Summary of Judicial Review Opinion

Factual and Procedural Background

The Applicant, a national of The Country, sought international protection in this jurisdiction on the basis that he is a member of the Jehovah's Witnesses religion and had been subject to assaults and threats in The Country because of his religious beliefs. The Applicant arrived in the State in May 2023 and applied for international protection. The International Protection Office (IPO) conducted an interview and made a first instance decision. The Applicant appealed to the International Protection Appeals Tribunal (referred to throughout as "The Tribunal"), which issued a decision dated 23 January 2024 refusing both refugee status and subsidiary protection. The Tribunal accepted that the Applicant had suffered past persecution and acknowledged that the Applicant was entitled to the benefit of the rebuttable evidential presumption in section 28(6) of the International Protection Act 2015 (the "2015 Act"), but it concluded that state protection in The Country was effective and available and therefore refused protection.

The Applicant obtained leave to apply for judicial review of the Tribunal's decision on 13 May 2024 and advanced grounds challenging, inter alia, the Tribunal's application of the section 28(6) presumption, the Tribunal's treatment of country of origin information (COI) (particularly differences between 2022 and 2023 Freedom House reports), and the Tribunal's approach to section 33 of the 2015 Act concerning safe-country designation. The hearing was before Judge O'Donnell, who delivered judgment on 18 November 2025 refusing the application for relief.

Legal Issues Presented

1. Whether certiorari should be granted for failure to apply the rebuttable evidential presumption in section 28(6) of the 2015 Act.
2. Whether certiorari should be granted because the Tribunal's finding on the availability of state protection was irrational or materially flawed by relying on the omission of a statement from an updated country report (the Freedom House reports) rather than a proper assessment of the COI as a whole.
3. Whether certiorari should be granted because the Tribunal failed to apply the proper approach to assessing state protection and to apply section 33 of the 2015 Act correctly in the context of a designated safe country of origin.

Arguments of the Parties

Applicant's Arguments

• The Applicant argued that, although the Tribunal nominally referred to section 28(6), it proceeded to conduct a conventional forward-looking analysis without giving effect to the evidential presumption that past persecution is a serious indicator of future risk; this amounted to an error of law (relying in part on prior High Court authority).
• The Applicant contended that the Tribunal’s conclusion that state protection was available relied improperly or irrationally on the omission of a sentence from the 2023 Freedom House report that appeared in the 2022 report, and that the Tribunal failed to properly weigh other COI that supported a finding of inadequate protection.
• The Applicant asserted that the Tribunal failed to conduct the analysis required by section 33 (safe-country provision) and did not properly record that no “serious grounds” had been submitted, with reliance on the authority of Judge Barrett in a prior High Court decision as to the proper structure of such an assessment.

Respondents' Arguments

• The Respondents accepted the factual history but maintained that the Tribunal’s decision was lawful and reached in accordance with the applicable statutory tests.
• They submitted that the Tribunal explicitly acknowledged and applied the s. 28(6) presumption to the Applicant’s benefit, and that the Tribunal’s subsequent inquiry into state protection properly took place on the footing that a future risk had been established.
• The Respondents argued that the Tribunal did not rest its conclusion on a single omitted phrase from a COI document; rather the Tribunal considered the COI in the round, preferred the more up-to-date material where appropriate, sought clarification from the Applicant and his representatives, and provided reasons for preferring more recent reports.
• Regarding s. 33 and prior authority cited by the Applicant, the Respondents contended there is no legal requirement for the Tribunal to recite a formal checklist of questions and that the Tribunal's analysis, viewed substantively, was consistent with the statutory scheme and relevant case law.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge O'Donnell approached the judicial review on the basis that EU law (the Qualification and Procedures Directives) governs asylum determinations and that the national court must perform a "thorough review" of the reasoning of the competent authority. The Court accepted the factual findings made by the IPO and the Tribunal that the Applicant had converted to the Jehovah's Witnesses religion, had suffered verbal and physical assaults linked to his religion (including incidents documented in police reports), and that those events constituted past persecution.

The Court addressed the Applicant's three distilled legal issues in turn:

1. Section 28(6) evidential presumption:

   The Tribunal expressly acknowledged that the Applicant was entitled to the benefit of the section 28(6) rebuttable presumption. The Court reviewed authorities explaining the effect of s. 28(6) (including Judge Phelan's observations in N.U. and Judge Phelan's clarifying remarks in E.S.) and concluded that:

   • The Tribunal's decision was framed in a section headed "Analysis of Well Founded Fear" and the wording shows the presumption was applied within the forward-looking assessment;
   • Given the Tribunal accepted that past persecution had been established and engaged at length with state protection issues, it was a necessary inference that the Tribunal proceeded on the footing that the Applicant faced a real risk and that the s. 28(6) presumption was engaged;
   • Therefore, the Applicant's argument that the presumption was not applied could not succeed, particularly in light of the authorities acknowledging that express citation of s. 28(6) is not always required if the decision demonstrates awareness and application of the evidential presumption.
2. Treatment of Country of Origin Information (COI) and the Freedom House reports:

   The Tribunal considered multiple COI sources, including the US Department of State Report on Religious Freedom 2022, the European Commission working document, and Freedom House reports for 2022 and 2023. The Tribunal noted that the 2022 Freedom House report contained a statement that religious minorities were "insufficiently protected by the State" (which in an earlier case had led a decision-maker to find protection was not available), whereas the 2023 Freedom House report did not contain that specific sentence. The Applicant contended the Tribunal's conclusion turned irrationally on that omission.

   The Court emphasised that the question on judicial review is whether the Tribunal's treatment of the COI was rational and lawful, not whether a different decision could have been reached. The Court held that:

   • The Tribunal engaged extensively with the COI, sought clarification and submissions from the Applicant where appropriate, and explained why more up-to-date material was preferred in places;
   • The change between the 2022 and 2023 Freedom House reports was a legitimate factor to consider and, taken with the other COI, produced an overall balance in the Tribunal's view that tipped in favour of available state protection;
   • The Tribunal's approach was not irrational or an unlawful over-reliance on a single omitted phrase; rather the Tribunal made a legitimate evaluative judgment on contemporary COI within the permissible range of conclusions.
3. Approach to assessment of state protection and section 33 (safe-country designation):

   The Applicant argued the Tribunal failed to make an express section 33 finding that no "serious grounds" had been submitted and impermissibly relied on the safe-country designation. The Court reviewed relevant authorities (including N.U., E.S., XS and JT and the Court of Appeal's analysis in Z.M.) to explain the correct statutory structure: designation as safe does not eliminate the individual assessment; the applicant may submit serious grounds to displace the safe-country presumption; and section 28 provides for an assessment of facts and circumstances in which section 31 (state protection) is relevant.

   The Court concluded:

   • Although the Tribunal did not set out Barrett J.'s four questions in terms, failure to recite those specific items was not, in itself, fatal where the decision as a whole demonstrates that the Tribunal identified and applied the correct tests;
   • The Tribunal's decision expressly stated the correct starting points: recognition of the s. 28(6) presumption, awareness that Georgia (here described in the opinion as a designated safe country) did not preclude an analysis of state protection, and the requirement that substantial/serious grounds be shown to displace the safe-country designation;
   • On the material before it, the Tribunal conducted the required analysis and reached a conclusion that state protection was effective and non-temporary in the Applicant's circumstances. The Court was satisfied that this conclusion was open on the evidence and that there was a clear basis in the Tribunal's reasoning for inferring that the Applicant had not succeeded in submitting serious grounds under s. 33.

Having considered these issues, Judge O'Donnell concluded that the Applicant's challenges to the Tribunal decision did not establish error of law or irrationality sufficient to quash the decision. The Court emphasised that where the Tribunal's engagement with COI and statutory tests is apparent and the resulting conclusion falls within the range of reasonable decisions, the court should not substitute its own view.

Holding and Implications

Holding: The application for judicial review is refused. The Court's core ruling is:

DISMISSED — the application for relief by way of judicial review is refused.

Implications:

• Direct effect: The Tribunal's refusal of refugee status and subsidiary protection to the Applicant stands; the Applicant's judicial review challenge has been unsuccessful.
• On precedent and legal principle: The decision applies established principles concerning (a) the need for a thorough judicial review under EU law; (b) the operation of the s. 28(6) evidential presumption (which need not always be recited verbatim if the decision demonstrates awareness and application); and (c) the interplay between sections 28, 31 and 33 of the 2015 Act when an applicant is from a designated safe country of origin. The Court reiterated that a Tribunal may prefer more up-to-date COI and must weigh competing COI; where that weighing is rational and explained, it will be upheld on review.
• No broader or novel precedent was created by this judgment; the Court applied and explained existing authorities and held that the Tribunal's decision was within the range of reasonable outcomes on the facts presented.

Procedural note included in the judgment: The Judge indicated a provisional view that, having fully succeeded, the Respondents would be entitled to costs and listed the matter for directions on final orders and costs on 27 November 2025.