H v International Protection Appeals Tribunal & Anor (Approved)

Factual and Procedural Background

The Applicant, a national of Pakistan who arrived in The State in 2010 through marriage to an EU citizen, was convicted of manslaughter following a 2011 incident involving the death of a fellow national. While imprisoned, the Applicant applied for international protection in May 2017, asserting a risk to his life from the deceased's family if returned to Pakistan. The International Protection Office (IPO) found the claim credible but refused subsidiary protection due to available state protection in Pakistan. The Applicant appealed to the International Protection Appeals Tribunal ('Tribunal'), which affirmed the IPO’s decision in January 2023. The Applicant’s current legal representatives were unaware of a first questionnaire completed in May 2017 until it was referenced in the Tribunal’s decision. The Applicant seeks judicial review challenging the Tribunal’s decision, primarily on grounds of procedural fairness and the duty of cooperation.

Legal Issues Presented

1. Whether the Tribunal breached the EU duty of cooperation by relying on the absence of affidavits from family members in Pakistan without raising this concern with the Applicant.
2. Whether the Tribunal breached fair procedures and the duty of cooperation by failing to disclose and rely on the first, undisclosed questionnaire completed by the Applicant in May 2017.
3. Whether the Tribunal made a material error of fact concerning the Applicant’s account of reporting threatening phone calls to the police in Pakistan.

Arguments of the Parties

Applicant's Arguments

• The Tribunal breached the duty of cooperation by failing to inform the Applicant of the absence of corroborative affidavits from family members, which was a material concern impacting credibility.
• The Tribunal violated fair procedures and the duty of cooperation by relying on the undisclosed May 2017 questionnaire without providing it to the Applicant’s legal representatives, thereby depriving the Applicant of an opportunity to address its contents.
• The Tribunal made a material error of fact by inaccurately presenting the Applicant’s statements regarding reporting threats to the police in Pakistan.
• The Applicant relied on relevant EU directives, national statutory provisions, and case law to support these contentions, including the Qualification Directive, the International Protection Act 2015, and decisions such as Idiakheua v. Minister for Justice, Olatunji v. RAT, and X v. IPAT.

Respondents' Arguments

• The Tribunal did not rely on the contents of the first questionnaire to assess credibility but referenced it merely as factual background.
• All matters relied upon by the Tribunal were put to the Applicant for comment during the appeal hearing.
• The absence of corroborative evidence was a matter for the Applicant and his legal advisors; the national authority was not better placed to obtain such evidence.
• The paragraph cited as a material error of fact merely recorded submissions by the Presenting Officer and was not a finding by the Tribunal.
• The Tribunal contended that the issues relating to the undisclosed questionnaire were not of substance or significance and therefore did not breach fair procedures or the duty of cooperation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Idiakheua v. Minister for Justice [2005] IEHC 150	Requirement to put material issues of substance and significance to the applicant for comment.	Cited to illustrate the duty of cooperation and fair procedures where tangible issues were not put to the applicant, supporting the Applicant’s argument on procedural fairness.
Olatunji v. RAT and Minister for Justice, Equality and Law Reform [2006] IEHC 113	Obligation to raise significant matters affecting credibility with the applicant.	Followed Idiakheua to reinforce the principle that applicants must be given an opportunity to address material concerns.
B.W. v. Refugee Appeals Tribunal [2017] IECA 296	Failure to disclose material evidence or issues to the applicant can lead to quashing of Tribunal decisions.	Used to emphasize the importance of fair procedures and disclosure in appeals.
X v. IPAT Case C-756/21	Clarifies the duty of cooperation requires an appropriate examination of applications, including consideration of explanations for lack of evidence and general credibility.	Applied to assess the scope of the duty of cooperation and the principle of effectiveness in procedural fairness.
M.M. v. Minister of Justice Case C-277/11	Distinguishes between the factual determination stage (duty of cooperation applies) and the legal appraisal stage (national authority discretion).	Guided the Court in delineating the Tribunal’s obligations regarding cooperation and procedural fairness.
T.B. v. IPAT [2022] IEHC 275	Right to oral hearing when credibility is at issue and inconsistencies are identified but not put to the applicant.	Referenced to support the Applicant’s claim on fair procedures related to credibility assessments.
A.H. & ors v. IPAT [2022] IEHC 84	Benefit of doubt on undocumented aspects requires established general credibility.	Supported the Court’s finding that the Applicant’s credibility had not been established, limiting the applicability of certain statutory protections.
J.H. (Albania) v. IPAT [2018] IEHC 752	Rejecting credibility in absence of documentary evidence is not a breach of statutory provisions.	Reinforced the principle that lack of corroboration alone does not breach procedural rules.

Court's Reasoning and Analysis

The Court analyzed the Applicant’s claims in light of the EU duty of cooperation and fair procedures principles, distinguishing between the factual determination stage, where cooperation applies, and the legal appraisal stage, which lies within the Tribunal’s discretion. The Court found that the absence of affidavits from family members was a matter for the Applicant and his legal advisors, not the Tribunal, as the national authority was not better placed to procure such evidence.

The Court rejected the Applicant’s submission that the Tribunal had a heightened duty to raise concerns about corroboration given the IPO’s earlier credibility finding, noting the appeal hearing is a de novo proceeding requiring a fresh assessment of the claim.

Regarding the undisclosed May 2017 questionnaire, the Court found that the Tribunal did rely on it as part of the evidence assessed, contrary to the Tribunal’s denial. This lack of disclosure deprived the Applicant of an opportunity to address material concerns, breaching the duty of cooperation and fair procedures. The Court emphasized that it cannot be ruled out that the decision might have differed had the questionnaire been disclosed and the Applicant warned of its contents.

On the alleged material error of fact, the Court found no error as the relevant paragraph merely recounted submissions by the Presenting Officer, not findings by the Tribunal. Any issues should have been raised at the hearing.

In sum, the Court quashed the Tribunal’s decision due to the procedural breach related to non-disclosure of the first questionnaire and remitted the matter for a fresh appeal hearing.

Holding and Implications

The Court's final decision is to GRANT AN ORDER OF CERTIORARI quashing the decision of the International Protection Appeals Tribunal dated 12 January 2023.

The case is remitted to the Tribunal for a fresh appeal hearing. The direct effect is that the Applicant’s protection claim will be reconsidered with full disclosure and opportunity to address all evidence. No new legal precedent beyond the application of existing principles on duty of cooperation and fair procedures is established by this decision.