N.G. v The International Protection Appeals Tribunal & Ors (Approved)

Factual and Procedural Background

The Applicant, a national of Albania, sought international protection in the State, claiming threats and death threats arising from a business dispute in Albania during the summer of 2017. The dispute involved accusations of missing money between two business owners, Y and X. The Applicant was perceived as associated with X and received threatening calls from Y and his associates, including threats directed at the Applicant's father. X was murdered in December 2017, with Y convicted and imprisoned for the murder. Despite this, the Applicant continued to receive threats until leaving Albania in June 2018. The Applicant did not report these threats to the police due to distrust and fear, citing corruption within the Albanian police. After traveling through Greece, Italy, and Belgium without seeking protection, the Applicant applied for international protection in the State in June 2020.

Following interviews and submissions, the International Protection Office (IPO) recommended refusal of refugee status and subsidiary protection, considering Albania a safe country of origin. The Applicant appealed to the International Protection Appeals Tribunal (the Tribunal), which affirmed the refusal in October 2022. The Applicant sought judicial review challenging the Tribunal’s decision, contending errors in law regarding the assessment of risk and State protection. Leave for judicial review was granted in November 2022.

Legal Issues Presented

1. Whether the Tribunal erred in law by finding a real risk of serious harm but refusing subsidiary protection on the basis that State protection was available.
2. Whether the Tribunal failed to properly apply section 28(6) of the International Protection Act 2015, concerning the rebuttable presumption of future risk based on past harm.
3. Whether the Tribunal erred in relying on Albania's designation as a safe country of origin without conducting an individualized analysis under section 33 of the 2015 Act.

Arguments of the Parties

Applicant's Arguments

• The Tribunal wrongly found both a real risk of serious harm and that State protection was available, which the Applicant contends are mutually exclusive under EU law concepts.
• The Tribunal failed to properly apply the rebuttable presumption under section 28(6) of the 2015 Act, requiring positive and express consideration of whether future harm would not occur.
• The Tribunal improperly relied on Albania’s safe country of origin status without conducting the required assessment under section 33 of the 2015 Act, including failing to adequately consider corruption and ineffectiveness of police protection.

Respondents' Arguments

• The Tribunal lawfully concluded the Applicant was not entitled to subsidiary protection following a proper application of the legal provisions, including section 28(6).
• The Tribunal conducted a comprehensive assessment of the risk and State protection, considering Albania’s safe country status alongside detailed country of origin information (COI).
• The Tribunal’s conclusion that effective State protection was available was reached after a thorough evaluation of the Applicant’s circumstances and relevant COI.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court examined the legal framework defining subsidiary protection under section 2 of the International Protection Act 2015 and corresponding EU Qualification Directive provisions. It emphasized that a “real risk of serious harm” and the availability of effective State protection are distinct but intrinsically linked elements to be considered sequentially. The Court relied on authoritative High Court decisions, particularly T.A. v. IPAT & Ors., which clarified that establishing a real risk of harm does not automatically entitle an applicant to protection if effective State protection exists.

The Court found no error in the Tribunal’s incremental approach: first assessing the existence of a well-founded fear or real risk of harm and then evaluating the availability of State protection. The Tribunal’s acceptance of the Applicant’s narrative and findings of risk were not disputed, but the Tribunal lawfully concluded that State protection was available in Albania.

Regarding the rebuttable presumption under section 28(6), the Court held that the Tribunal had effectively applied this evidential advantage by finding a real risk of future harm based on past persecution. The Tribunal explicitly acknowledged the possibility of future harm, thereby satisfying the statutory requirement. The Applicant’s argument that the Tribunal failed to expressly consider the presumption was rejected as the decision’s terms reflected awareness and application of this principle.

On the issue of Albania’s designation as a safe country of origin, the Court found that the Tribunal did not rely solely on this status but conducted a detailed assessment pursuant to section 33 of the 2015 Act. The Tribunal reviewed extensive country of origin information, including reports highlighting corruption and governmental measures addressing such issues. It also considered the Applicant’s particular circumstances, including his failure to report threats to authorities and the criminal prosecution of the alleged perpetrators. The Court was satisfied that the Tribunal applied the correct legal test and engaged thoroughly with the evidence before concluding that effective State protection would be available.

The Court declined to refer any preliminary question to the Court of Justice of the European Union, finding no necessity based on the issues presented.

Holding and Implications

The Court REFUSED THE RELIEF SOUGHT and upheld the decision of the International Protection Appeals Tribunal dated 3 October 2022.

This decision confirms the established legal principle that a finding of a real risk of serious harm does not, by itself, entitle an applicant to subsidiary protection where effective State protection is available. The Tribunal’s methodical and legally sound approach to assessing risk and State protection was endorsed, reinforcing the sequential and distinct consideration of these elements under the International Protection Act 2015 and EU law. No new precedent was established; the ruling affirms the application of existing legal standards to the facts of this case.