P. [Zimbabwe] v International Protection Appeal Tribunal & Ors (Approved)

These judicial review proceedings relate to a decision to refuse to recognise the Applicant as a refugee and/or as a person entitled to subsidiary protection. The decision was made, on appeal, by the International Protection Appeals Tribunal (" IPAT "). The IPAT held, in effect, that the Applicant's claim lacked " general credibility ". This finding was grounded, principally, on supposed inconsistencies in the detail of the claim for international protection as outlined by the Applicant at the oral hearing before the IPAT as compared to that outlined by him at earlier stages in the immigration process.

The judicial review proceedings initially came on for hearing on 23 January 2025. The proceedings were part-heard before being adjourned to allow the parties file further written legal submissions. The hearing resumed on 18 June 2025 and judgment was reserved.

Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended) stipulates that an application for leave to apply for judicial review of a decision of the IPAT shall be made within the period of twenty-eight days commencing on the date on which the person was notified of the decision concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made. Under the version of the Rules of the Superior Courts then in force, an ex parte application for leave had been regarded as having been " made " when moved or opened before a judge of the High Court ( Heaney v. An Bord Pleanála [2022] IECA 123).

(These proceedings predate the amendment introduced under the Rules of the Superior Courts (Order 84) 2024 whereby an application for leave is now treated as having been " made " on the date upon which papers are filed in the Central Office of the High Court).

The IPAT's decision was notified to the Applicant on 18 July 2023. The statement of grounds and verifying affidavit were not filed until 28 September 2023. The application for leave was opened before the High Court (Hyland J.) on 16 October 2023. Leave to apply was granted on 6 November 2023. The order indicates that leave has been granted without prejudice to the determination, at the substantive stage, of any point in relation to time-limits.

The twenty-eight day period expired on 14 August 2023. The application for leave was not " made " until 16 October 2023. This is some sixty-three days after the expiration of the time-limit. It is necessary, therefore, for the Applicant to seek an extension of time.

The explanation given on affidavit for the delay is as follows:

The principles governing an extension of time under the original version of section 5 of the Illegal Immigrants (Trafficking) Act 2000 were considered by the Supreme Court in G.K. v. Minister for Justice [2002] 2 IR 418. The judgment emphasises that the statute does not say that the time may only be extended if there were " good and sufficient reason for the failure to make the application within " the prescribed period. The Supreme Court has recently reiterated, in the context of the similarly worded time-limit under the Planning and Development Act 2000, that the provision does not say that time may only be extended if there is good and sufficient reason for the failure to make the application within the prescribed period, which would focus exclusively on the reasons for the delay, but instead refers to " good and sufficient reason " for extending the period, which involves a broader discretion ( Thomson v. An Bord Pleanála [2025] IESC 31 (at paragraphs 67 to 69)). This is an important distinction in a case such as the present where, if considered in isolation, the explanation for the delay within the twenty-eight day period might not have been enough to justify an extension of time. The judgment goes on to state (at paragraph 79) that it may of course be very important for an applicant to seek to explain the entire period of delay, and that a failure to do so may normally put the applicant at serious risk of not getting an extension or even give rise to a presumption against the grant of an extension. However, the Supreme Court rejected a submission that any such failure was per se fatal to an application for an extension of time.

It is also instructive to consider the analogous principles governing an extension of time under Order 84, rule 21. These have recently been summarised by the Court of Appeal in Arthropharm (Europe) Ltd v. Health Products Regulatory Authority [2022] IECA 109 (at paragraph 87). The factors of which account may be taken will include the nature of the order or actions the subject of the application, the conduct of the applicant, the conduct of the respondent, the effect of the decision it is sought to challenge, any steps taken by the parties subsequent to that decision, and the public policy that proceedings relating to the domain of public law take place promptly except where good reason is furnished. The " blameworthiness " of an applicant is relevant, albeit as only one such factor to be weighed in the balance.

It should be observed that the threshold under Order 84, rule 21 appears to be a higher one, insofar as the court, in addition to being satisfied that " good and sufficient " reason exists for an extension of time, must also be satisfied, as a matter of fact, that the circumstances which resulted in the delay were outside the control of the applicant. There is no equivalent requirement under section 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended).

For the reasons which follow, this court is satisfied that there is " good and sufficient reason " for extending time in this case.

First, the failure to move the leave application within the twenty-eight day period has not caused any actual delay to the proceedings coming on for substantive hearing. This is significant: the legislative intent underlying the imposition of a short time-limit is to ensure that any legal challenge to the implementation of an immigration decision, which meets the leave threshold, be heard and determined promptly. The twenty-eight day time-limit is complemented by a statutory provision to the effect that the High Court shall give such priority as it reasonably can, having regard to all the circumstances, to the disposal of specified immigration proceedings (Section 5(7) of the Illegal Immigrants (Trafficking) Act 2000 (as amended)). The time-limit does not exist in a vacuum nor is it intended to penalise applicants. Rather, the time-limit is intended to facilitate the prompt hearing and determination of legal challenges to immigration decisions. If non-compliance with the time-limit has not caused any actual delay, then it would be disproportionate to dismiss proceedings on this basis.

On the facts of the present case, the time-limit expired on 14 August 2023, i.e. a date within the long vacation. Had the leave application been " opened " on that date, it would likely have been adjourned for hearing to a date in the new legal term. Put otherwise, compliance with the time-limit would not have made any difference to the date upon which leave was granted nor the date of the first directions hearing.

The delay in the case coming on for substantive hearing was contributed to by the failure on the part of the Respondents to deliver their opposition papers within the time stipulated in the order granting leave by reference to Order 84, rule 22(4). The opposition papers should have been filed by the first week of December 2023; in the event, they were not filed until the end of February 2024. This period of delay is similar to that incurred in respect of the leave application. Thereafter, the proceedings were adjourned from time to time in the directions list. The proceedings were not allocated a hearing date until July 2024: the hearing was fixed for 23 January 2025. The proceedings had been part-heard on that date and then adjourned to allow the parties to file supplemental written legal submissions. The hearing resumed on 18 June 2025.

Put shortly, the failure to comply with the time-limit has not made any contribution to the delay in the proceedings coming on for substantive hearing.

Second, the lack of prejudice to the Respondents must be weighed against the potential prejudice to the Applicant. The practical effect of the refusal of an extension of time would be to preclude the Applicant from challenging what he says is an invalid decision refusing him international protection. This is a significant prejudice and occurs in circumstances where the Applicant himself is not to blame for the failure to comply with the time-limit.

The third reason is closely related to the second. In the present case, the application for an extension of time and the substantive judicial review were heard together, i.e. as part of an omnibus hearing. (It will be recalled that the court granting leave had not determined the time-limit point conclusively). The practical consequence of this procedural history is that this court has had the benefit of full argument on the substantive judicial review prior to its ruling on the time-limit point.

There was some debate at the hearing before me as to the extent, if any, to which the court is entitled to have regard to the underlying merits of the judicial review proceedings in deciding whether to extend time. Certainly, in a case where an application for an extension of time is addressed in advance of the trial of the action, the merits will generally only be relevant if the claim for judicial review lies at either end of a spectrum, i.e. the claim is either unarguable or unanswerable. Were it otherwise, an application for an extension of time would be converted into a trial of the merits, defeating at least part of the purpose of the rule giving rise to the necessity to seek an extension of time in the first place ( Arthropharm (Europe) Ltd v. Health Products Regulatory Authority (cited above)).

Different considerations pertain in cases, such as the present, where the application for an extension of time has been heard in tandem with the substantive judicial review. It would be artificial for the trial judge, having heard the proceedings in full, to close his or her mind to the underlying merits of the case. It would be disproportionate to refuse an application for judicial review in immigration proceedings, which the court has determined to be well founded on the merits, on the basis that the leave application was out-of-time by a number of weeks. The disbenefit to the applicant, i.e. the loss of an opportunity to a proper determination of their claim for international protection, would be out of all proportion to any benefit to the public interest in the expeditious resolution of legal challenges. This is especially so where the time-limit expired during the long vacation and the non-compliance did not cause any actual delay.

This is illustrated by the circumstances of the present case. The objective which the statutory time-limit had been intended to achieve, namely the prompt resolution of legal challenges to immigration decisions, has not been achieved. A legal challenge to an immigration decision, which had been made in July 2023, has only been resolved by July 2025. This court has concluded, for the reasons outlined in the balance of this judgment, that the IPAT's decision to refuse international protection is invalid. The refusal of an extension of time would only serve to penalise the Applicant by denying him a lawful determination of his application for international protection. There would be no countervailing benefit to the public interest.

For completeness, it is necessary to refer to the main precedent relied upon by the Respondents in relation to an extension of time, namely the judgment of the High Court (Barr J.) in G.K. v. International Protection Appeals Tribunal [2022] IEHC 204. The precedent is distinguishable from the circumstances of the present case on the grounds, first, that this court has concluded that the application for judicial review is well founded; and second, that the failure to comply with the time-limit in G.K. does not appear to have made any contribution to the delay in the substantive judicial review coming on for hearing.

The Applicant has sought leave to amend his statement of grounds. The Respondents have adopted a neutral stance to the amendment application: this is without prejudice to their position on the time-limit point (above).

The application for leave to amend has been made pursuant to the provisions of Order 84, rule 23. Having regard to the principles stated in Keegan v. Garda Síochána Ombudsman Commission [2012] IESC 29, [2012] 2 IR 570, this court is satisfied to allow the amendments. The amendments involve little more than an elaboration upon the previously pleaded case. The amendments, in effect, flesh out the existing plea, i.e. that the IPAT failed to assess properly the Applicant's general credibility, by adding express reference to the well-known principles in I.R. v. Minister for Justice and Equality [2009] IEHC 510, [2015] 4 IR 144.

The amendments do not give rise to any prejudice to the Respondents. The case stands and falls on an analysis of the IPAT's decision, read in context with the relevant documentation, including, in particular, the questionnaire and the report of the section 35 interview. This documentation had already been exhibited as part of the proceedings. Counsel on behalf of the Respondents was able to advance detailed counterarguments, notwithstanding the late introduction of the amendments.

The procedure under the International Protection Act 2015 (" IPA 2015 ") involves a number of different stages. The first stage consists of what is described as a " preliminary interview " pursuant to section 13 of the Act. The stated purpose of a preliminary interview is to establish, among other things, whether the interviewed person wishes to make an application for international protection, and, if so, the general grounds on which the application is based. The second stage of the procedure entails the completion of a written questionnaire described as an " Application for International Protection Questionnaire ". The third stage in the procedure consists of a " personal interview " with an applicant pursuant to section 35 of the International Protection Act 2015.

The IPAT is required, in co-operation with an applicant, to assess the relevant elements of their application for international protection (IPA 2015, section 28). The assessment shall be carried out on an individual basis and shall include taking into account, inter alia , the general credibility of the applicant.

Section 28(7) of the IPA 2015 relieves an applicant of having to confirm certain aspects of their claim where certain criteria are fulfilled. This is often referred to as affording an applicant the " benefit of the doubt ". This is a concept derived from the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection.

This concept is reflected under section 28(7) of the IPA 2015 as follows:

The legal effect of this provision has been explained as follows by the High Court (Ferriter J.) in A.H. v. International Protection Appeals Tribunal [2022] IEHC 84 (at paragraph 17):

The parties are agreed that the principles governing the assessment of general credibility are as stated in I.R. v. Minister for Justice and Equality [2009] IEHC 510, [2015] 4 IR 144.

The parties also cited the European Union Agency for Asylum, Practical Guide on Evidence and Risk Assessment (2024). The guide states (at page 103) that " general credibility " is understood as a reference to the " credibility record " of an applicant as an asylum seeker and concerns " all important factual elements related to the actions of the applicant that become known in the asylum procedure ".

It is stated further as follows (at page 103):

Relevantly, the threshold to be met is stated as follows (at page 104):

As to the reliance which may be placed on inconsistencies in reaching a finding on general credibility, the guide states as follows (at pages 70 and 72):

Section 28(4) of the International Protection Act 2015 provides, inter alia , that the assessment by the IPAT shall be carried out on an individual basis and shall include taking into account all relevant facts as they relate to the country of origin at the time of taking a decision on the application, including laws and regulations of the country of origin and the manner in which they are applied.

The proper approach to be adopted in the assessment of country of origin information has been explained by the Court of Appeal in R.A. v. Refugee Appeals Tribunal [2017] IECA 297. This judgment was delivered in the context of the domestic legislative regime prior to the International Protection Act 2015, but the principles apply equally to that Act. This is because the domestic legislation, in each instance, reflects the relevant EU legislation.

The Court of Appeal held that the obligation on the part of the decision-maker is to consider only relevant country of origin information. There is no need for the decision-maker to consult country of origin information in a ritualised or mechanistic fashion in every single case, regardless of the personal circumstances of the applicant or the nature of the claim made by the applicant.

In most cases, however, country of origin information will be of use in ascertaining whether the social, political and other conditions in the country of origin are such that the events recounted, or the mistreatment claimed to have been suffered, may or may not have taken place.

The Court of Appeal approved of the following passage from Goodwin-Gill, The Refugee and International Law (Clarendon Paperbacks, Oxford) (which had been cited by the High Court (Kelly J.) in Camara v. Minister for Justice Equality and Law Reform , unreported, 26 July 2000):

The Court of Appeal also approved of the following statement of principle:

The Applicant completed the detailed questionnaire and same is date-stamped as having been received by the International Protection Office on 23 March 2022.

The essence of the Applicant's claim for international protection is stated as follows:

The section 35 interview was conducted on 14 September 2022. The essence of the claim for international protection is stated as follows (in response to questions 16 and 18):

In response to a question in respect of the location where he mined for gold, the Applicant identified a mine (Mine A) as the " main one we were doing at the time ". The Applicant also explained that he had been " doing samples " at another mine (Mine B) on the date of the alleged threat.

The IPAT's decision consists largely of a narrative of the procedural history and of the course of the evidence at the oral hearing before it. There are very few findings of fact recorded.

The narrative records that the presenting officer had questioned the Applicant in respect of supposed inconsistences in his account of events. In particular, the presenting officer identified supposed inconsistencies in the precise employment status of the Applicant. The presenting officer put it to the Applicant that he had claimed, in his section 35 interview, that a named individual (hereinafter " Y ") and himself were partners rather than employer/employee. With respect, the use of the concept of " partnership " in the question was unfair and does not accurately reflect what the Applicant had said in his section 35 interview. The Applicant never used the word " partner ". The language used in response to Questions 18, 23 and 24, i.e. "[Y] used to share some jobs with me in gold mining "; " we pay him a royalty "; " The day [Y] rang me we were doing some samples at [Mine B]"; and "[Y] only except if I need boys for loading or for explosives if required " is not inconsistent with the Applicant describing himself as employed on a commission basis or as being self-employed.

The presenting officer also queried whether the Applicant had actually worked at Mine A or whether, alternatively, he had (merely) read an article which stated that this location had been attacked by a machete gang. The presenting officer put it to the Applicant that he had previously omitted any reference to a third mine, Mine C, which he now said was the location at which he had ordinarily been working.

The narrative also records that the Applicant recounted, for the first time at the oral hearing, the following event:

The IPAT identified the " material facts of the case " to be assessed as follows (at paragraph 31):

In the event, however, the IPAT did not make an express finding on either of these issues. It is especially surprising that the IPAT did not address the allegation that the Applicant's home had been burnt down. This was the core allegation in support of his claim for international protection.

The curial part of the IPAT's decision reads as follows (paragraphs 37 to 41):

As appears, the IPAT identifies two potential concerns in respect of the Applicant's claim. The first potential concern relates to supposed inconsistencies in " central aspects " of his claim. The second potential concern relates to the introduction of " significant new claims ". Ultimately, the IPAT only relies on the first of these two concerns to ground its credibility finding. This is apparent from the third sentence in the penultimate paragraph above: the IPAT states that it found " the inconsistences to be undermining of " the Applicant's credibility. There is no separate reference to the introduction of " significant new claims ".

The fundamental difficulty with this approach is that the IPAT fails to identify the supposed inconsistencies relied upon for the purpose of its credibility finding. The IPAT's decision, to this point, had consisted largely of a narrative of the procedural history, including a summary of the questions asked by the presenting officer. The IPAT itself makes no finding in the earlier part of the decision on the supposed inconsistencies. The most it does is to " note " at paragraph 36 that the Applicant had stated in his section 35 interview that " he had read articles concerning such machete gang attacks ". Having regard to the IPAT's findings in relation to the country of origin information at paragraph 39, this statement cannot sensibly be read as intended to convey a finding by the IPAT that the Applicant had deliberately lied about working at Mine A in order to take advantage of the newspaper article about an incident at that mine. Having found that the country of origin information is supportive of the Applicant's claim, it would be perverse for the IPAT to turn the Applicant's reliance on an aspect of that country of origin information, i.e. the newspaper article, against him.

The closest the IPAT comes to identifying any supposed inconsistencies is the statement in respect of the " nature of [the Applicant's] work and employment relationships ". The IPAT fails to provide any explanation as to what is involved here. The language used conveys the meaning that the IPAT had concerns in respect of the Applicant's description of his employment status, i.e. whether he was a partner or an employee of [Y]. With respect, it is unreasonable for the IPAT to expect a lay person, such as the Applicant, to distinguish between such technical legal concepts. A person, who is paid a commission only or pays out a royalty, has an ambiguous status and it is understandable that a non-lawyer might describe them as either employed or self-employed. The Country of Origin information explains that the artisanal mining sector is informal.

Moreover, the precise nature of the employment relationship does not relate to the substantive basis of the claim made: it is at most merely incidental in the account given ( I.R. v. Minister for Justice and Equality [2009] IEHC 510, [2015] 4 IR 144 (at paragraph 10)). The precise employment status does not affect the core allegation, i.e. that the Applicant was being targeted by the machete gang. Indeed, the IPAT itself identified, at paragraph 31 of its decision, that one of the two " material facts " to be assessed was whether the Applicant had been targeted and threatened by the Mashurugwi who were looking to get their hands on the Applicant's gold. The IPAT fell into legal error by failing to attempt to reach express findings on the core elements of this claim, i.e. that gang members had sought him out and that [Y] had overheard the gang members saying that they were looking to get their hands on the Applicant's gold. Instead, the IPAT sought to rely on what is, at most, a potential ambiguity in relation to a peripheral aspect of this claim, i.e. his precise employment status, to make a finding that the Applicant was not credible. This is unfair in circumstances where employment status was not an issue which had been the subject of specific questions at the section 35 interview and the Applicant had not been given an opportunity to clarify this issue. As explained in the Practical Guide on Evidence and Risk Assessment (cited at paragraph 31 above), any inconsistencies, plausibility issues and lack of sufficient information should be brought to the attention of an applicant.

The guide also explains that not all inconsistencies will lead to a negative credibility finding. It needs to be considered whether the inconsistencies relate to the central elements of a material fact and what level of consistency can be expected from an applicant. Here, the supposed inconsistency relates to a peripheral matter and requires an unreasonable level of precision from the Applicant in relation to what is a technical legal matter.

Counsel on behalf of the Respondents accepted, very properly, that the reasoning in the impugned decision is " not as well expressed as it could have been ". Nevertheless it is submitted that there is a " clear path of reasoning " and that the reasons have to be read in conjunction with the narrative of the evidence.

The difficulty with this submission is that it necessitates attributing the views of the presenting officer, as expressed by way of cross-examination, to the members of the IPAT. This is a stretch in circumstances where the IPAT omits to make findings on many of the examples of supposed inconsistencies.

Counsel on behalf of the Respondents emphasised that a decision of the IPAT is not to be interpreted as if it was legislation or a legal instrument. This submission is well made. As explained in I.R. v. Minister for Justice and Equality (cited above):

This does not, however, require the court of judicial review to " read into " a decision findings or reasoning which are not there. Here, the decision consists largely of a neutral narrative of the procedural history, with the IPAT " noting " a very small number of points.

Counsel for the Respondents cautioned against attaching too much weight to the use of the term " noting " in the decision. It is, of course, correct to say that the IPAT is not obliged to use any particular formula of words in making its credibility findings. Here, however, it is the IPAT itself which has chosen to use the terms " noting " and " noted " in the impugned decision. It is obvious that this usage was deliberate, and that the intention in using the term in paragraph 40 of the decision had been to recall earlier paragraphs where the IPAT breaks off from a neutral narration to " note " its own findings. Put otherwise, the IPAT used the terms " noting " and " noted " to allow its earlier observations to be cross-referenced in paragraph 40. The ordinary and natural meaning of the decision is that where the IPAT wished to pause to record a finding, rather than simply narrate the procedural history, it did so by using the terms " noting " and " noted ". The balance of the decision is largely a neutral narrative.

For completeness, it should be recorded that the IPAT does note (at paragraphs 37 and 38 of its decision) the previous non-disclosure of: (i) the sinister telephone call from a person purporting to be a Zimbabwean policeman, and (ii) the Applicant's considerable involvement with the MDC political party. This belated disclosure is not, however, ultimately relied upon by the IPAT to ground its credibility finding: see paragraph 52 above.

Even if this court is incorrect in concluding that the IPAT did not rely on the previous non-disclosure to ground its credibility finding, same does not provide a lawful basis for the impugned decision. If and insofar as this had been the approach of the IPAT, same fails to appreciate the very different circumstances under which the narrative had been elicited in each instance. As explained in the UNHCR report, Beyond Proof: Credibility Assessment in EU Asylum Systems (May 2013), the circumstances can influence the narrative:

A broadly similar point is made at page 75 of the Practical Guide on Evidence and Risk Assessment (cited at paragraph 31 above):

The various information-eliciting processes to which the Applicant was subjected, as part of the statutory procedure, were all very different. For example, the " personal interview " conducted pursuant to section 35 of the International Protection Act 2015 was very much guided by the interviewing officer. The interviewing officer determined the course of the interview and the areas of discussion. It would have been inappropriate for the IPAT to seek to draw inferences from the content of the interview, without having any regard to the process by which that narrative was elicited as compared to, say, by way of cross-examination by the presenting officer at the oral hearing convened by the IPAT.

There is a qualitative difference between an inconsistency in an individual's evidence, on the one hand, and the disclosure of additional evidence subsequently, on the other. It is, in principle, open to the IPAT to rely on an inconsistency in relation to material matters to ground a finding of lack of credibility. It is also, in principle, open to do so by reference to the belated disclosure of additional information. The decision-maker must, however, be alive to the fact that the disclosure of additional information may simply be as a result of an applicant having been asked more specific questions at a different stage of the immigration process or of an applicant having been afforded more time and space within which to describe the circumstances of their claim for international protection. For example, the initial form which is completed by an intending applicant is short and the mere fact that additional information is subsequently provided in the context of the more detailed questionnaire or the formal interview may not necessarily support an inference of lack of credibility.

The IPAT's decision is vitiated by error of law. The IPAT failed to apply properly the principles governing the assessment of the Applicant's general credibility. If and insofar as the IPAT relied on supposed inconsistences in his evidence in relation to his employment status it erred in law. The precise nature of the Applicant's employment status does not relate to the substantive basis of the claim made: it is at most merely incidental in the account given ( I.R. v. Minister for Justice and Equality [2009] IEHC 510, [2015] 4 IR 144 (at paragraph 10)).

Not all inconsistencies will justify a negative credibility finding. It needs to be considered whether the inconsistencies relate to the central elements of a material fact and what level of consistency can be expected from the applicant. Here, the supposed inconsistency relates to a peripheral matter and requires an unreasonable level of precision from the Applicant in relation to what is a technical legal matter.

If and insofar as the IPAT now contends that it had regard to other supposed inconsistencies, e.g. in respect of the description of the location at which the Applicant had been engaged in gold mining, no such inconsistences are identified as determinative in the impugned decision. This represents a breach of the statutory duty to state reasons. The consideration of any other supposed inconsistencies does not form part of a " clear reasoned path " to the outcome of the application for international protection.

The court's order will recite that an extension of time has been granted pursuant to section 5 of the Illegal Immigrants (Trafficking) Act 2000 (as amended) and that leave to amend the statement of grounds has been granted pursuant to Order 84, rule 23. (Paragraphs 3 to 21 and paragraphs 22 to 24 above).

As to legal costs, this court's provisional view is that the Applicant, having been " entirely successful " in the application for judicial review, is entitled to recover his costs as against the Respondents in accordance with the default position under section 169 of the Legal Services Regulation Act 2015. If the Respondents wish to contend for a different form of costs order, then their solicitor should contact the registrar within fourteen days and arrange to have this matter relisted before me in the new legal term.