M.S.S. v The International Protection Appeals Tribunal & Anor (Approved)

On the 23 May 2025, the court delivered judgment in the applicant's substantive application for judicial review and refused to grant relief for the reasons set out in that judgment, bearing neutral citation: [2025] IEHC 294 . The applicant now applies to the court for leave to appeal to the Court of Appeal pursuant to section 5(6)(a) of the Illegal Immigrants Trafficking Act 2000, as amended, which provides that leave may be granted where " ... the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the [Court of Appeal] ."

For the reasons explained briefly in this judgment the court is not satisfied that the points of law identified by the applicant involve points of law of exceptional importance, and I am not satisfied that it is desirable in the public interest that the points are addressed on appeal to the Court of Appeal.

The parties were agreed that the criteria to be considered by the court were described by Cooke J. in I.R. v Minister for Justice [2015] 4 IR 144 , where having considered a number of authorities, he stated at page 162:

In addition, and in light of the similarly worded provisions in section 50A(7) of the Planning and Development Act 2000, as amended, the respondent highlighted the observations of Barniville J., as he then was, in Cork Harbour Alliance for a Safe Environment v. An Bord Pleanála [2022] IEHC 231 . In that judgment, Barniville J. considered the relevant case law and provided the following non-exhaustive summary of the principles that could be relevant to an application for leave to appeal where the necessity for leave arose by statute, and where the test required the court to be satisfied (a) that the decision involved points of law of exceptional public importance and (b) where it was argued that it was desirable in the public interest that an appeal should be taken. The potentially applicable principles were identified as follows at para 32 of the judgment, and I have summarised the relevant principles insofar as applicable to this application as follows:

The court has had regard to those factors in considering this application. It is clear that an application for leave cannot be grounded in an assertion that an appellate court may take a different view on the manner in which the High Court exercised its discretion in judicial review, even if that would be a perfectly reasonable basis to ground an appeal in judicial review cases that are not subject to limitations on right to appeal. Something more legally significant is required.

Before addressing the specific questions raised by the applicant, it can be noted that, my overall view is that the questions raised by the applicant did not transcend the specific facts of the case, and that the relevant legal principles that were applied in the substantive judgment did not involve any real uncertainty or matters that required appellate scrutiny. As such, and where the judgment was rooted in the facts of the case and the application of established legal principles, the applicable statutory test was not met. It is also notable that to a very large extent the issues raised in the underlying proceedings related to fair procedure type arguments which in turn engage a relatively broad discretion at High Court level.

The first question in respect of which leave to appeal was sought is:

The applicant's argument is that in submitting an appeal, the applicant is effectively unaware of the reasoning or concerns the Tribunal may raise in its consideration of papers. Thus, despite being de novo , it is not a rehearing as while the first instance hearing involved an interview, the Tribunal in a paper only appeal will not meet the applicant. The applicant submitted that this cannot be said to be a full rehearing. Accordingly, this is a fair procedures argument.

On this question, the respondents highlighted that an appeal before the Tribunal was a de novo appeal and therefore there was nothing untoward or exceptional in the Tribunal reaching a different conclusion in the appeal in the context of the statutory procedure. The respondents noted that the decisions in this case were fact sensitive and there were no factual disputes or credibility issues. The respondents emphasise that the manner in which the Tribunal addressed the question as to whether the applicant had a well-founded fear of persecution or faced the risk of serious harm could not be seen as a " new point " in the process. Those were matters that applicants for international protection always have to address, both at first instance and on an appeal.

The respondents argued that, when viewed in the round, the overall process afforded the applicant multiple opportunities to set out her past experiences and future fears in her section 13 interview, her IPO questionnaire, section 35 interview, her notice of appeal and written submissions to the Tribunal, and in any other documents which she wished to submit for the purpose of her appeal. At each stage, she was given the opportunity to address her fears if she were to be returned to her country of origin. In terms of advance notice of matters that may be considered by the Tribunal, the respondent noted that the first instance decision, while appearing to make a finding of past persecution, ultimately determined that the applicant did not have a well-founded fear of persecution. That ought to have placed the issues around fear of persecution to the forefront of the applicant's consideration.

I am not satisfied that the question here raises a point of law of exceptional public importance or that it is in the public interest to have the issue determined on appeal. My view is that the question relates to the procedural fairness of a papers only appeal where an issue arises that may lead a Tribunal to reach a different decision to that reached at first instance. In my view the general legal principles are sufficiently well established and there is no uncertainty around those principles. That is not to say that significant issues cannot arise regarding the manner in which those general principles should be applied in particular cases. However, the scope for such issues does not trigger a point of exceptional importance. Moreover, I agree that the issues in this case arose from the particular circumstances of the case, and not from any overarching uncertainty about the applicable principles.

In the substantive judgment, the court noted that generally the authorities identify that the need for some opportunity to be afforded to an applicant for comment is triggered where factual disputes or credibility issues arise. In this case, properly considered, the issue was how the Tribunal would appraise the undisputed facts in the context of country of origin information having regard to the relevant statutory tests. The court considered that the issues raised by the applicant on this matter had to a very large extent been addressed by the Supreme Court in V. J. v. Minister for Justice [2019] IESC 75 .

In addition, it must be noted, as set out in the judgment, that the hearing before the Tribunal is a de novo hearing. Accordingly, there is no basis for any assumption or apprehension that matters dealt with by the first instance decision maker, even if findings are favourable to the applicant, cannot or will not be revisited by the Tribunal. That issue is not uncertain or in need of consideration at appellate level.

The reality is that in this case, as in many other cases, an applicant is faced with two main tasks: first, to establish the factual matters that ground the application; and second, to show how those factual matters fit within the statutory scheme so that the relevant legal determinations can be made by the decision maker. Here the court was satisfied that this applicant was aware that if she established the core factual backdrop for her application, she then needed to show how that factual backdrop allowed the decision maker to make the legal findings that the applicant sought.

I do not consider the fact that the matter was a " papers only" appeal substantially altered the material tasks or the need to incorporate different procedural mechanisms, where it is always the case that the Tribunal may take a different view to the views of the first instance decision maker. That potentiality is part and parcel of the statutory scheme, and it can operate to the benefit or detriment of an applicant.

In this case the core facts were accepted at both stages. The IPO concluded, albeit with some equivocation, that those facts were consistent with past persecution, but did not conclude in the applicant's favour on the future directed issues of fear of persecution or risk of serious harm. The Tribunal accepted the core facts but was not satisfied that those facts met the threshold in terms or past persecution of future directed fear of persecution or risk of harm. Hence, the conclusions were rooted not in any concern about the veracity or credibility of the applicant's account but in relation to how those facts should be characterised and treated for the purpose of the statutory tests.

The applicant in her written submissions refers to the short timescale within which an appeal can be brought, and notes that applicants and their representative cannot be required to prepare appeals " for every eventuality ". The court cannot rule out that, in a different case, a situation may arise where due to some novelty or particular characteristic of the application it may be necessary to revert to an applicant for commentary before their findings can be made. However, in this case, the reality is that the issues addressed by the Tribunal, insofar as they differed from findings made by the first instance decision maker, were all matters that fall squarely within the range of legal issues that could have been anticipated because they were matters - persecution and risk of serious harm - that must be considered by the Tribunal once is it satisfied as to the core facts. Certainly, I do not consider that the fact that the Tribunal intended to come to a different conclusion to the initial decision maker, in and of itself, triggered a requirement for further consultation, and I do not understand that proposition to be one that falls outside the parameters of the existing authorities.

The second question is: " Whether in a protection context, consideration of submissions and country of origin information sufficiently shown by a statement to the effect that all materials were considered."

I consider that there is some ambivalence in this question. There may well be cases where a significant argument can be made that, on the facts applicable to that case, a tribunal failed to consider a substantial argument grounded in country of origin information or written legal submissions. The question is how that issue arose in the circumstances of this case and whether in that context a point of law arises that is of exceptional importance.

The applicant contended that the decision of the Supreme Court in Rana & Ali v. Minster for Justice [2024] IESC 46 was made in a case concerning the operation of an ad hoc non-statutory ex gratia scheme and is not necessarily applicable in the context of an international protection application. The specific issue in this case was that the applicant claimed that she made a cogent case that state protection was not available for her in South Africa, and that case was not considered in any detail by the Tribunal.

The respondents pointed out that, in Rana & Ali , the Supreme Court endorsed the approach taken in case of G.K. v. Minister for Justice [2002] 2 IR 418, which was an international protection type case. The respondents refer to paragraph 93 of the judgment in Rana & Ali where O'Malley J. stated:

As can be seen in the words I have underlined, the Supreme Court used the words " in general ". The respondents submitted that the use of those words make it clear that the finding of the Supreme Court was applicable outside of the general circumstances of the presenting case. I am not satisfied that is entirely correct in the sense referred to by the respondents. I respectfully consider that the statement in paragraph 93 is a reference to the fact that as a general proposition it is not necessary for the decision maker to support a statement to the effect that " all material has been considered " with further evidence to prove the veracity of the statement. However, that general proposition is subject to the caveat in the next sentence, which is that there may be cases where a particular feature demonstrates that the statement is unlikely to be completely correct. Even so, I do not understand the Supreme Court decision as being in any sense restricted to the particular facts and legal context of the case.

More substantially, it is important to recall what actually occurred in this case. As noted in the substantive judgment, the question of whether South Africa provides adequate protection for widows who face threats from their former in-laws " only bites where the applicant establishes that the factual matters of which she complained of and the nature of the concerns about future risk reached the threshold risk of harm and could be categorised as persecution or serious harm. " The Tribunal determined the relevant thresholds were not reached. The question of a detailed engagement with country of origin information does not appear to me to arise in the circumstances of this case.

Hence, even if as a general proposition an argument could be made regarding the correct application of the Rana & Ali line of authority to the question of substantive engagement with a core submission rather than in relation to the question of whether relevant matters were considered, it does not appear to me to arise in the circumstances of this case.

The third question is "Given the manner in which the Tribunal approached the case, was it obliged to hold an oral hearing in the interests of justice?"

To a very large extent this issue is closely associated with the first question. The issue of the circumstances in which any entitlement to an oral hearing may be triggered has been addressed in a number of decisions, including V.J. v. Minister for Justice and the other cases referred to in the judgment. Accordingly, it seems to me that this is not an issue that can be characterised as an exceptional point of law or one that the interests of justice requires to be determined at appellate stage.

The general principles seem to be well established on this point, and the question that arose in the particular circumstances of this case fell to be analysed having regard to those established general principles. Again, it must be emphasised that the difference between the first instance decision and the findings of the Tribunal related to the analysis of facts that were accepted at first instance and on appeal. Hence, there is no question in this case of issues being raised as regard to the veracity or credibility of the factual account given by the applicant at either stage of the process.

In those premises I do not consider that the question of whether there should have been an oral hearing in this case raises any exceptional point of law or arises from any real uncertainty in the underlying authorities.

The fourth question raised by applicant was " What is required of the Respondent in its assessment of "persecution", and its assessment of "serious harm" within the meaning of ss. 2, 7 and 8? "

The applicant argued in the submissions that in many cases it can be accepted as implicit in the decision of the Tribunal that it had considered the relevant sections of the 2015 Act, without the need expressly to refer to those sections or their contents. However, the applicant submitted that, here, the appeal was on papers and there was a basis to contend that the Tribunal failed to engage with the statutory test.

The respondents argue that there was no lack of clarity in this case as to the proper interpretation of either ss. 7 or 8 of the 2015 Act. Rather the case concerned a proper application of those sections to the factual findings and the assessment of whether the applicant's fears reached the respective thresholds of "persecution" or "serious harm". That was a fact specific exercise, and they argued that the applicant had not identified a point of law that required clarification.

I agree with the general point made by the respondents that where well-established legal principles are applied to the facts of the case this will rarely give rise to a point of law of exceptional importance. It seems to me that in this case, where the analysis engaged in by the court involved such a course of action, the issues raised by the application are not issues that can be characterised as of exceptional importance.

Having regard to the strictures of the jurisdiction to grant a certificate, I do not consider there is any issue of uncertainty in relation to the points of law raised, and it does not seem to me that that the matters raised by the applicant reach the threshold of public importance, such that they require clarification at the appellate stage.

In the premises I will refuse the application for leave to appeal. As this judgment is being delivered electronically my provisional view is that the respondents should be entitled to their costs as against the applicant, to be adjudicated in default of agreement. I will list the matter for final orders before me at 10.30am on Tuesday the 23 September 2025.