M.Y. v the International Protection Appeals Tribunal & anor


M.Y. v the International Protection Appeals Tribunal & anor
Respondent/Defendant:The International Protection Appeals Tribunal and the Minister for Justice
Court/s:High Court
Citation/s:[2022] IEHC 345
Nature of Proceedings:Judicial review
Judgment Date/s:13 May 2022
Judge:Ferriter J.
Category:International protection, Refugee Law
Keywords:Asylum Applicant, Burden of Proof, Country of Origin, Deportation Order, Persecution, Refugee (Convention)
Country of Origin:Algeria

Facts: The applicant was a member of the Berber Amazigh people, an ethnic minority in Algeria and supported the ideals of the Berber separatist MAK movement. He travelled to the UK on a short-term visa in 2013 and remained there after its expiry. In 2018, he travelled to Ireland and applied for international protection. The IPO recommended that he not be granted refugee status or subsidiary protection and also recommended that he not be granted permission to remain. The applicant appealed to the IPAT, which rejected the appeal and affirmed the IPO recommendation. The applicant brought judicial review proceedings challenging the decision of the IPAT.

Reasoning: In the High Court, Ferriter J. first examined if the IPAT’s decision was contrary to section 28(6) of the International Protection Act 2015, which provides that the fact that the applicant was previously subject to persecution or serious harm, or direct threats in that regard, is a serious indication of well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to believe they will not be repeated. While the IPAT accepted as credible that the applicant experienced persecution and/or serious harm in Algeria in the past, Ferriter J. found that the IPAT failed to make express reference to s. 28(6). It also did not afford the applicant the benefit of the rebuttable presumption regarding the possibility of facing future persecution and/or serious harm if returned.

In comments made in obiter, Ferriter J. considered the applicability of the principles established in HJ (Iran) ([2010] UKSC 31). The appellant argued that the IPAT had erred in law and acted unreasonably and irrationally in expecting and/or requiring him to hide his political beliefs and to not take part in the Berber separatist movement for the rest of his life to avoid persecution and serious harm. In HJ (Iran), the UK Supreme Court overturned the ruling of the Court of Appeal, which had held that a gay applicant, if returned, could live “discreetly” in their country of origin to avoid persecution . Ferriter J. reflected on the tests used in subsequent cases in the UK and in Ireland, noting that it had not been applied in Ireland outside of the context of gay applicants for international protection. Ferriter J opined that a close reading of HJ (Iran) demonstrates that the UK Supreme Court believed the principles could apply to other Convention grounds beyond membership of a particular social group based on sexual orientation, such as the holding of a political opinion. He recognised, nonetheless, the ‘fact-sensitive nature’ of the principles, underscoring the need for a tribunal faced with arguments based on HJ (Iran) to carefully assess the facts of the case.

Decision: The High Court quashed the decision of the IPAT and remitted the matter for fresh determination by a different tribunal member. Ferriter J. stated that the IPAT should proceed on the basis that HJ (Iran) applies in principle. He stated that if the IPAT finds that the applicant will not be engaging in activism if returned to Algeria, it should assess why that is and whether it relates to a well-founded fear of persecution.

Principles:When refusing an application under section 28(6) of the International Protection Act 2015, the core elements of the provision should be assessed. Albeit obiter, Ferriter J stated that the UK Supreme Court’s ruling in HJ (Iran) can be applied to Convention grounds other than those that relate to sexual orientation and HJ (Iran) should be applied carefully to the facts of the case when remitted for fresh consideration.
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