Compatibility of Rebutting the “Safe Country of Origin” Presumption with a Finding of Effective State Protection (and the High Threshold for COI “Cherry-Picking” Challenges)

1) Introduction

A.B. v The International Protection Appeals Tribunal and Anor [2026] IEHC 185 is an ex tempore decision of the High Court (O’Higgins J) refusing judicial review of an International Protection Appeals Tribunal (“IPAT”) decision dated 27 August 2024. The applicant, a Georgian national born in 1996, sought refugee status or subsidiary protection on the basis that he would face persecution/serious harm in Georgia due to his sexual orientation as a bisexual man who has relationships with men and women.

The International Protection Office (“IPO”) accepted key elements of the claim as credible, including a Convention nexus and a reasonable chance of persecution, but refused protection on the basis that state protection was available in Georgia. IPAT affirmed, accepting credibility and risk, rebutting the “safe country of origin” presumption for Georgia on the applicant’s particular circumstances, yet still concluding that effective state protection was available.

The case raised recurring issues in protection judicial reviews: (i) the relationship between rebutting the “safe country of origin” presumption and findings on state protection; (ii) the proper application of the statutory test for “actors of protection” under s.31 of the International Protection Act 2015; (iii) how decision-makers may treat non-reporting to police; (iv) the standard for evaluating allegedly conflicting country of origin information (“COI”) and allegations of “cherry-picking”; and (v) the threshold for “persecution” versus discrimination, here argued through the applicant’s difficulty publishing an LGBT-themed book.

2) Summary of the Judgment

  • The Court found no meaningful delay and would extend time if necessary.
  • The Court rejected the argument that IPAT acted inconsistently by (a) treating the s.33 safe-country presumption as rebutted but (b) still finding effective state protection. The two findings were held not mutually exclusive.
  • The Court held that IPAT’s methodology complied with s.31 (state protection), including by explicitly applying the four-question framework identified in B v. IPAT [2019] IEHC 763.
  • The Court rejected the allegation that IPAT irrationally analysed COI or “cherry-picked” favourable excerpts; it held the decision acknowledged a “mixed picture” and gave coherent reasons for its conclusion.
  • The Court accepted, in principle, that non-reporting to police cannot automatically defeat a claim of ineffective protection, but held it was rational for IPAT to consider non-reporting and the applicant had not shown the tribunal’s approach was legally irrational.
  • The Court upheld IPAT’s conclusion that the book-publication issue did not meet the statutory threshold for “persecution” under s.7 of the 2015 Act.
  • The judicial review was refused in full.

3) Analysis

A. Precedents Cited

N.U. v. I.P.A.T. [2022] IEHC 87

IPAT cited N.U. v. I.P.A.T. [2022] IEHC 87 in support of the proposition that evidence of ineffective investigations of hate crimes could be sufficient to rebut the s.33 presumption that Georgia is a safe country of origin—without prejudging the separate question of state protection. The High Court endorsed that conceptual separation: rebutting s.33 triggers a full examination without the presumption, but does not dictate the outcome of the s.31 analysis.

B v. IPAT [2019] IEHC 763

The decision treats B v. IPAT [2019] IEHC 763 as the practical template for analysing s.31. IPAT explicitly applied Barrett J’s four-step inquiry: (1) reasonable steps to prevent harm; (2) an effective legal system for detection/prosecution/punishment; (3) effectiveness and non-temporariness; (4) access for the particular applicant. O’Higgins J regarded the explicit adoption of this framework—and the subsequent COI/personal-circumstances assessment—as strong evidence of lawful methodology.

G.O.B. v. Minister for Justice [2008] IEHC 229

O’Higgins J relied on Birmingham J’s articulation in G.O.B. v. Minister for Justice [2008] IEHC 229 of an “internationally accepted” proposition: absent clear and convincing proof to the contrary, a state is presumed capable of protecting its citizens. The judgment uses this to contextualise the applicant’s criticisms of police shortcomings: the existence of criticisms (even serious ones) does not automatically equate to a legal conclusion of ineffective protection under the statutory test.

E.S. v. IPAT [2022] IEHC 613

The Court treated E.S. v. IPAT [2022] IEHC 613 as closely analogous on COI evaluation. From E.S., the Court adopted two key points: (i) s.31 requires “reasonable steps” to achieve effective protection and the test does not turn on perfect success rates; and (ii) where a tribunal engages with critical and supportive COI, acknowledges shortcomings, and explains why it nonetheless finds protection available, the reasons may be adequate even if the opposite conclusion could also have been supported by some of the material.

D.V.T.S. v. The Minister for Justice [2007] IEHC 305

The applicant invoked D.V.T.S. v. The Minister for Justice [2007] IEHC 305 to argue that IPAT failed to rationally resolve conflicting COI and impermissibly “cherry-picked”. O’Higgins J distinguished D.V.T.S., holding that this was not a case where IPAT ignored conflicting COI or failed to explain its preference. Instead, IPAT recognised the “mixed picture”, identified shortcomings, and gave a coherent rationale for concluding that oversight mechanisms and a supportive legal framework supported effective protection in the applicant’s particular circumstances.

B. Legal Reasoning

(i) Rebutting s.33 is not incompatible with finding state protection under s.31

A central clarification in the judgment is that rebuttal of the s.33 “safe country of origin” presumption and a later conclusion of effective state protection are not logically inconsistent. Rebutting s.33 simply removes an evidential presumption for the purposes of assessment; it does not predetermine the outcome of the state protection inquiry. This matters because applicants frequently argue that once a country is shown (in their circumstances) not to be “safe”, the state protection conclusion must necessarily be negative. The Court rejected that syllogism.

(ii) The Court’s supervisory (not appellate) stance in protection judicial review

O’Higgins J repeatedly emphasised that judicial review is not a merits appeal. The question is not whether the Court agrees with IPAT’s evaluation of COI, but whether the tribunal’s process, methodology, and reasoning were lawful and rational, and whether the conclusions were reasonably open to it on the material considered. This framing largely determined the outcome: the applicant’s submissions often invited the Court to reweigh COI and substitute a different overall conclusion; the Court declined.

(iii) Application of s.31: “reasonable steps”, effective legal system, effectiveness, and access

The Court accepted that IPAT’s structure tracked the statutory checklist:

  • Reasonable steps to prevent persecution/serious harm (s.31(2)(b)(i));
  • Operating an effective legal system for detection/prosecution/punishment (s.31(4));
  • Effective and non-temporary protection (s.31(2)(a));
  • Access to such protection for the applicant (s.31(2)(b)(ii)).

Critically, IPAT did not deny that shortcomings existed; rather it treated COI as mixed, noted occasional failures, and then relied on oversight mechanisms and improvements to conclude that protection meeting the statutory standard was available to this applicant.

(iv) COI “mixed picture” and the rationality threshold

The Court held it was legitimate for IPAT to find Georgia’s COI presented a “mixed picture” and then to explain why, despite blemishes (including failures around Pride events and occasional police failures), the state’s structures and oversight could still amount to reasonable steps and effective protection under s.31. The Court’s approach aligns with the principle in E.S. v. IPAT [2022] IEHC 613 that the statutory test is not “perfect protection” but reasonable measures capable of being effective.

(v) Non-reporting to police: relevant but not dispositive

O’Higgins J adopted a balanced rule. He accepted that failure to report cannot, of itself, defeat a claim where there are good reasons not to report. However, the Court held it is rational for a tribunal to consider non-reporting because it deprives the applicant of direct evidence that protection would have failed, increasing the burden of persuasion that reporting would have been futile or dangerous. In this case, IPAT treated non-reporting both as a credibility issue and as part of the “access to protection” analysis; the Court found that approach reasonably open on the record.

(vi) Discrimination versus persecution: the book-publication complaint

The Court upheld IPAT’s conclusion that difficulty securing publication of an LGBT-themed book did not reach the threshold of “acts of persecution” under s.7 of the 2015 Act. IPAT’s reasoning—that a publisher cannot be compelled to publish and that non-publication by itself would not constitute persecution—was not found legally irrational. The Court also echoed the familiar distinction (attributed to Humphreys J in other cases) that the Refugee Convention protects against persecution, not against discrimination or difficulty.

C. Impact

  • Two-track clarity (s.33 vs s.31): The judgment reinforces that rebutting “safe country of origin” status does not dictate the state protection outcome; it merely removes a presumption and requires a full assessment.
  • COI challenges face a high bar: Where IPAT identifies a “mixed picture”, cites critical and favourable material, acknowledges shortcomings, and explains why it prefers one inference, the High Court is unlikely to intervene on “cherry-picking” grounds.
  • Non-reporting remains a live factor: Applicants can argue justified non-reporting, but the decision confirms that tribunals may rationally consider the absence of reporting and test explanations against other evidence (including the applicant’s own described encounters with police).
  • Threshold discipline for “persecution”: The Court’s acceptance that publication-related discrimination (on these facts) did not meet s.7 underscores that not every serious personal or professional constraint amounts to persecution without the requisite severity or repetition.

4) Complex Concepts Simplified

Judicial review vs appeal
Judicial review examines legality, rationality, and fair procedures; it does not re-decide the facts or pick the “better” conclusion. Even if another conclusion was possible, the decision stands if it was reasonably open and adequately reasoned.
“Safe country of origin” presumption (s.33)
If a country is designated “safe”, there is a presumption it is safe for the particular applicant unless the applicant provides “serious grounds” to the contrary. Rebutting the presumption means the decision-maker must assess the claim without that starting advantage; it does not automatically prove persecution nor negate state protection.
State protection (s.31): “reasonable steps” and “effective legal system”
Protection does not require a perfect police force. The legal test looks for reasonable steps, including an effective legal system to detect, prosecute, and punish harms, that is effective and non-temporary, and accessible to the applicant.
COI (“country of origin information”)
COI is objective material (reports from states, NGOs, international bodies) about conditions in the origin country. Tribunals must consider it fairly; courts intervene only if it is ignored, irrationally treated, or reasons are inadequately explained.
Persecution vs discrimination (s.7)
Persecution requires sufficiently serious harm (by nature or repetition) amounting to a severe violation of basic human rights. Discrimination or social difficulty may be relevant context, but does not automatically meet the threshold.

5) Conclusion

[2026] IEHC 185 consolidates a practical approach to state protection judicial reviews: rebuttal of the s.33 presumption and a finding of effective state protection can coherently coexist; a tribunal that explicitly applies the B v. IPAT [2019] IEHC 763 framework, engages with both supportive and critical COI, and explains why it finds protection available will generally withstand “cherry-picking” and irrationality challenges. The judgment also confirms that non-reporting to police is neither decisive nor irrelevant, and that alleged discriminatory constraints (such as publishing difficulties) must still meet the high statutory threshold for “persecution” under s.7.