Morchiladze v International Protection Appeals Tribunal & Ors (Approved) [2021] IEHC 732 (23 November 2021)

THE HIGH COURT

JUDICIAL REVIEW

[2021] IEHC 732

Record No. 2020/672JR

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000 (AS AMENDED)

AND IN THE MATTER OF THE INTERNATIONAL PROTECTION ACT, 2015

BETWEEN:

KARLO MORCHILADZE

Applicant

-and-

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE & EQUALITY,

IRELAND and THE ATTORNEY GENERAL

Respondents

Judgment of Mr. Justice Cian Ferriter delivered this 23rd day of November 2021

Introduction

1.       In these judicial review proceedings, the Applicant seeks to challenge the lawfulness of a number of aspects of the decision of the first named Respondent (“IPAT”) of 10th June, 2020 which affirmed the recommendation of the IPO (made on 14th January, 2020) that the Applicant not be given a Refugee Declaration or a declaration of subsidiary protection (“the Decision”). 

2.       As the Applicant received the impugned Decision on 13th July, 2020, pursuant to s.5 of the Illegal Immigrants (Trafficking) Act, 2000, an extension of time of 49 days is required.  No issue was taken by the Respondents in respect of the extension of time application.  The Court understands that an extension of time was granted on an ex parte basis on 21st October, 2020 without prejudice to the Respondents’ entitlement to object to same at the substantive hearing.  Insofar as required, I make an Order formally extending time for a period of 49 days pursuant to s.5 of the 2000 Act. 

Background

3.       The material background to these proceedings is as follows.  The Applicant is a Georgian national who arrived in Dublin Airport on 30th May, 2019, when he was interviewed by the IPO pursuant to Section 13(2) of the International Protection Act, 2015 (“the 2015 Act”).  There was a further interview pursuant to Section 13(2) of the 2015 Act on 8th July, 2019. 

4.       The Applicant submitted an Application for International Protection Questionnaire (“AIPQ”) on 26th July, 2019 and was then interviewed by the IPO pursuant to Section 35 of the 2015 Act on 17th December, 2019. 

5.       The Applicant’s essential case is that he was entitled to refugee protection in circumstances where he owed money to various creditors for failed business ventures, that he had been verbally and physically threatened in connection with same and that he feared further attack, persecution and serious harm because of these undischarged debts if he returned to Georgia. 

IPO Report

6.       In its report pursuant to Section 39 of the 2015 Act, the IPO made specific findings as to the credibility of the Applicant’s claims that he owed money to creditors in Georgia.  The IPO officer held (at page 7 of his report) that:-

          “The Applicant provided entirely inconsistent accounts across his interviews and questionnaire.  The substantial discrepancies between these accounts is considered to undermine the credibility of his claimed debts.  In light of the foregoing, the Applicant’s claim that he owes money to creditors in Georgia is not accepted as a material fact”.

7.       On that basis, the IPO recommended that the Applicant be given neither a Refugee Declaration nor a Subsidiary Protection Declaration.

Appeal

8.       The Applicant appealed to IPAT by Notice of Appeal dated 24th January, 2020.  By virtue of Section 43 of the 2015 Act, as Georgia has been designated as a safe country of origin, the Applicant’s appeal was deemed suitable for an accelerated procedure which was then determined on a papers-only basis.

9.       Notwithstanding that the Applicant’s Notice of Appeal stated that additional documentation was “
to follow”, no documentation was put before IPAT’s determination of the Applicant’s appeal.

The Decision

10.     IPAT, in a 20 page decision dated 10th June, 2020, affirmed the IPO recommendation that the Applicant be given neither a Refugee Declaration or a Subsidiary Protection Declaration. 

11.     The Decision, in Part B, “
Case Facts and Documents” sets out the relevant history of the Applicant’s application to that date, including a summary of the allegations made by the Applicant in the s.35 interview report, the allegations made by him in the AIPQ and the allegations made by him in the s.13 interview.

12.     In Part D of the Decision
, “Assessment of Facts and Circumstances”, the Tribunal analyses the Applicant’s claims under the heading:

          “The Appellant owes money to various people for failed business venture(s) he was involved with in Georgia and some of these people have threatened him verbally and physically and he fears further attack and persecution and serious harm because of the undischarged debt(s)”.

13.     In paragraph 30 of the Decision, the Tribunal states that it “has considered all the claims and details furnished by the Appellant in his application for international protection.  The Tribunal notes therefore there is a considerable amount of inconsistency in the claims and information first furnished by the Appellant”.  The Tribunal, at this point in the Decision, then sets out a series of inconsistencies in the claims made by the Applicant as between his s.13 interview, his AIPQ and his s.35 interview. 

14.     At paragraph 31 of the Decision, the Tribunal highlighted in some detail eight inconsistencies it identified following analysis of the information and claims made by the Applicant, as follows:

“[31]  In further analysis of the information and claims made by the Appellant the Tribunal hereunder highlights some of the inconsistencies as follows:-

(i)      The Appellant claims he borrowed 3,000 USD from Paata Kiliptari but later the appellant claims he owes 7,000 to him;

(ii)     The Appellant claims he borrowed 5,000 USD from Irakli Adamia and the he repaid him in at least two tranches of 3,000 USD and from the additional loan from the bank re repaid the sums due to him, yet he claims later that he still owes 3,000 USD to Irakli Adamia;

(iii)     At no point prior to the S. 35 Interview Report was there any reference to the Appellant borrowing any money from Giorgi Tsulaiya & 3 ors. in relation to his claimed car importation business;

(iv)    In the S. 13 Interview he said that Iralei Sharabidze loaned the 15,000 USD; in the S. 35 Interview Report he said he repaid him 2,000 USD but he says he still owes him 10,000 USD;

(v)     Only in the S. 35 Interview Report did the Appellant make any reference to borrowing monies from Paata Kiliptari (3,000 USD), Irakli Adamia (5,000 USD) and Alexander Kvekvelia (2,000 USD);

(vi)    In the S. 13 Interview he said he set up a car importing business in February 2019 whereas in the S. 35 Interview Report he said he started his car importation business in early 2017;

(vii)    In the AIPQ the Appellant claimed that property he gave to the bank as security for a loan was seized by the bank and his family were angry with him for losing their “shelter” and that if he returns to Georgia the people he owes money to will deprive him of his property by force which properties are registered in the names of his relatives. The Applicant claims he has always lived at the address given by him and there was no reference to him or his family living elsewhere. Also at no other point has the Appellant claimed that he experienced problems with his family. The Tribunal also notes the Appellant has not elsewhere claimed he mortgaged property to secure his claimed loans which the Appellant claims was in the name of someone else and that he has a future looking fear of relatives losing their properties which are registered in their names because of the Appellant and his debt;

(viii)   In the AIPQ he said he was threatened by his business partners who were unspecified but in the S. 13 Interview he said he was verbally threatened by Iralei Sharabidze and in the S. 35 Interview Report he said Irakli Adamia assaulted him as he wanted his money back.”

15.     At paragraph 33 of the Decision, the Tribunal noted that the Tribunal had not furnished any documentation to vouch any aspect of the following claims:

“[33]  The Tribunal notes the Appellant has not furnished any documentation to vouch any aspect of the following claims:-

(i)      That he has established business ventures;

(ii)     That he had authority from the Georgian authorities to import vehicles;

(iii)     That he secured loans with a bank for the sum of 20,000 USD and 35,000 USD;

(iv)    That he placed a property as security with the bank for the loan(s);

(v)     That he entered into a loan agreement(s) with a bank and that he completed and/or his family relative completed the loan documentation;

(vi)    The administrative and/or legal steps taken by the bank in realising the security and seizing control of the property;

(vii)    The agreements reached with the various lenders to him.”

16.     It might be noted that the findings of inconsistency at paragraphs 30 and 31 of the Decision and the identification of the matters in respect of which no documentation was provided are matters which go to the core contention made by the Applicant in support of his application for protection, i.e. that he feared for his life because of threats made by creditors arising from his failed business ventures.  It could not, on any objective view, be said that the inconsistencies and related lack of documentation concerned peripheral or immaterial matters. 

17.     The Tribunal then stated as follows at paragraph 34 of the Decision:-

“[34] In light of the lack of documentation the Tribunal has considered the provisions of S. 28(7) of the 2015 Act to ascertain if the Appellant is entitled to the statutory exemption provided for thereunder. The Tribunal finds as follows:-

(a)     The Appellant has not made a genuine effort to substantiate his application;

(b)     All relevant elements at the Appellant’s disposal have not been submitted and a satisfactory explanation regarding any lack of other relevant elements has not been given;

(c)      The Appellant’s statements are found not to be coherent and do run counter to available specific and general information relevant to the Appellant’s case;

(d)     The Appellant did apply for international protection at the earliest possible time; and

(e)     The general credibility of the Appellant has not been established.”

          [emphasis in original]

18.     In light of the findings made by it in respect of the various statutory criteria set out in s.28(7) of the 2015 Act, the Tribunal went on to hold at paragraph 34 of the Decision, that:-

          “The Tribunal is not minded to apply the exemption countenanced by the [sic] s.28(7) of the 2015 Act”.

19.     The Tribunal concluded this part of the Decision, at paragraph 35 of the Decision, by stating that:-

“[35]  Having regard to the foregoing analysis hereinbefore, the Tribunal does not accept as credible the Appellant’s claims that he was involved in business ventures and that he incurred debt in the manner described by him or at all and that he mortgaged property to a bank and that he owed money to people and that he was threatened by some of his former partners and that he had to flee Georgia because thereof.  The Tribunal also notes that the Appellant did not make a report of any attacks on him by persons who he claims to have been known to the police”. 

20.     As a result of this finding of a lack of credibility of the Applicant’s core claims, the Tribunal affirmed (at paragraph 36 of the Decision) the recommendation of the IPO that the Applicant not be given a Refugee Declaration.  These findings were also relied upon in the Tribunal’s analysis of the Applicant’s claim for Subsidiary Protection, which was also rejected. 

The Applicant’s case in this judicial review

21.     The Applicant challenges the lawfulness of IPAT’s Decision on a number of grounds, in particular that:-

(a)     the Tribunal erred in law by not carrying out an assessment of the Applicant’s claim in accordance with its function and duty under the 2015 Act;

(b)     the Tribunal erred in law at paragraph 36 of its Decision by acting irrationally in rejecting the various elements of the Applicant’s claim solely on the basis of s.28(7) of the 2015 Act;

(c)     the Tribunal acted in breach of fair procedures and/or natural and constitutional justice by its reliance on s.28(7) in circumstances where the IPO did not rely on same.

22.     In support of the first ground, in his oral submissions, counsel for the Applicant submitted that the Tribunal’s decision was unlawful in circumstances where the Tribunal, having identified inconsistencies in the Applicant’s account (as set out, in particular, at paragraph 31 of the Decision), then failed to link those inconsistencies to any core findings of fact such as to justify its conclusion as to the lack of credibility of the Applicant’s case.  This was contrasted with the approach of the IPO to the treatment of the inconsistency issue where, it was submitted, the IPO validly sought to link identified inconsistencies and discrepancies in the Applicant’s interviews and questionnaire with an express finding that those inconsistencies and discrepancies undermined the credibility of the Applicant’s case in relation to his claimed debts. 

23.     The Applicant then further submitted that s.28(7) was wrongly introduced against the Applicant on the question of general credibility.  It was submitted, in reliance on obiter dicta of MacEochaidh J. in DE, LE, and SE v. Refugee Appeals Tribunal & Ors. [2013] IEHC 304, that the forerunner of s.28(7) (which was in materially identical terms to s.28(7)) was not a substitute for an assessment of an applicant’s general credibility and findings in relation to same.  It was further contended, in this connection, that the finding made by the Tribunal at paragraph 34 of the Decision that it was “not credible that the Appellant would not be in a position to furnish some proof so as to help support his claims” involved a breach of fair procedures, on the basis that if the Tribunal was minded to make such a finding on an accelerated, “
papers-only” appeal, it was incumbent on the Tribunal to stop its deliberations at that point and invite submissions from the Applicant on the issue to give him a chance to address that.

24.     Finally, counsel for the Applicant contended that while the general position was that IPAT is involved in a de novo review of the issues on an appeal to it, it was unlawful for IPAT to rely on s.28(7) where it had not been relied on by the IPO, although no authority was advanced in support of that proposition. 

Discussion

25.     At this juncture, it is useful to note some important aspects of the statutory scheme as follows:-

(a)     under s.18(1)(e) of the 2015 Act, the Minister is required to give a statement to the Applicant following receipt of an application for protection which,
inter alia, specifies
“the duty of the Applicant under s.27 to cooperate in relation to his or her application”;

(b)     the duty to cooperate is addressed in s.27 of the 2015 Act.  s.27(1) provides that:-

“It shall be the duty of an applicant –

(a)     to submit as soon as reasonably practicable all the information needed to substantiate his or her application;

(b)     to cooperate in the examination of his or her application and the determination of his or her appeal in relation to that application, if any”;

(c)     s.28, headed “
Assessment of facts and circumstances”, sets out the duty on an International Protection Officer, in cooperation with the Applicant, to assess the relevant elements of the application;

(d)     s.28(4)(b) obliges the International Protection Officer and the Tribunal (on an appeal) to take into account “
the relevant statements and documentation presented by the Applicant including information on whether the Applicant has been or may be subject to persecution or serious harm”;

(e)     s.28(7) then provides:

“(7)   Where aspects of the applicant’s statements are not supported by documentary or other evidence, those aspects shall not need confirmation where the international protection officer or, as the case may be, the Tribunal, is satisfied that—

(a)     the applicant has made a genuine effort to substantiate his or her application,

(b)     all relevant elements at the applicant’s disposal have been submitted and a satisfactory explanation regarding any lack of other relevant elements has been given,

(c)     the applicant’s statements are found to be coherent and plausible and do not run counter to available specific and general information relevant to the applicant’s case,

(d)     the applicant has applied for international protection at the earliest possible time, unless the applicant can demonstrate good reason for not having done so, and

(e)     the general credibility of the applicant has been established.”

26.     This provision was described by counsel for the Respondents as a “lifeboat provision” for an applicant in circumstances where it permits the acceptance by the IPO or Tribunal of an applicant’s statements not supported by documentary or other evidence if the various statutory conditions in s.28(7) are satisfied, i.e. it provides for an exemption from the normal rule to the effect that statements of the applicant may not be accepted if they are not supported by documentary or other evidence.

27.     At each relevant stage of the process (AIPQ, IPO section 35 interview, notice of appeal, appeal submission stage), opportunity was given to the Applicant to provide documentation in support of his claims. The Applicant had the benefit of legal advice at appeal stage. However, the Applicant never at any stage in the process submitted any documentation to substantiate his claim, notwithstanding that it might be expected that core elements of his claim would be readily capable of documentary substantiation (e.g. his claim to have taken out a loan from a bank; his claim that the bank seized property he had mortgaged to them and sold it; his claim that he had also borrowed significant amount of monies from business partners).  One also might have expected that documents would exist to substantiate his claims to have set up a car importing business and to have, at an earlier point, be involved in the business of selling food. 

28.     In my view, counsel for the Respondents was correct in his submission that an objective and common sense reading of the Tribunal’s decision in this case shows that the Tribunal rejected the credibility of the Applicant’s claims on the basis of the various matters identified from paragraphs 29 to 31 and 33 of the Decision.  s.28(7) was then properly considered by the Tribunal to see whether the Applicant was entitled to the benefit of the statutory exemption contained in that provision.

29.     Counsel for the Applicant sought to emphasise that in paragraph 34 of the Decision, the Tribunal looked at each of the statutory conditions (a) to (e) in the negative.  However, it is clear on an objective reading of paragraph 34 that the Tribunal went through each of the statutory criteria to see if the benefit of that provision could be available to him and determined that each of same was not satisfied on the basis of the material before the Tribunal.  The Tribunal’s finding that it was not credible that the Applicant would not have been in a position to furnish some proofs so as to help support his claims was a manifestly tenable finding in light of the common sense proposition that loan dealings with a bank, financial dealings and agreements with business partners, the furnishing of security and steps taken to enforce the security are all matters which one would except to be supported by some documentary proof.  In the Court’s view, the approach of the Tribunal on the facts of this case was unimpeachable. 

30.     The point is well made by counsel for the Respondents that the analysis in paragraph 34 of the Decision is a self-standing analysis of whether the Tribunal was prepared to accept the Applicant’s account in the absence of documentary proof.  The Tribunal having determined that the s.28(7) exemption did not apply, there was nothing unlawful in the Tribunal thereafter going on to reject the general credibility of the Applicant’s claims, a rational basis for those conclusions having been clearly set out in the analysis from paragraphs 29 to 33 of the Decision.

31.     In the Court’s view, it is clear that the Tribunal conducted a careful analysis of the Applicant’s contentions, highlighted the clear and material inconsistencies in his various accounts, and attached weight to the absence of any documentation to support the core elements of the Applicant’s claim.  This is not a situation where a finding of lack of general credibility was made by reference to s.28(7) alone.  There was clearly a full credibility analysis conducted by the Tribunal outside s.28(7) and therefore the obiter dicta of MacEochaidh J. in DE, LE and SE cannot avail the Applicant. 

32.     The Court also rejects the contention that there was a failure by the Tribunal to link the inconsistencies to findings of fact such as to justify a conclusion of a lack of credibility.  The inconsistencies identified by the Tribunal all went to the core elements of the Applicant’s claim.  It is clear from an objective reading of the Tribunal’s decision that the Tribunal was relying on those inconsistencies, along with the absence of any documentary proof in respect of the core aspects of the Applicant’s claims, to reach a finding of lack of credibility.  There is nothing unlawful in that approach.

33.     No authority was advanced in support of the proposition that, notwithstanding the accepted position that the review by the Tribunal is a de novo review on the papers, it was not open to the Tribunal to consider s.28(7) for the first time on appeal.  While it is correct to say that it is not clear on the face of the IPO Decision whether the IPO did consider s.28, in light of the de novo nature of the review, I do not see how the Tribunal is shut out from seeking to consider whether the Applicant may be entitled to get the benefit of a statutory exemption which is in the Applicant’s interests, even if that exercise was not done at first instance.  

34.     Finally, I do not accept the Applicant’s submission that the Tribunal should have stopped its deliberations and invited submissions from the Applicant on the question of its proposed finding that it was not credible that the Applicant would not be in a position to furnish some proofs so as to help him support his claims.  Such an approach would fly in the face of the obligation on the Applicant, which was clearly highlighted at every stage of the process, that he should furnish any documentation he wishes to rely on to support his claim. 

35.     It is perhaps telling in this regard that the Applicant does not, even at this point, seek to identify documents which he wanted to rely on in support of his claims but which he was not, for some good reason, in a position to rely on at the time of the Tribunal’s consideration of his appeal.  The Applicant had the benefit of legal advice at all material stages.  If he wanted to rely on documentation to support his claims, he had every reasonable opportunity to do so.  Depending on the nature of the claims advanced by an applicant, an applicant might clearly run the risk of the Tribunal (just as it did here) reaching a finding of lack of credibility stemming from the absence of documentation.  The nature of the Applicant’s case here was such that all the core elements (incurrence of debt, furnishing security to a bank for a loan, bank taking steps to enforce security against property, getting loans from partners in a business venture) are matters which, in the ordinary course, would be documented or where the absence of documentation would clearly call out for some convincing explanation. 

Conclusion

36.     In the circumstances, the Applicant’s claim for relief is refused.

Result:     The Applicant’s claim fro relief has been refused.

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