Facts: The applicant was a Pakistani national who identified as Kashmiri. The applicant and his family were activists with the Jammu Kashmir Liberation Front (JKLF). He fled Kashmir and applied for international protection in Ireland, initially under the Refugee Act 1996 and then under the International Protection Act 2015. His application for refugee status was refused under the Refugee Act 1996 and this was upheld by the Refugee Appeals Tribunal. Upon the commencement of the International Protection Act 2015, he applied for international protection. It was recommended that his application be refused, and this was upheld, on appeal, in the International Protection Appeals Tribunal.
The applicant sought judicial review in the High Court on two key issues. Firstly, whether the Tribunal failed to correctly apply Article 15(c) of the recast Qualification Directive 2011/95/EU and section 2, International Protection Act 2015 in refusing to recommend international protection. And, secondly, whether there was a structural failure in the treatment of documents the applicant submitted by examining credibility first and rejecting them on this ground, without assessing the documents themselves.
Reasoning: First, with regard to Article 15(c) of the Qualification Directive, Phelan J first recognised that Ireland has not opted in to the recast Directive 2011/95/EU, but does participate in Qualification Directive 2004/83/EC. Nonetheless, it was found there was no difference in the relevant provisions of the two Directives. Article 15(c) concerns serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. This relates to a person’s eligibility for subsidiary protection. The equivalent is set out in section 2, International Protection Act 2015.
Phelan J found that the International Protection Appeals Tribunal sufficiently assessed the Refugee Appeals Tribunal decision and adequately used updated country of origin information on the situation in Kashmir to re-assess his claim. Phelan J. found that the Tribunal had examined a forward-looking test in examining improvements since the recommitment to a ceasefire in Kashmir.
On whether there was a structural failure in how the Tribunal treated documents submitted by the applicant in its credibility assessment, Phelan J. made reference to relevant Irish and EU case law as well as the EASO Practical Guide to Evidence Assessment. Phelan J stated that there was a duty to consider documents submitted and not reject them outright on the basis that the account given is implausible or not believed. The decision maker may give less weight to the documents but they must be considered. In the instant case, the Tribunal considered the contents of only some of the documents submitted. Phelan J. found that the Tribunal therefore failed to properly assess the documentation.
Decision: The Tribunal decision was quashed and the matter was remitted for new consideration by a different Tribunal member.
