THE HIGH COURT JUDICIAL REVIEW [2023] IEHC 535 [Record No. 2022 / 915 JR]
IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED) AND IN THE MATTER OF THE INTERNATIONAL PROTECTION ACT 2015
BETWEEN: N.G. APPLICANT
AND THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND, AND THE ATTORNEY GENERAL RESPONDENTS
JUDGMENT delivered by Ms. Justice Siobhán Phelan on September 29th, 2023.
INTRODUCTION
The Applicant challenges the refusal of his subsidiary protection application, alleging that the International Protection Appeals Tribunal (hereinafter “the Tribunal”) erred in finding a real risk of serious harm in his country of origin but denied protection on the grounds of available State protection. The Applicant contends that the Tribunal failed to apply ss. 2, 28(6), 31, and 33 of the International Protection Act, 2015 (hereinafter “the 2015 Act”). To protect parties’ anonymity, this judgment omits exact dates and uses initials instead of actual names.
BACKGROUND 2. The Applicant, an Albanian national, seeks international protection due to threats stemming from his involvement in a business dispute. The Applicant’s claim involves a disagreement leading to death threats and accusations of theft. Despite X’s murder and Y’s conviction, the Applicant continued to receive threats until leaving Albania in June 2018.
PROCEEDINGS 3. The Applicant’s challenge focuses on the Tribunal’s decision dated October 3, 2022, refusing subsidiary protection. Leave to proceed with judicial review was granted on November 21, 2022. The Applicant asserts legal flaws in the decision, arguing that the Tribunal acknowledged a real risk of harm but erroneously refused protection based on available State protection. The Respondents counter, asserting the lawfulness of the Tribunal’s decision, emphasizing a proper application of relevant provisions and a comprehensive assessment of available information.
DISCUSSION AND DECISION
Real Risk of Serious Harm and State Protection
Section 2 of the 2015 Act defines a person eligible for subsidiary protection as someone who, if returned to their country of origin, would face a real risk of suffering serious harm and is unwilling or unable to avail themselves of that country’s protection. This mirrors Article 2(e) of Directive 2004/83/EC, outlining similar criteria.
The Applicant contends that the Tribunal erred in placing significance on the finding of a well-founded fear of persecution/serious harm. The argument is that once a real risk of serious harm is established, the Applicant is entitled to subsidiary protection. The Court refers to relevant legal provisions and the case of Mohammed Bilali v Bundesamt für Fremdenwesen und Asyl and Secretary of State for the Home Department v. OA to support this position.
The Respondents reject this interpretation, arguing that Section 2 mandates an assessment of the Applicant’s circumstances and evidence before considering the availability of State protection.
Previous cases, including X.S. and J.T. v the International Protection Appeals Tribunal and E.S. v the International Protection Appeals Tribunal, support the notion that an applicant must demonstrate a lack of State protection to qualify for international protection.
A similar argument was rejected in T.A. v. IPAT & Ors., where Heslin J. emphasized the distinct concepts of fear of persecution/real risk of serious harm and State protection.
The Court aligns with T.A. v. IPAT & Ors., affirming that fear of harm and State protection are separate elements that must be considered independently in a protection claim. The mere demonstration of a risk of serious harm does not guarantee entitlement to international protection; the absence of effective State protection must also be established.
In the assessment, there was no legal error in the decision maker’s approach, which incrementally analyzed distinct yet intrinsically related elements. State protection becomes relevant only after establishing a threshold risk of harm, and the nature of the apprehended risk must be determined to assess the availability of State protection.
The Tribunal’s logical sequencing of first acknowledging a well-founded fear of persecution and subsequently considering State protection aligns with established practices. The Applicant’s claim disputing entitlement to international protection lacks merit.
Proper Application of Rebuttable Presumption under s. 28(6) of the 2015 Act
The Applicant contends that the Tribunal failed to apply the rebuttable presumption under s. 28(6) of the Act, alleging a breach. However, the Tribunal explicitly concluded that the Applicant would face a well-founded fear of harm based on past events, demonstrating consideration of the evidential advantage under s. 28(6).
Safe Country Analysis and Section 33 of the 2015 Act
The Applicant’s claim challenging the Tribunal’s consideration of State protection is rejected. The Tribunal’s decision, following a logical progression, indicates a thorough examination of the Applicant’s circumstances before assessing the availability of State protection.
CONCLUSION
Although there was an intimation of an application for a preliminary reference under Article 234 EC on behalf of the Applicant, no valid basis has been established for such a reference. Proceeding to judgment without the need for a reference is deemed appropriate.
I am confident that the Tribunal applied a logical and comprehensive approach to assessing the Applicant’s entitlement to protection. The consideration of fear of persecution, real risk of serious harm, and the issue of State protection was methodically executed, aligning with established practices endorsed by the Court in previous cases.
Moreover, the Tribunal’s determination on the State protection issue followed the correct legal test, respecting the Applicant’s entitlement to the evidential benefit provided under s. 28(6) of the 2015 Act. The decision reached by the Tribunal is deemed reasonable based on the available evidence.
In light of these considerations, the requested reliefs must be refused.
