About this case:

• Citation:
  [2021] IEHC 781
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Cian Ferriter

Delivering judgment in the case, Mr Justice Cian Ferriter held that the IPAT’s refusal of an oral hearing failed to engage with any of the substantive matters set out in the applicant’s written submissions. The court also provided guidance on the circumstances where it would be in the interests of justice to hold an oral hearing.

Background

The applicant was a Georgian national who sought asylum and subsidiary protection in Ireland based on a fear of persecution for being gay. He completed his questionnaire in August 2019 and was interviewed by an international protection officer in February 2020.

The IPO recommended in a report that the applicant should not be granted a refugee declaration or subsidiary protection. The IPO ruled that Georgia was designated as a “safe country of origin”.

A notice of appeal to the IPAT was lodged by the applicant in March 2020. The applicant requested an oral hearing of the case. Since Georgia was deemed as a safe country of origin, the IPAT applied an expedited appeal procedure. Under section 43(b) of the 2015 Act, the IPAT was required to make a decision on a paper-only basis unless the IPAT considered that it was in the interests of justice to hold an oral hearing.

In August 2020, the applicant provided detailed submissions to the IPAT outlining why it was in the interests of justice to hold an oral hearing. In August and September 2020, the IPAT affirmed its decision to refuse an oral hearing.

The applicant subsequently issued judicial review proceedings seeking to quash the decision of the IPAT to refuse an oral hearing. In particular, the applicant argued that the IPAT failed to adequately consider and engage with the submissions provided in support of his application.

High Court

The court began by considering the underlying principles of section 43(b). The court noted the decision in SUN v. The Refugee Applications Commissioner & Ors [2013] 2 IR 555, where it was held that, in circumstances where an applicant’s account on paper was deemed to not be credible, the appropriate remedy was to allow the applicant to give oral evidence.

Mr Justice Ferriter also referred to M.M. v. Minister for Justice and Equality [2018] 1 ILRM 36, in which the Supreme Court made significant statements on the concept of “credibility” in international protection cases. In M.M., the court identified two scenarios in which the concept of credibility could arise. First, there could be so-called “classic” credibility, where an applicant’s assertions were either believed or not. Second, there was credibility used in the sense of whether a particular conclusion should be accepted as flowing from a particular state of facts.

It was held in M.M. that where an applicant’s account was not believed (classic credibility), then the necessity for an oral hearing was “more pressing”. The court considered SUN and M.M. and held that “when an applicant’s credibility has been rejected in the classic sense of the applicant being disbelieved in relation to his or her account”, the interests of justice will likely require an oral hearing to fairly determine the case.

The court suggested a test which should be considered when determining if an oral hearing for a sexual orientation case was in the interests of justice. The test was 1) whether the veracity of the applicant’s case was rejected; 2) whether the account was prima facie coherent and plausible; 3) whether the account ran counter to information that was objectively ascertained and; 4) whether credibility questions would be most fairly resolved in an oral hearing.

The court then moved to consider the applicant’s submissions on the suitability of an oral hearing. The applicant was highly critical of the IPAT’s lack of understanding about his sexual identity and why he felt compelled to hide it from Georgian society. Further, the applicant criticised the finding that his sexuality claim was undermined because he had many heterosexual relationships but only one homosexual relationship.

Mr Justice Ferriter also quoted extensively from the IPAT’s decision to refuse the oral hearing. The court held that the decision “simply fails altogether to engage with or take into consideration the substantive matters set out in [the applicant’s] written submissions”. The court stated that the IPAT’s decision relied on general case law relating to the entitlement to refuse protection on an applicant’s credibility in a paper-only appeal.

The court held that the applicant did not contest those general legal principle., Instead, he had made detailed submissions on the particular circumstances of his case and why an oral hearing was necessary based on the manner that the IPO had refused his case.

The court held that the IPAT failed to properly assess the interests of justice since there was “no engagement at all” with the applicant’s submissions for an oral hearing. The court was critical of the IPAT’s statement that it had “considered your submissions in respect of s.43(b) of the International Protection Act, 2015”. The court said that this was a “generic reference” and did not provide an answer to the “flawed analysis”.

Conclusion

The court granted an order quashing the decision and remitted the matter for rehearing. The court stated that, in its view, it was incumbent on the IPAT to consider the court’s decision relating to credibility when determining the case.