N. and Anor v An International Protection Officer and Ors (Approved)

Factual and Procedural Background

The Applicants are nationals of Country A of Group X ethnicity (a mother and her minor daughter). They applied for international protection in Country B on 26 January 2023. The Applicants' protection claim was founded on fear of persecution or serious harm from an individual of Group Y ethnicity, alleged lack of State protection due to the individual's political connections with Political Party A and shared Group Y ethnicity with police officers, and related gender‑based violence. The personal interview under s.35 of the International Protection Act 2015 took place on 10 June 2024 and was conducted by a Panel Member believed by the First Applicant to be from Country A and of Group Y ethnicity. The First Applicant did not disclose the Group Y identity of her abuser during the IPO questionnaire and did not complain about the interview at its close, but contacted her attorney immediately after to raise concerns about the Panel Member's nationality/ethnicity and to request a fresh interview. The attorney wrote to the International Protection Office on 11 July 2024 requesting a fresh interview; the IPO did not respond to that letter. A draft s.39 report prepared by the Panel Member was adopted without change by an International Protection Officer on 6 September 2024. The Minister refused Permission to Remain on 24 September 2024 and a s.40 notification issued on 25 September 2024. An appeal to the Tribunal was lodged on 16 October 2024. Leave to apply for judicial review was granted ex parte on 6 December 2024. This judgment was delivered by Judge Phelan on 25 February 2026.

Legal Issues Presented

1. Whether the personal interview conducted under s.35(1) and s.35(3) of the 2015 Act was carried out under conditions that allowed the Applicant to present her application in a comprehensive manner, having regard to cultural origin and vulnerability.
2. Whether the nationality and ethnicity of the Panel Member (same country of origin as Applicant and of Group Y) gave rise to a reasonable apprehension of bias (real or perceived) in the examination process.
3. Whether the International Protection Office lawfully failed to consider and respond to post‑interview representations (the attorney's letter of 11 July 2024) prior to finalising the s.39 report.
4. Whether the assessment of State protection in the s.39 report was supported by adequate country‑of‑origin information.
5. Whether judicial review was an appropriate remedy given the existence of an appeal to the Tribunal.

Arguments of the Parties

Applicants' Arguments

• The interview process was flawed by cultural insensitivity, oppressive interviewing and re‑traumatisation, because the Panel Member was believed to be from Country A and of Group Y, while the Applicant is Group X and had been abused by a Group Y person.
• There was perceived or real bias arising from shared nationality/ethnicity between the Panel Member and the alleged perpetrators and authorities in Country A.
• The IPO failed to consider post‑interview representations (the attorney's letter requesting a fresh interview) before preparing and adopting the s.39 report.
• The State protection assessment relied on unsupported or incorrect COI (including reference to a non‑existent or misspelt NGO) and irrelevant generalisations (e.g. "social collectivism").
• Because the interview was tainted, judicial review is necessary notwithstanding the availability of an appeal to the Tribunal.

Respondents' Arguments

• The nationality and ethnicity of a Panel Member do not in themselves undermine the lawfulness of an interview; only evidence of actual bias would do so.
• Panel Members are assigned based on availability; no inquiry is made into ethnicity or nationality and assignment practice is appropriate. Applicants may request reassignment in advance and such requests are facilitated when practicable.
• The attorney's letter was considered "internally" and the request for reassignment was deemed inappropriate; the IPO's position was that a fresh interview was not warranted.
• Panel Members receive training (including on unconscious bias and cultural competence) and are required to declare conflicts of interest; the allegation of "real bias" was strongly deprecated.
• Issues concerning the assessment of COI and State protection could properly be addressed on appeal to the Tribunal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first identified the statutory framework: s.35(3) requires interviews to be conducted under conditions allowing applicants to present their case comprehensively, taking account of cultural origin and vulnerability; s.28(4), s.32 and s.39 impose duties to assess individual facts and to use precise, up‑to‑date COI.

The court accepted that while nationality and ethnicity of a decision‑maker are not normally decisive, they may assume special significance where ethnic/national factors are central to the protection claim. The correct bias test is whether a reasonable, fair‑minded and properly informed observer would apprehend a lack of impartiality; in this context that observer must be properly informed about conditions in the country of origin and potential cultural sensitivities.

The court found that the attorney's letter of 11 July 2024 raised substantive, non‑trivial concerns that required consideration (both because of the serious, well‑documented divisions between Group X and Group Y in Country A and because the Applicant's claim directly implicated those divisions). Once raised, such concerns should have been addressed either by reply correspondence or by explicit consideration and reasoning in the s.39 report.

The court observed that the draft s.39 report prepared by the Panel Member and adopted by the International Protection Officer reproduced assertions (including reference to a "Msasa" Project and to "social collectivism" and to the status of informants) that were unsupported, misspelt or not substantiated by COI. The International Protection Officer adopted the draft report without amendment and without any reference to the attorney's letter; there was no satisfactory evidence that the letter had been placed on file and considered by the decision‑maker. Later affidavits by IPO officials did not cure the absence of reasoning in the adopted report and could not substitute for consideration demonstrated on the face of the decision.

On exhaustion of remedies, the court accepted that an appeal to the Tribunal can remedy COI assessment issues, but held (relying on Stefan) that where an unlawful interview may have prevented a claimant from presenting material at first instance, judicial review is an appropriate remedy because the interview is foundational to the process and an appeal may not cure consequential unfairness.

In light of the above, the court concluded that the IPO's failure to address the solicitor's representations and the uncritical adoption of an inadequately supported draft report meant the interview process and consequent decisions were tainted and unsustainable in law.

Holding and Implications

HOLDING: The court quashed the s.39 report and the s.40 notification (and related decisions based on the flawed interview process) as unsustainable in law.

Implications: The direct effect is that the IPO's s.39 report and the s.40 notification are set aside and the matter must be remitted for fresh consideration consistent with the court's reasoning (the court ordered further directions on final orders and listed the matter for mention). The judgment identifies procedural obligations on the IPO to consider post‑interview representations and to record reasons when deciding to proceed on an interview record that is the subject of substantive complaint. The court did not purport to establish a novel substantive precedent on State protection assessment and indicated that issues of COI/state protection could be addressed on appeal to the Tribunal.