High Court dismisses judicial review where Tribunal correctly applied credibility rules before considering missing documents under s.28(7).

THE HIGH COURT JUDICIAL REVIEW

Record No. 2024/1412 JR [2026] IEHC 64 Between:

I. M.

Applicant

-and-

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL and THE MINISTER FOR JUSTICE Respondents

Judgment of Mr Justice Cian Ferriter delivered on 11 February 2026

Introduction

1. In these judicial review proceedings, the applicant seeks to have quashed the decision of the first named respondent ("the Tribunal") of 18 October 2024 in which it affirmed a recommendation of the International Protection Office ("IPO") that the applicant be given neither a refugee declaration nor a subsidiary protection declaration.

Background

2. The background to the matter is as follows. The applicant is a national of Georgia, born on 19 October 2001. After his arrival in Ireland in April 2022, he made a claim for protection to the Minister for Justice (“the Minister”) on the basis that he ran the risk of suffering persecution in Georgia as a Russian speaker and had been discriminated against as such.

3. The applicant completed a questionnaire for the IPO. He was interviewed pursuant to section 35 of the International Protection Act, 2015 (“the 2015 Act”) and a memorandum of that interview was recorded and signed by him (“the s.35 interview”).

4. The applicant was informed by letter dated 1 March 2024 that the IPO recommended he should not be given a refugee declaration nor a subsidiary protection declaration. The IPO found that the Appellant had failed to establish a well-founded fear of persecution or a real risk of serious harm in Georgia.

5. By Notice of Appeal dated 8 August 2024 the applicant appealed the recommendation of the IPO to the Tribunal. In his notice of appeal, the applicant sought an oral hearing of his appeal, thus requiring the Tribunal to make a decision in accordance with section 43(b) of the 2015 Act as to whether it was not in the interests of justice to have a papers-only appeal but rather provide an oral hearing on his appeal (Georgia being deemed a safe country of origin and therefore the statutory default position being that his appeal would be on the papers only) and that this decision be notified to the applicant in advance of any decision on the appeal.

6. In a decision dated 18 October 2024 (“the decision”), which was communicated by letter of that date, the applicant was notified that pursuant to section 46 of the 2015 Act the Tribunal affirmed the recommendation of the IPO that he should be given neither a refugee declaration nor a subsidiary protection declaration. In the decision, the Tribunal also ruled that it was satisfied that the applicant was not entitled to an oral hearing of his appeal.

7. In order to set the issues arising on this judicial review in their appropriate context it is necessary, before coming to the terms of the Tribunal’s decision, to summarise the terms of the IPO’s recommendation and the grounds of the applicant’s appeal against that decision.

IPO Recommendation

8. The IPO officer, in her recommendation report dated 23 January 2024, found that the applicant's account of his alleged discrimination as a Russian speaker in Georgia lacked detail, was vague and contained inconsistencies, all of which undermined the credibility of his claim. In his evidence, he had only given detail of one unpleasant experience, at a café in his home town, arising from him being a Russian speaker. He said that this incident was the last straw for him and made him decide to leave. The IPO officer noted that when it was put to him that he had not referred to this incident in his questionnaire, he said he did not include it because there were so many cases and he just forgot about them. He claimed the incident in the café occurred in mid-April 2022, notwithstanding that he had left Georgia on 25 March 2022. It was put to him that Russian is a very common language in Georgia. His answer when put to him that Russian is a very common language in Georgia was held by the IPO officer not to have addressed the question put to him. The IPO officer stated that "The lack of detail, vague responses and inconsistent account regarding his claim is deemed to further undermine the credibility on this aspect of his claim". The IPO officer found that his answer, when given an opportunity to say anything further about his adverse experiences, was that "there were a lot of instances" which was a vague and non-specific answer.

9. His explanation for not reporting matters to the police was not accepted by reference to COI information. The IPO officer held that his account in relation to his passport was insufficiently detailed, contradictory and externally inconsistent; he initially said in his s. 35 interview that he had never had a passport, and then he said that he had a passport when he arrived in London from Georgia, but threw away his passport in London as he approached the officer to apply for international protection. The IPO officer concluded that she did not accept on the balance of probabilities that the applicant was discriminated against in Georgia due to his Russian heritage.

Appeal

10. On 15 March 2024 the applicant lodged a notice of appeal against the IPO recommendation. In his appeal notice he requested an oral hearing of his appeal. In the grounds of appeal releasing to this request, he contended that “the issues raised by the IPO can only appropriately be dealt with by way of oral evidence and submissions due to the nature of the reasons for refusal. No prejudice to the tribunal can be envisaged by the denial of an oral hearing to our client, yet the potential of prejudice to the applicant is clear. The denial of an oral hearing is not compatible with the principles of equivalence and effectiveness.”

11. The grounds of appeal denied that the applicant was inconsistent, vague and/or nonspecific about his claims. He said that his verbal testimony was the primary evidence which was another reason why an oral hearing was required. He advanced various arguments as to why his account should be accepted including the fact that “the applicant did not parrot an account out by rote is suggestive of a real life lived experience and not of a narrative which has been carefully rehearsed.” He contended that the IPO had failed to give him the benefit of the doubt in circumstances where his account on the whole was coherent and plausible.

12. He also contended that Georgia was not in fact a safe country of origin.

Tribunal’s decision

13. I will shortly address in more detail the precise terms of the Tribunal's decision under the relevant heads of challenge in these proceedings. However, for present purposes, I should note that the Tribunal considered the applicant’s application for an oral hearing at some length over the course of some 12 pages and concluded that it was not in the interests of justice to provide an oral hearing. The Tribunal concluded that in the absence of any issue or new element of the claim or specific detail that required to be probed, the applicant was in essence merely seeking to repeat his evidence in an oral hearing before the tribunal. The Tribunal did not consider that a mere restatement of his claim before the tribunal justified an oral hearing given that no demeanour type findings had been made against him (at para 1.24).

14. The Tribunal then went on to assess the substance of his claim that as a Russian speaker in Georgia people would consider him to support Russia and therefore submit him to discrimination. The Tribunal considered that if he was genuinely in fear of persecution in Georgia, he would have persisted with his application for international protection in the UK and would not have been so vague about whether he had actually applied or not (para 4.2). The Tribunal found that the wilful destruction of his passport seriously undermined the applicant's credibility and evidenced a willingness to deceive. It said he was able to procure a photograph of the passport for his labour market access requests which suggested a foreknowledge of its potential use which was at odds with the otherwise vague account of his travel. The Tribunal found that “this case has all the hallmarks of someone who has concealed what actually happened to his passport and who was attempting to circumvent the immigration laws and/or forum shop in respect of his claim for international protection rather than being someone who has acted in the manner that would reasonably be expected from someone who was genuinely afraid of persecution.” (para 4.2).

15. The Tribunal noted that there were no supporting documents in relation to the material elements of the applicant’s claim noting he hadn't provided documents about his time living in Russia nor did he provide his original passport. It concluded that this was not a claim where the absence of documentation was understandable or reasonable (para 4.4).

16. The Tribunal found that his response to the IPO suggestion that there was no COI to support his claim and that Russian is commonly spoken in Georgia was “vague”. The Tribunal stated that it had reviewed the COI on file and could not see any obvious support for the proposition that Georgian nationals who speak Russian as their primary language are discriminated against. The Tribunal addressed a newspaper article from the Moscow Times submitted on behalf of the applicant which suggested that Russian citizens in a cafe were asked to confirm that they did not support Putin before being served and also stated that some people were asked not to speak Russian or discuss politics when drunk and that some nightclubs or other services refused service to Russian citizens or banks who requested that they confirmed their position before doing business with them (para 4.7).

17. The Tribunal noted that the applicant was not a Russian citizen but a Georgian citizen who speaks Russian. The Tribunal noted that there were news articles about ethnic Russians facing discrimination but that the Tribunal was unable to locate anything in relation to ethnic Georgians who speak Russian being discriminated against. It therefore concluded on balance that while there was COI to suggest discrimination against Russian citizens and nationals in Georgia there was no COI to support the applicant’s claim that he was discriminated against as an ethnic Georgian who spoke Russian. (para 4.8).

18. The Tribunal further held on the question of the alleged discrimination against him as a Russian speaker in Georgia (at para 4.9):

“[4.9] The Appellant’s account of the discrimination is quite vague and non specific.

He fears that he would be booed and would have a feeling of alienation. He claims that he was sitting at a table and people next to him said that he should not use Russian in public. He claims that he explained to them that he was ethnically Georgian but they wouldn’t believe him so security had to intervene, which is vague, superficial and generic account and, as set out above, does not derive support from the C.O.I. The specific incident in the café is also vague and he claims it happened in mid April i.e.

after he had already left Georgia, according to his Questionnaire. When asked about this he stated that he got confused and must look at a calendar.”

19. The Tribunal concluded as follows (at para 4.10):

“[4.10] Overall, the Tribunal considers that the Appellant has limited supporting documentation. He has sought to tie his claim into the discrimination faced by ethnic Russian people. His claim is vague, superficial and non specific. He gave contradictory information at times. He made significant attempts to conceal information about his passport, and if he destroyed or threw away same after he had arrived in the U.K., and if he didn’t stick with his claim for International Protection there, this significantly undermines his general credibility. Overall, the Tribunal considers that the negative credibility indicators far outweigh the more limited positives in this case. On the balance of probabilities the only material element of his claim which is accepted in his Georgian nationality. There are no areas of genuine doubt or uncertainty, and he has not established his general credibility, so the benefit of the doubt does not apply in this particular case.”

Summary of parties’ positions

20. The applicant's case, in summary, is that the Tribunal fundamentally erred in failing to give him an oral hearing on his appeal. The applicant further contends that various aspects of the Tribunal's findings ought to have been put to him in advance as a matter of fair procedures to give him an oral opportunity to comment (albeit that this group of grounds was not pressed at the hearing before me). The applicant also submitted that the Tribunal had made a serious error in mischaracterising the basis of his claim for international protection. The applicant also submitted that the Tribunal had erred in the reliance it placed on his alleged failure to provide documentation in support of his claims and had erred in its application of s. 28(7) of the 2015 Act.

21. The respondents, for their part, contended that there had been no breach of fair procedures, that the Tribunal perfectly lawfully held that there was no entitlement to an oral hearing on the facts of the case, that there had been no breach of s. 28(7), and no material error in the characterisation of the applicant's claims. They also submitted that there had been no error in relation to the view taken by the Tribunal on the absence of supporting documentation.

Consideration of issues arising

22. Logically, it makes sense to first address the applicant's contention that the Tribunal erred in its decision in failing to direct an oral hearing on the facts of this case as, if the applicant is correct in this contention, the Tribunal’s decision would necessarily have to be quashed and the matter remitted for a fresh appeal hearing.

Error by Tribunal in refusing to provide an oral hearing on the appeal?

Decision not to provide oral hearing – separate decision required?

23. While the applicant obtained leave to argue the case that his right to fair procedures in the Tribunal process was breached by a failure on the part of the Tribunal to communicate a

decision in advance of its ultimate decision, as to whether or not to hold an oral hearing, this point was not pursued at the hearing before me. I think this was a sensible course for counsel for the applicant to adopt in circumstances where a number of authorities (including my own judgment in FP v IPAT [2022] IEHC 535 and the judgment of Hyland J in CC v IPAT [2023] IEHC 636) make clear that there is no legal entitlement to a separate decision from the Tribunal in respect of whether or not an oral hearing should be held pursuant to s. 43(b) of the 2015 Act.

24. I will turn accordingly to the applicant’s case that the Tribunal erred in not providing him with an oral appeal hearing.

Tribunal erred in failing to provide an oral appeal hearing?

25. In my very recent judgment in KS v IPAT [2026] IEHC 13 (“KS”), I sought to comprehensively survey the authorities in relation to the circumstances in which fair procedures would require, in respect of a papers-only appeal under s. 43 of the 2015 Act, that it be in the interests of justice to hold an oral hearing on the appeal, notwithstanding the statutory default position of a papers-only appeal. There was no dispute between the parties as to the applicable principles, as summarised in KS.

26. I noted in KS that the authorities generally supported the view that oral hearings would be required in the interests of justice for appeals that would otherwise be papers-only where demeanour-type grounds for rejecting credibility (such as hesitations, apparent evasions, failures of recollection or discrepancies (per Cooke J in SUN v Refugee Applications Commissioner [2013] 2 IR 555 (“SUN”)) had been relied upon.

27. I then stated (at para 58):

“58. It is important to emphasise that an applicant can also be disbelieved (and therefore be held to lack credibility) on non-demeanour type grounds such as when the content of his or her story on its own terms lacks coherence or plausibility or contains material inconsistencies such that a view can be safely arrived at, without the need for any further oral hearing, that the account should not be accepted.”

28. At para 59, I said the following:

“Again, there is no hard and fast rule and each case will fall to be assessed on its own facts. There may be a spectrum of cases between “pure” demeanour-type rejection of personal credibility to cases where an objective assessment of the case advanced by an applicant on its own terms demonstrates that the case cannot stand up. There may be cases where there are contested facts in the sense explained by O’Donnell J. in MM which require an oral hearing to resolve. It is possible to envisage a variety of scenarios (such as where new issues or evidence going to credibility arises on an appeal) that can only be fairly tested orally on the appeal or that may depending on the circumstances be fairly determined on the basis of the papers and written representations alone. The overriding requirement is that the appellant gets an opportunity to fairly make his case.”

29. The Tribunal in that section of its decision dealing with a request for an oral hearing, comprehensively surveys relevant authority over some seven pages. It is accepted fairly by counsel for the applicant that there was no error of law in this summary of the relevant authorities. I agree; the Tribunal comprehensively, carefully and fairly summarised the relevant principles in its assessment of whether or not an oral hearing was required on the facts of this case.

30. The Tribunal having reviewed the relevant authorities and principles held (at paras 1.18 and 1.19) that:

“[1.18] …the Tribunal starts from the position that the International Protection Act, 2015 sets out, as a default, that accelerated appeals proceed without an oral hearing, and that it is only if the Tribunal is satisfied that it is not in the interests of justice to proceed on the papers only that this position is altered and an oral hearing held. Thus, it is not mere convenience or desire for an oral hearing, but whether it is not in the interests of justice to proceed on papers only that is the statutory test. It is clear from the legislation and the many decisions of the Supreme Court, the High Court and more recently the Court of Appeal, that it is not the case that all credibility findings can only be justly resolved by way of an oral hearing. It is contended that the particular credibility findings cannot be addressed in the papers, but no meaningful argument as to why this is so is put forward. There must be engagement and an actual assessment of the specific credibility grounds in an individual case and there must be an actual need to hear and test the evidence if it is to be seriously contended that an oral hearing is necessary in the interests of justice.

[1.19] From this starting point, the Tribunal considers that there are two distinct aspects of an appeal to be looked at; what the Appellant has advanced or had advanced on his behalf and whether that satisfies the Tribunal that it is not in the interests of justice to proceed on the papers only, and second whether the Tribunal, having independently reviewed the papers, considers that it is not in the interests of justice to proceed on the papers only.”

31. In my view, these paragraphs are correct in law.

32. Counsel for the applicant submitted that the Tribunal erred in its application of the legal principles.

33. In truth, the grounds of the applicant's appeal to the Tribunal, as regards his application for an oral hearing, were in very general terms. It was asserted in these grounds that "The issues raised by the IPO can only appropriately be dealt with by way of oral evidence and submissions due to the nature of the reasons for refusal" (at para. 2). He asserted that another reason why an oral hearing was required was that his verbal testimony was the primary evidence (at para. 4 of grounds of appeal). He says that his reference to the "nature of the reasons for refusal" was clearly a reference to the fact that the IPO had held that he was inconsistent, vague and/or non-specific about his claim (grounds of appeal, para. 6).

34. However, tellingly, nowhere in his grounds of appeal did the applicant set out what additional matters he might want to address in an oral hearing or what issues could not be fairly assessed on the papers before the Tribunal, given the fact that he had already conveyed his position orally at the s. 35 interview. As the Tribunal noted in the part of its decision dealing with the request for an oral hearing, inadequacy of detail is something that can be assessed on a papers-only basis and it is open to an appellant to provide same in writing (at para. 1.5).

35. While accepting that neither the IPO nor the Tribunal rejected the applicant's credibility on demeanour-type grounds, such as those identified by Cooke J in SUN and Mac Eochaidh J in AW (see KS, paras. 52 to 57), counsel for the applicant contended that the basis of the rejection of the applicant's credibility here was a "neighbour" of demeanour-type grounds for rejecting credibility, in circumstances where the applicant's evidence was on its own terms plausible but where it was rejected on the basis that it was, inter alia, lacking in detail and vague. He submitted that, given the applicant's case that he was exposed to low level but ongoing discriminatory acts, it was understandable that he would not be able to recall specific detail of many of these events. Accordingly, it was submitted that his type of case represented the type of exceptional situation where an oral hearing was required in the interests of justice to fairly assess his claim on appeal.

36. The applicant did not either in his notice of appeal/grounds of appeal or in his submissions to the court, specify what additional evidence he would have given at an oral hearing before the Tribunal on appeal. Indeed, it is difficult to see what additional specific details or evidence he could have given on his experience given that his evidence at IPO stage was that he could not remember the detail of most of the discrimination that he alleged that he experienced.

37. Counsel on his behalf submitted that he would have been able to more effectively convey a sense of the lived experience of the low-level discrimination he suffered if he was able to give oral evidence before the Tribunal member.

38. In my view, the circumstances here are not sufficient to elevate this case into the class of case where the default rule of a papers-only appeal should be disapplied. In my view, there is force in the submission made by counsel for the respondents to the effect that, in substance, the applicant would simply be seeking to restate the evidence he gave before the IPO. I particularly have regard to the fact that, at the s. 35 interview, the IPO officer put to him that his account was vague and non-specific and gave him an opportunity to provide more detail. I also take into account the fact that, in his grounds of appeal, he did not spell out any additional evidence or material which he wanted the Tribunal to have regard to. While it is understandable why he may have preferred to have a face-to-face encounter with the Tribunal member, that is not the statutory default position, and I do not see that there are sufficient circumstances here on the facts to reach a finding that the Tribunal erred in law in failing to provide the applicant with an oral hearing.

39. Accordingly, I believe that the Tribunal acted lawfully when it held (at paras 1.20 and 1.26):

“[1.20] In terms of the first part, the Tribunal considers that there are no new elements that require to be heard, no issues have been raised about the conduct of the interview of misinterpretation of any particular fact which requires clarification and the issues advanced are capable of being advanced on the papers. The credibility findings in this case are capable of objective assessment on the papers and are not based on subjective factors arising from the oral hearing such as demeanour type findings. Submissions as to why those findings are not correct were made and the Tribunal can adequately assess these points on the papers. He has had an opportunity to set out any additional information or clarification in his notice of appeal but has not done so.”

“[1.26] Thus the Tribunal concludes from the above that the only purpose that would be served by an oral hearing is for the Appellant to restate his evidence. The submissions as to why there should be an oral hearing are systemic arguments against the concept of safe countries and the legislative requirement that the Tribunal determine the case on the papers unless it is satisfied that it is not in the interests of justice to do so. They do not engage with specifics of this particular case. The Tribunal considers that the issue raised in relation to the findings in the section 39 reports are matters which can be addressed by way of written submissions. Further, in G.A v I.P.A.T [2022] IEHC 440 the Honourable Mr. Justice Heslin found that the Tribunal does not have to stop its deliberations and invite further observations or submissions from the Appellant. Therefore, the Tribunal is satisfied that it has all the information and submissions that are forthcoming from the Appellant and his reason for seeking an oral hearing i.e. that he wants to address the credibility issues has been addressed by his having the opportunity to address these matters in his notice of appeal and submissions.”

40. In my view, it was reasonably open to the Tribunal on the case before it to conclude that "The only purpose that would be served by an oral hearing is for the appellant to restate his evidence". The Tribunal's conclusion that the submissions made in the grounds of appeal did not engage with the specifics of the case was also a finding open to it (para. [1.26]).

41. The Tribunal, in discharge of its independent duty to assess whether there were any independent reasons which required in the interests of justice that an oral hearing be held, found as follows (at paras. 1.27 to 1.29):

“[1.27] Separately, the Tribunal has an independent duty to review the claim and assess whether there are any independent reasons which require, in the interests of justice, that an oral hearing be held. The Tribunal considers that the Appellant was given an adequate opportunity to set out his claim his Questionnaire and his Interview, that he was assisted by interpreters during this process and that there is no procedural unfairness about any of this.

[1.28] The Tribunal also does not consider that there are areas of his claims that fairness requires to be probed further or that he has not been given the opportunity to adequately address. Having independently reviewed the papers, the Tribunal considers that if an oral hearing was granted, it would be for no purpose other than for the Appellant to simply restate his claim. The Tribunal does not consider that there are issues that ought to be put to him for further clarity, nor indeed that there is anything ambiguous in relation to his claim that needs to be clarified for the Tribunal to carry out its functions.

[1.29] For the same reasons as set out above, the Tribunal does not consider that depriving him of the opportunity to restate that which has already been said is contrary to the interests of justice. The Tribunal has borne this is mind throughout its assessment of the case and has always borne in mind the possibility of directing an oral hearing if such became necessary on any particular point. No such point arose during the Tribunal’s assessment of the Appeal.”

42. In my view, there was no legal error in these findings and it was reasonably open to the Tribunal to reach these findings on the present state of the law.

43. Accordingly, in my view, there is no basis to quash the decision of the Tribunal to refuse the applicant an oral hearing in this matter.

Other Grounds of Challenge to the Decision

44. I will turn now to the remaining issues arising on the applicant’s case as argued before me. Before I do so, it is useful to deal with a number of the other grounds which were advanced in the applicant’s statement of grounds, but which were not pursued or pressed with any vigour at the hearing before me. These grounds essentially related to a contention that the applicant's right to fair procedures was breached by the failure of the Tribunal to put particular intended credibility findings to the applicant in advance of the Tribunal’s decision to invite the applicant's views on same.

Fair procedures required Tribunal to revert to applicant with certain proposed findings?

45. Accordingly, the applicant claimed that the Tribunal acted in breach of fair procedures in holding that, if the applicant was genuinely in fear of persecution in Georgia, he would have persisted with his application for international protection in the UK, without putting that assessment to the applicant in advance. However, this matter was clearly put to the applicant in the IPO process, during the s. 35 interview, and, indeed, it was specifically pointed out that the circumstances of him not persisting with an application for protection in the UK could cast doubt on his credibility (s.35 interview, questions 44 to 48).

46. As made clear by Peart J in his judgment in the Court of Appeal in BW v Refugee Appeals Tribunal [2018] 2 ILRM 56 at 72-73, the requirement that the applicant must be given a fair opportunity of addressing a concern as to credibility on the part of the decision maker, before any adverse finding of credibility is made against him, is fulfilled where the particular issue was raised at first instance during the [IPO] process. It is well-established that the Tribunal is not obliged to revert to an applicant where it intends to make an adverse credibility finding arising from his own evidence early in the process: see Mac Eochaidh J in MA v Refugee Appeals Tribunal [2015] IEHC 528 at para. 20 (as discussed in my judgment in KS at paras 68 to 72).

47. A similar case was made in the statement of grounds that the applicant, as a matter of fair procedures, was entitled to be invited by the Tribunal in advance of its decision to comment on a potentially adverse finding on the destruction of the applicant's passport. Again, this was not pressed at the hearing before me and sensibly so in circumstances where the question of the circumstances of the destruction of the applicant's passport was put to the applicant both in his s. 35 interview and was the subject of an adverse credibility finding in the IPO’s s. 39 report. These adverse credibility assessments – both of the IPO and of the Tribunal – exclusively flow from the applicant's own direct evidence.

48. Another ground contained in the applicant’s statement of grounds was that it was a breach of fair procedures on the part of the Tribunal to fail to put its assessment of the insufficiency of supporting documentation to the applicant in advance of its decision. As Heslin J held in GA v IPAT [2022] IEHC 440, an applicant is always on notice of the necessity to produce as much supporting documentation as possible. This is made abundantly clear in, inter alia, the IPO questionnaire document filled out by the applicant. In that judgment, Heslin

J. quoted in extensive detail from the IPO questionnaire provided to applicants for international protection and noted the extent to which that questionnaire emphasises the need for applicants to submit all relevant documents. I do not see that any breach of fair procedures arises in the circumstances.

Adverse Reliance by Tribunal on applicant’s destruction of his passport

49. In relation to the passport issue, the only case made on the applicant's pleadings was a breach of fair procedures in relation to the alleged failure by the Tribunal to revert to him on the question of an adverse credibility finding arising from his destruction of his passport, which I have dealt with above. At the hearing before me, the applicant also sought to make submissions on the inappropriateness of the Tribunal drawing adverse inferences from the fact of the applicant's destruction of his passport. As this ground is not pleaded, I do not think it can be validly advanced by the applicant. In any event, in my view, no error in this regard can be made out.

50. Counsel for the applicant sought to contend at the hearing before me that it was disproportionate of the Tribunal to draw an adverse inference from the destruction by the applicant of his passport in London on the basis that such destruction was not inherently at odds with his claim to be a legitimate refugee as, for example, the destruction of the passport might be consistent with seeking to avoid or delay being returned to the country of origin where the applicant claimed he would be exposed to a risk of persecution. However, it was clearly open to the Tribunal on the particular evidence before it to take the view that the intentional destruction by the applicant of his passport was relevant to assessing his credibility. The applicant stated, in his s. 35 interview, that he sought to throw away his passport when he was approaching the relevant officials in the airport in London. This was in circumstances where he had earlier in the interview claimed that he did not use a passport to get to London. He in fact took a photograph of the personal details page of the passport which he subsequently used in an application for workforce access. This was not a situation where, on his own evidence, he destroyed his passport with a view to protecting his safety or for some other objectively justifiable reason.

51. As noted by the respondents in their submissions, s. 20(1)(f) of the 2015 Act empowers an immigration officer or a member of An Garda Síochána to arrest and detain an applicant for international protection who, without reasonable excuse, has destroyed his or her identity or travel document. This power appears to reflect the determination of the UNHCR Executive Committee Declaration on the Problem of Refugees and Asylum-Seekers Who Move in an Irregular Manner from a Country in Which They Had Already Found Protection, No. 58 (XL)

– 1989, where the Committee stated (cited in Prof Goodwin-Gill, Article 31 of the 1951

Convention relating to the Status of Refugees: Non-penalization, Detention and Protection (UNHCR, 2001) at p. 68):

The problem of irregular movements is compounded by the use, by a growing number of refugees and asylum-seekers, of fraudulent documentation and their practice of wilfully destroying or disposing of travel and/or other documents in order to mislead the authorities of their country of arrival. These practices complicate the personal identification of the person concerned and the determination of the country where he stayed prior to arrival, and the nature and duration of his stay in such a country. Practices of this kind are fraudulent and may weaken the case of the person concerned…”

52. While of course there may be circumstances in which there is a reasonable or legitimate excuse or justification for an IP applicant destroying their passport, in my view it was perfectly open to the Tribunal on the evidence before it in this case to draw adverse inferences from the applicant’s destruction of his passport which occurred while he was approaching an immigration officer in an airport in London.

Alleged mischaracterisation of basis for applicant’s international protection claim

53. The applicant claims that the Tribunal fundamentally mischaracterised the basis of his claim for international protection such as to vitiate the Tribunal’s decision. He submits that the COI made clear that those perceived to be Russian, or Russian sympathisers, by virtue of being Russian speakers in Georgia, were subject to discrimination in Georgia but that the Tribunal mis-framed his claim as one of being an ethnic Georgian who spoke Russian thereby discounting relevant COI which supported his actual case which was that as a Russian speaking Georgian he would be assumed to be a Russia-sympathiser and would be discriminated against as such.

54. I do not think that this contention is borne out by the actual terms of the Tribunal’s

decision.

55. The Tribunal's decision, in its first paragraph (at para. [1.1]), stated that the applicant was a 22-year-old man from Georgia who made a claim for protection "on the basis that he is a Russian speaker and was discriminated against". Under the heading "Outline of claim", at para. [2.1] of the decision, the Tribunal records the applicant's claim before it as, in essence, being "that he is a Russian speaker and some people consider him to support Russia". It is clear therefore that the Tribunal understood the basis of the applicant’s claim.

56. The Tribunal stated (at para. [4.7] of its decision) that:-

"The IPO reviewed the COI and put to the appellant that the was no COI to support his claim and that Russian is commonly spoken in Georgia. In reply he was vague, and suggested that those [there] are people who are over 35 years old but young people wouldn't understand it. The Tribunal has reviewed the COI on file and cannot see any obvious support for the proposition that Georgian nationals who speak Russian as their primary language are discriminated against. His legal representative submits that his claim is consistent and relies upon two news articles. The first is from the Moscow Times. This article suggests that Russian citizens in a cafe when asked to confirm they don't support Putin before being served. It goes on to state that some people are asked not to speak Russian or discuss politics when drunk and some nightclubs or other services refuse service to Russian citizens or banks who requested that they confirm their position before doing business with them."

57. The decision then goes on to state, at para. [4.8], as follows:-

"The appellant is not a Russian citizen but is a Georgian citizen who speaks Russian. He had a Georgian passport to prove this until he voluntarily destroyed it, and had it at all times in Georgia. He has also lived in Georgia from 2007 until he left, and attended school there, so there is an air of unreality to the suggestion that he would be treated as a Russian citizen. A link to an article from the Carnegie Endowment did not appear to work. The appellant's legal representative was contacted to provide the correct link but nothing was provided. The Tribunal notes that there are other news articles, including from the Carnegie Endowment about ethnic Russians facing discrimination, but the Tribunal was unable to locate anything in relation to ethnic Georgians who speak Russian being discriminated against. On balance, therefore, the Tribunal finds that while there is COI to suggest discrimination against Russian citizens and nationals in Georgia, there was no COI to support the appellant's claim that he, as an ethnic Georgian who speaks Russian, is discriminated against."

58. The applicant contends that this this is an inappropriate distinction. The key point of his claim is that his status as a Russian speaker left him open to the assumption that he was either Russian or sympathetic to Russia. He submits that this, in essence, was the Moscow Times article conveyed. The applicant says that while the Tribunal correctly characterised his claim in paras. 1.1 and 2.1 as set out above, it then fell into error subsequently. At para. 4.10 of its decision, the Tribunal holds that, on the balance of probabilities, "The only material element of his claim which is accepted is his Georgian nationality". It does not spell out that in fact it was accepted that he was a Russian speaker. He submits that, at para. 7.3 of the

decision, relating to his claim for subsidiary protection, the Tribunal doubles down on this mistake by holding that there is no reason to consider that Georgian citizens in Georgia are at risk of torture, inhuman or degrading treatment, by state or non-state actors, by reason of their nationality. He submits that this makes clear that the Tribunal simply failed to engage with the core base of his claim. His claim was, in essence, that, on account of him being a Russian speaker, he was seen as ethnically Russian in Georgia, thereby leaving him exposed to discrimination.

59. I cannot hold that the Tribunal did not have any reasonable basis to make the findings it did in relation to the nature of his claim. The only article with which the appellant put before the Tribunal was that from the Moscow Times. While that article was not before me in evidence, there was no evidence that the Tribunal's characterisation of this article in its decision as referencing the ill-treatment of Russian citizens in Georgia was in error. As is clear from the terms of the s. 35 questionnaire and the IPO recommendation decision, Russian is widely spoken in Georgia by many Georgian citizens and nationals. The evidence accordingly before the Tribunal was that Russian is a very common language in Georgia. The Tribunal set out, in para. 4.8 of its decision (as set out above), that there were other news articles about ethnic Russians facing discrimination. Again, there is no evidence before me that that was a statement without any foundation in the evidence before the Tribunal.

60. I do not accept that, reading the Tribunal's decision in the round, it did not evaluate the applicant's case on the basis that he was not a Russian speaker or that it did not appreciate his case that he was being discriminated against because as a Russian speaker he might be assumed to be a Russian sympathiser. Rather, the Tribunal took the view that there was a material difference on the evidence and materials before it, between Russian citizens in Georgia and how they were treated as such, and Russian-speaking ethnic Georgians. On the face of it, I do not see that it was irrational to make a distinction between ethnic Russians and Russian citizens getting unfavourable treatment in Georgia, on the one hand, and Georgian citizens speaking Russian in Georgia, on the other, particularly where the applicant accepted that Russian is very commonly spoken in Georgia. In the circumstances, I cannot hold that the findings were not grounded in the evidence before the Tribunal or were otherwise unlawful.

Alleged errors in relying on absence of documentation and application of s.28(7) 2015 Act

61. At para 4.3 of its decision, the Tribunal set out the terms of s.28(7) of the 2015 Act as follows:

“Where aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation where the international protection officer or, as the case may be, the Tribunal, is satisfied that—

(a) the applicant has made a genuine effort to substantiate his or her application,

(b) all relevant elements at the applicant’s disposal have been submitted and a satisfactory explanation regarding any lack of other relevant elements has been given,

(c) the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case,

(d) the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so, and

(e) the general credibility of the applicant has been established.”

62. The Tribunal then noted (at para 4.4) that there were no supporting documents in relation to the material elements of the applicant’s claim noting he hadn't provided documents about his time living in Russia nor did he provide his original passport. It concluded that that there are documents which he could have obtained with reasonable effort, if his claim was credible, and that this was not a claim where the absence of documentation was understandable or reasonable.

63. The applicant sought to contend that the Tribunal erred in the manner in which it considered s. 28(7) of the 2015 Act by relying on the absence of documentation to make adverse findings of credibility, when the statutory scheme requires that an applicant's general credibility be considered prior to any consideration of an absence of documentation.

64. It is clear that the “benefit of the doubt” provision in s. 28(7) of the 2015 Act is only engaged where the several criteria set out in the section are met. In particular, it has been emphasised that the “benefit of the doubt” will only be engaged where the general credibility of the applicant has already been established. As I noted in my judgment in AH v IPAT [2022] IEHC 84 at para 17:

In short, it is clear that before the benefit of the doubt can be given in relation to undocumented aspects of an applicant’s claims, the applicant’s general credibility must be established (see s.28(7)(e)). Once the applicant’s general credibility has been established, undocumented aspects of the applicant’s case do not need to be confirmed i.e. can get the benefit of the doubt where, but only where, the four other factors in s. 28 (7)(a) to (d) are satisfied.

65. I do not see that the Tribunal erred in law in its consideration of the question of the absence of supporting documentation or in its application of s. 28(7). The conclusion reached by the Tribunal that this was not a claim where the absence of documentation was understandable or reasonable was open to it on the evidence (or lack of evidence) before it. More to the point, the Tribunal in any event went on to consider in some detail why the applicant’s claim lacked credibility on the basis of an evaluation of his evidence and the applicable COI.

Conclusion

66. For the reasons outlined above, I conclude that the applicant is not entitled to the relief he claims.