker and the interviewer (where they share a country of origin) together with the safeguards applied in the country in which protection is sought to guard against bias in the decision making process.

80. In terms of the correct approach to be adopted to a complaint of the type raised, it also seems to me to be logical that the risk of a lack of objectivity in the information considered in the examination conducted as part of the international protection process must be greater where the person conducting the assessment of the claim is from the same country of origin as the protection seeker because in such circumstances a panel member’s assessment is more likely to be influenced or have the appearance of being influenced by their subjective knowledge, beliefs or experiences in their country of origin, all of which might be classed as external factors. The risk of an unconscious bias deriving from personal experiences of growing up on one side of a divided society is peculiar to persons coming from that divided society.

81. As set out above, there is an obligation to ensure, to the extent possible, that the IPO

decision making process facilitates an applicant in setting out the full details of their claim in so far as possible and that the process is protected from bias or perceptions or apprehensions of bias, including national, ethnic, political, or cultural bias in the examination process under the 2015 Act. In this context, it is relevant to my approach to the issues arising in this case, particularly in view of the language of s. 35(3) of the 2015 Act, that the risk factor which has prompted these proceedings is easily avoided by simply arranging for an interview to be conducted by a person other than a person from the same country of origin as the protection applicant.

82. The Respondents maintain that they do not inquire into nationality or ethnicity when recruiting panel members to conduct interviews as part of the international protection process. There is possibly very good reason for this. Of course, the fact that the Respondents do not make an enquiry into the nationality or ethnic background of panel members does not prevent training and instruction in relation to circumstances in which a panel member should recuse themselves including where, by reason of the identity of the claimant, participation by the panel member could impede the giving of a comprehensive account by the claimant. Nor does it preclude enquiry when a complaint

is raised in deciding whether there is any substance to the complaint and how to respond to it.

83. Ordinarily, a properly trained panel member reviewing papers in a case involving an applicant from their own country of origin should be able to readily identify whether the claim discloses factors which make it inappropriate for them to conduct the interview. I see no evidence, however, that training has been provided to IPO panel members in relation to circumstances in which they should recuse themselves.

84. It is accepted too that it will not always be obvious from the papers in advance, that a basis for concern is disclosed by virtue simply of a shared country of origin or the details provided in the initial application form. Sometimes information which gives rise to concern may only be elicited at interview or subsequently. Indeed, in this case there is no doubt that additional information was provided post interview which was not set out in express terms prior to or during the interview. As the questionnaire did not disclose the fact that the First Applicant’s abusive ex-boyfriend was Shona, the Panel Member in this case might not have been immediately alert to the risk that her participation in the process could undermine it.

85. In view of the automatic manner in which cases are assigned, the fact that the First Applicant did not elaborate on a complaint referrable to Shona ethnicity either before or during her interview and because it is not clear whether any training was provided to panel members in respect of situations when they ought properly recuse themselves from a particular case (other than cases of conflict of interest as defined in contract documentation), I make no comment on the failure of the Panel Member to advert to a concern herself when learning that the Applicants were of Ndebele ethnicity claiming a lack of State protection in respect of domestic violence. Indeed, if made aware of the full nature of the Applicants’ claims or of their concerns, the Panel Member might well have decided herself that she should request that the case be reassigned. As there is no evidence that she was ever made aware of the concerns which were subsequently communicated in clear terms to the IPO, I cannot know what her response to the complaint might have been or what bearing her response might have had on the IPO response to the concerns raised.

86. Once the letter raising concerns was received, these concerns required to be addressed by the IPO. Where, as in this case, the country-of-origin context demonstrates longstanding tribal and political divisions giving rise to significant, well-documented human rights concerns, a complaint that the conduct of an interview by a person from the same country of origin and the other side of a cultural, social or ethnic divide was conducted under conditions which did not allow the claimant to present the grounds for her application in a comprehensive manner under s. 35(3) of the 2015 Act and did not facilitate the First Applicant in giving full information or was biased, is a complaint which warranted consideration and substantive response.

87. The fact that the Panel Member who conducted the interview was from Zimbabwe, was of Shona ethnicity and might have allowed the interview process to be impacted by her background and identity, were matters of substantive concern and were not obviously trivial or tenuous matters. As such, if a further interview was not to be afforded the First Applicant in view of the matters raised in her solicitor’s letter, these concerns were nonetheless relevant considerations for the International Protection Officer in finalising his s. 39 report based on the interview conducted by the Panel Member and her draft findings. If aware of the concerns raised, consideration of those concerns ought to have led him to interrogate the record and draft report prepared by the Panel Member and to explain why he was satisfied to treat the concerns as unsubstantiated and to adopt the draft s. 39 report notwithstanding said concerns.

88. Furthermore, while there may be some tension between s. 35(11) which allows the international protection officer to take into account any representations made following a personal interview provided that such representations are made prior to the preparation of the report under s. 39(1) in relation to the application and s. 39(2) of the 2015 Act which mandates that the s. 39(1) report refer to the matters relevant to the application which are raised by the applicant in her application, preliminary interview or personal interview or “at any time before the conclusion of the examination”, it seems to me clear that the complaint in this case was not one which could be simply ignored.

89. Once a concern is identified in a coherent and appropriate way based on identified factors and relevant to the application, as it was in this case, constitutional justice and the requirements of fair decision-making require that consideration be given to the basis for concern and a reasoned approach taken in response. That did not occur in this case.

As already noted, there is no evidence before me that the Panel Member was made aware of the complaint and invited to make any response to it. Nor is there any satisfactory evidence that the IPO officer who adopted her draft report considered the concerns raised in the letter and was satisfied, notwithstanding those concerns, that it was appropriate to proceed based on the interview conducted and the draft report prepared. Indeed, no record of any consideration of the complaint has been produced.

On the contrary, the Respondents have addressed it in the barest of terms on affidavit, deprecating the complaint as “inappropriate”. This term is conclusory and unsupported by stated rationale.

90. It was pointed on behalf of the Respondent that the First Applicant has not deposed on affidavit as to what she would have said had she not been felt constrained during interview. In this regard, however, it is conspicuous that the First Applicant never told the Panel Member that her abusive ex partner and the police officers who refused to take her complaint were Shona, even though she contacted her solicitor immediately after her interview to express these concerns.

91. Given the nature of the issues the First Applicant raised with her solicitor shortly after the interview, I cannot discount that the failure to refer to connection between the lack of State protection and Shona ethnicity during the interview potentially substantiates a concern that she did not give full details of her claim because she believed her Panel Member not only also from Zimbabwe but also Shona. At the very least, this should have been considered in the context of the complaint made in deciding how to respond to it. Despite this, there is no evidence that the IPO ever considered whether the First Applicant’s failure to refer to Shona ethnicity as a factor in her claim was consistent with her claim that she was felt pressurised and constrained in what she could say, in particular in a negative sense in relation to how she believes the Ndebele people are treated by the Shona ethnic majority group, how she was treated and why she felt that occurred, specifically why she was not able to achieve justice or protection in her home country.

92. Had the concerns raised by the Applicant’s solicitor been considered by the International Protection Officer, he might be expected to have addressed in the s. 39 report adopted whether the complaint of pressure and constraint was substantiated on the facts of this case in view of the account given during interview and how it differed from later information provided through the Applicants’ solicitor or whether it was safe to proceed on foot of the interview conducted because all relevant information had been given.

93. As the International Protection Officer simply adopted the draft s. 39 report without any change and without any reference to the complaint made by the Applicants’ solicitor on their behalf, I cannot be satisfied that he considered the complaint at all before proceeding to adopt the draft s. 39 report in its entirety and without any elaboration. I am not persuaded that had the International Protection Officer been aware of the complaint, he would nonetheless have proceeded to simply adopt the draft s. 39 report without further interrogation and verification. Since the Applicants made to reference to the Shona ethnicity factor at interview, some scrutiny was warranted as to whether the process was safe to rely upon. There is nothing to confirm that any scrutiny occurred.

94. It seems to me that scrutiny of the interview record and the draft s. 39 report in view of the concerns raised should have put the International Protection Officer on enquiry as to the source of information relied upon in relation to assertions regarding the Msasa Project (which in fact does not exist and was misspelled in the interview record, the draft s. 39 report and the s. 39 report as adopted), the status of informants in Zimbabwe and the relevance of the assertion that Zimbabwe was a “social collectivist” country as stated by the Panel Member in the course of the interview and in her draft s. 39 report.

These are all matters which underpin the conclusions in the s. 39 Report but which are either not referenced at all or inadequately referenced in COI identified in the s. 39 Report adopted. These anomalies underscore the need for the International Protection Officer to interrogate the draft report once concerns were raised.

95. Of course, it does not require to be said that the proper way to demonstrate consideration of information received in the form of solicitor’s correspondence raising matters of substantive concern is either to respond to the letter or at least refer to it in the decision, addressing its contents to the extent necessary. The comments of Power J. in M.N.N. v.

Minister for Justice and Equality [2020] IECA 187 at paras. 92-95 (albeit in the context of a naturalisation application) are apposite. In the decision in M.N.N., the Court of Appeal gave detailed and authoritative explanation of how a public decision-maker (in that case the Minister acting under an “absolute discretion”) must document relevant considerations to comply with fair procedures and natural justice. The decision of the Court of Appeal in M.N.N. supports a conclusion that the record of the decision should show that all relevant material was put before and considered by the decision-maker, not merely that it “was on the file” somewhere. A core defect identified by Power J.

was the absence of evidence showing that the actual decision-maker (not processing officials) considered the relevant submissions. This same core defect undermines the integrity of the s. 39 process in this case.

96. Furthermore, the failure to address the complaint either by way of correspondence or in the terms of the s. 39 report adopted by the International Protection Officer is not cured by the affidavits filed in opposition in these proceedings. I cannot conclude based on a hearsay averment to the effect that correspondence is put on file and would have been available to the International Protection Officer, that the letter of complaint was in fact on the file and considered by the International Protection Officer in this case.

Even had the affidavits filed on behalf of the Respondent confirmed that consideration had been given to the correspondence by the International Protection Officer, it seems to me that this may not have been enough to permit continued reliance on the assessment process concluded on foot of the interview by the Panel Member in this case. In M.N.N. the Court of Appeal applied the principle from R v. Westminster City Council, ex parte Ermakov [1996] 2 All ER 302: the lawfulness of a decision must stand or fall on what is in the decision itself, not later clarifications stating as follows (at para.

94 of judgment of Power J.):

“I adopt the principle articulated by the Court of Appeal of England and Wales in R v. Westminster City Council ex p. Ermakov [1996] All E.R. 302, which confirms that when reviewing a decision, a Court must confine itself to the

decision itself and the reasons contained on its face and not permit an ex post facto rationalisation.”

97. The evidence in this case, in the absence of reference on the face of the s. 39 report to the concerns raised in the Applicants’ solicitor’s correspondence, does not establish that the terms of the concerns raised in the Applicants’ solicitor’s correspondence were brought to the attention of the International Protection Officer. Accordingly, I am not satisfied that, as a matter of probability, the International Protection Officer considered all relevant or material considerations in proceeding to adopt the draft s. 39 report and that it is safe to allow the decisions taken on foot of the interview conducted to stand.

98. I have concluded that the contents of the solicitor’s letter of 11th of July, 2024 raised matters of substance which required to be addressed. Due to the particular questions for determination, namely, whether it is established that the claimant is in fear or at risk due to the situation in the country of origin, potentially because of their particular ethnic, cultural or linguistic background, the involvement of other persons from the country of origin in the decision-making process has the potential to undermine the integrity of the process by hampering the claimant’s ability to present a claim in a comprehensive manner or giving rise to issues of bias (real or perceived).

99. Instead of addressing the concerns raised in clear and transparent terms, there was neither a response nor a reference of any kind to the letter in the s. 39 report in this case.

No explanation has been forthcoming as to why the concerns raised were considered “inappropriate” and there was no reasoned rejection of the complaint made on behalf of the Applicants as part of the impugned decision-making process. If the complaint was “inappropriate”, the reason this was not so obvious that it would have been apparent to the Applicants without some elaboration.

100. The fact that no explanation has been forthcoming potentially evidences a more fundamental lack of appreciation for the central role of the interview in providing an applicant for international protection with the opportunity to give full information in relation to their claim. It may also evidence a lack of proper awareness of the interconnection between national and ethnic identity, cultural origin and associated vulnerability and their potential impact on interview conditions and the ability of a claimant to give a comprehensive account in the international protection context.

101. I am sure that not every letter received by the IPO after an interview has concluded contains material which warrants substantive consideration or is of a nature which could impact on either the process or the decision. Whether a response is necessary falls to be considered on a case-by-case basis. Fear by reason of the situation in the country of origin and involvement of other persons from the country of origin in the decisionmaking process may both impact on the ability or willingness of a claimant to give full information or give rise to concerns in relation to bias (real or perceived) and therefore has the potential to undermine the integrity of the process. As the letter in this case raised substantive and serious concerns regarding the integrity of the process related to such concerns, it required to be directly addressed as a matter of fair procedures whether by means of correspondence in response or in the terms of the s. 39 report or some manner which demonstrated that it had been considered and explained the IPO’s approach to dealing with the concerns.

102. Once a concern is identified in a coherent and appropriate way based on identified factors (as it was in this case), it is then necessary that consideration be given to the basis for concern and a reasoned approach taken in response to the concern. A tailored response is required addressed to the concern identified. This did not occur in this case.

The fact that there was no response to the letter of 11th of July, 2024 and no reference is made to the letter in the s. 39 report as adopted undermines the fairness of the

decision-making process. An applicant having instructed the writing of such a letter could have no confidence in a process which proceeded as though the concerns had not been raised. In consequence the interview process is fundamentally tainted and the decisions made based on the flawed interview process are unsustainable in law.

103. The issues raised on behalf of the First Applicant combined concerns of bias with a complaint in relation to constraints on the First Applicant in giving her account. It is not necessary for me to decide whether the interview process was in fact in breach of s.

35 of the 2015 Act or tainted by bias, real or perceived (on an application of principles developed in cases such as O’Callaghan v. Mahon [2008] 2 I.R. 514, [2007] IESC 17 and Kelly v. Minister for Agriculture, Fisheries and Food & Ors. [2021] 2 I.R. 624, [2021] IESC 23) in circumstances where I am not satisfied that the complaint raised by their solicitor was properly considered.

104. Similarly, as the sustainability of the decision on the IPO on the question of State protection is one which could have been addressed on appeal to the Tribunal and does not need to be resolved to determine these proceedings, I do not propose to consider the complaint made in this regard any further.

CONCLUSION

105. For the reasons set out above, I have concluded that the Applicants have not been afforded an interview process in accordance with the requirements of s. 35 of the 2015 Act and/or constitutional justice. In consequence, the s. 39 report and s. 40 notification which issued based on the flawed interview process are unsustainable in law and should be quashed. I will hear the parties on the terms of the final order, if not agreed. This matter will be listed for mention after the expiry of fourteen days from electronic delivery of this judgment for finalisation of orders, if required.