N.K. v The International Appeals Tribunal and Anor

THE HIGH COURT JUDICIAL REVIEW Record No. 2024/577JR [2026] IEHC 116 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 N.K. Applicant and THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL THE MINISTER FOR JUSTICE AND EQUALITY Respondents Judgment of Mr Justice Cian Ferriter delivered 11 March 2026 Introduction 1. In these proceedings, the applicant seeks to quash a decision of the respondent tribunal (“the Tribunal”) dated 13 March 2024 in which the Tribunal affirmed the recommendation of the international protection office (“IPO”) that the applicant should be given neither a refugee declaration nor a subsidiary protection declaration. 1 Background 2. The applicant is a national of Georgia born in October 1998. On 14 September 2022, she entered the State legally on foot of a visa valid from 28 August 2022 to 2 April 2023. (Her mother has been living in Ireland since 2019 and has been granted international protection here.) The applicant returned to Georgia in January 2023 before coming back to Ireland in March of that year. She applied for international protection on 1 June 2023. Basis for international protection claim 3. As the principal issue in this case turns on the question of whether the Tribunal properly assessed the basis of the applicant’s claim to have a well-founded fear of persecution if returned to Georgia, it is necessary to set out the basis of her claim in some detail. 4. The basis for the applicant's claim for international protection is as follows (the details are largely taken from the note of her interview pursuant to section 35 of the International Protection Act 2015 (“s.35” and “the 2015 Act”, respectively)). The applicant says that her mother left Georgia for Ireland in 2019 as she had been the victim of physical abuse from the applicant's father. She says that her father took revenge on a male friend of her mother who had helped her mother come to Ireland. Her father was arrested and imprisoned for one year as a result. (She claimed that he was arrested because of premeditated murder but was only sentenced to one year in prison because he had friends in the police. The Tribunal did not accept this explanation for the length of time spent by the father in prison). Her claim is that after he was released from jail he was physically and psychologically violent towards her. In December 2021, she was on a video call to her mother when her father entered the house unexpectedly. She said that he verbally abused her and threw a glass at her. Her brother tried to intervene. A neighbour called the police. When the police arrived, her father and brother were taken to the police station. Her brother punched a police officer and ended up spending a year in prison as a result. The applicant says that her father only got a verbal warning. She says that the police officer asked her if she wanted to make a police report but she did not do so because she was very scared and knew she could not fight against her father. 2 5. The applicant says that her experience of the police was that when her mother was abused the police did not help her and she had no hope that they would help herself and her brother in the situation that emerged. She alleged that when her mother reported her father's abuse, he was only given a warning and sent back home as her father had connections in the police. 6. The applicant made plans to escape her father's abuse. She obtained a visa to come to Ireland and arrived here in September 2022. In early January 2023, she went back to Georgia to see her brother, believing that her father was not in the home at this point. She said that she came back again to Georgia in March 2023 to visit her brother and to get a diploma from her university. She believed at that time that her father would avoid contact with her. She found herself alone in the family home, when her father arrived unexpectedly and was very aggressive, verbally assaulting her and threatening her. He asked her why she was on her mother's side and threatened her that he would kill her mother and also the applicant. She said that he said words to the effect that he was not scared to go to jail and that he would be peaceful when she and her mother were dead. He then started to abuse her physically, punching her several times. She fell on a table and was knocked unconscious. She called an ambulance but did not tell them she was a victim of physical abuse as she did not want to make trouble for her brother who was still on a conditional sentence. She was in hospital for a couple of days. She said she made a decision then to leave the country. She stayed with her godmother for a number of days before returning to Ireland where she claimed international protection on 1 June 2023. 7. In answer to a question during her s. 35 interview as to what it was she specifically feared about returning to Georgia, she replied:- "I can't go back because I am scared of my father. He was threatening me that he would kill me. I was a victim of physical abuse and if I return I'm scared that it will have a fatal ending. I know that he will fulfil the threats." 8. During the course of her s. 35 interview, she said that if she reported the matter to the police she had no trust that they would protect her. She stated "I know this for sure because it was my mother's past experience and from Georgia's statistics husbands are 3 killing their wives and children, the police only issues them with restraining order, there is no functioning police". When asked about provisions in the criminal law of Georgia to the effect that the planning of a crime to do harm is a criminal act and an arrestable offence, she said that that may be the theory but the reality was that if domestic violence is reported the police will only give a restraining order. She said that the police did not protect her mother and she left the country. She stated (in answer to question 20) "If I reported to the police it would only give him a restraining order and he will get angrier, kill me and the law would not protect me". In a further answer (to question 24) in the s. 35 interview, she said that she made a decision to leave on 16 March 2023 "because of the last incident when my father was really violent and tried to kill me". IPO recommendation 9. The IPO officer who dealt with the applicant’s case delivered his report pursuant to s. 39 of the 2015 Act on 22 August 2023. In his report, he analysed in some detail the evidence, as summarised above, set out in the applicant's answers to the s. 35 interview. He accepted her claim that she was the victim of domestic violence in Georgia. He concluded that the applicant did have a nexus to the Refugee Convention on the basis that she was a woman and thus a member of a particular social group. (In order to qualify as a refugee, the applicant needed to establish a well-founded fear of persecution on a Convention ground, which includes membership of a particular social group. She must also demonstrate that she was unable to avail of State protection in her country of origin as a result of that well-founded fear: see the definition of “refugee” in s. 2 of the 2015 Act. Section 8 of the 2015 Act addresses reasons for persecution including membership of a particular social group where members of that group share inter alia an innate characteristic or the group has a distinct identity in the country of origin because it is perceived as being different by the surrounding society.) 10. The IPO relied in this regard on country of origin information (“COI”) from the US State Department that stated that "domestic and gender-based violence remained a significant problem" in Georgia with the extent of same being set out in statistics provided by the National Statistics Office of Georgia. 4 11. The IPO officer then went on to consider whether State protection would be available to the applicant if she was returned to Georgia. He concluded on the COI evidence before him that State protection would be available to her. Based on the same material, he also concluded that while the applicant would face a real risk of serious harm as a victim of domestic abuse, she was not entitled to subsidiary protection as State protection would be available for her in Georgia by reference to the IPO officer’s analysis of the applicable COI. Appeal to Tribunal 12. The applicant appealed to the Tribunal. The grounds of appeal noted, inter alia, that "a Convention nexus to membership of a particular social group is accepted" which appeared to be an acceptance that the IPO was correct in finding that she was a member of the particular social group of women in Georgia. Other grounds of appeal were advanced including that the IPO failed to consider the fact that the applicant's mother was granted refugee status in Ireland on a similar set of facts. The applicant in her grounds of appeal did not take issue with the IPO’s characterisation of her claim as being based on a well-founded fear of domestic violence at the hands of her father. The Tribunal’s Decision 13. The Tribunal in its decision summarised the applicant's case as being that her father was violent to her following her mother's departure to Ireland in 2019; that in December 2021 her brother defended her when her father was violent to her and that her father was also violent to her in 2023 after she returned to Georgia from Ireland. The Tribunal in its decision states "she fears further violence from her father" (at para. 5). 14. The Tribunal accepted that the applicant's mother was a refugee in Ireland but noted that there was no document provided to substantiate her claim that her mother was made a refugee on the basis of being a victim of domestic violence (para. 11). The Tribunal accepted (at para. 15) on the balance of probabilities that her father was violent to the applicant. The Tribunal rejected her account that her father had connections in the police. 5 15. In the section of the decision headed "Analysis of well-founded fear", the Tribunal states (at para. 23) that the applicant "claims to be in fear of further assault from her father". The Tribunal was satisfied that "the cumulative effect of the feared repeated assaults is capable of reaching the level of persecution" (at para. 24). 16. In relation to the question of membership of a particular social group, the Tribunal held as follows (at para. 25): “With regard to membership of a particular social group, a social group of women in Georgia is too broad because, although being a woman is an innate characteristic, the Appellant’s fear of persecution does not arise by reason of her being a woman in Georgia. It arises because of previous violence from her father, who was also violent to his son according to the Appellant. On the other hand a social group of victims of domestic violence, or one of children or daughters of violent men, does not exist independently from the fear of persecution, and the country of origin information does not establish that victims of domestic violence have a distinct identity in Georgia through being perceived as different by the surrounding society. The Appellant is not a member of a particular social group and there is no other nexus between the feared persecution and a section 8 reason.” 17. On that basis, the Tribunal affirmed the decision of the IPO that the applicant not be declared a refugee. 18. The Tribunal then went on to conduct an analysis of serious harm in the context of the applicant’s claim for subsidiary protection. It found that Georgia was not a safe country of origin in the applicant's particular circumstances and, that being so, it was necessary to analyse State protection without the overlay of Georgia being a safe country of origin. The test for effective State protection contained in s. 31 of the 2015 Act, as summarised by the High Court in BC v IPAT [2019] IEHC 763, was then set out. The Tribunal noted that the analysis "must be carried out with a focus on the particular circumstances of the [applicant]" (para. 31). The Tribunal took the view that, although the COI focused on domestic violence to spouses and partners, as the applicant was living at home with her father, protection for domestic violence was relevant to her case 6 “which will be analysed as such rather as one of fear of ‘ordinary’ assault for which COI established that effective State protection is available.” 19. Having set out a summary of COI on the position as regards domestic violence in Georgia from some older material and more recent material (the latter of which included a Human Rights Watch report for Georgia of 2023, an article dated 10 February 2021 entitled "9,144 victims of domestic violence identified in 2021 in Georgia", a February 2022 report from UN Women and a comprehensive account of the law and practice surrounding domestic violence in Georgia as contained in the US State Department Human Rights Reports for Georgia (events of 2022), the Tribunal concluded (at paras 45 and 46) that: "45. The country of origin information presents a mixed picture. The older country of origin information shows that there were some significant failures of State protection in domestic violence cases. Since then, Georgia has made considerable strides to improve the level of State protection in such cases. Shortcomings remain and rates of domestic violence are high. There are now a number of procedures in place to combat such violence and there have been improvements in recent years. The police have received specialised training in domestic violence” “46. The impression given is that, whatever might have been the case in 2019 when the appellant's mother left Georgia and came to Ireland, considerable improvements have been made in the policing of domestic violence cases in the past number of years". 20. The Tribunal then went on to consider the particular circumstances of the applicant noting that she had not made a report to the police. The Tribunal noted that the applicant had said that she did not want to go to the police or to make a complaint to the police because she feared violence from her father if she did so. The Tribunal noted that the police had developed systems of electronic surveillance and communication via text message to deal with domestic violence situations where a risk to the victim remained after the police complaint and stated that this was a reasonable response to the risk of the applicant being harmed for making a complaint to the police (para. 49). 7 It also referenced the oversight bodies in Georgia to deal with a scenario where police did not respond effectively to a domestic violence complaint. The Tribunal concluded (at para. 51) that it was satisfied by the COI that: "Georgia takes reasonable steps to prevent the kind of persecution feared by the appellant arising from possible future violence from her father. Georgia operates an effective legal system for the prosecution and punishment of domestic violence. That protection is effective… The appellant has access to that protection. The Tribunal concludes that adequate State protection would be available to the appellant should she return to Georgia." 21. The Tribunal therefore concluded that there were not substantial grounds for believing that if returned to Georgia the applicant would face a real risk of suffering serious harm. The applicant’s case 22. In an amended statement of grounds, the applicant was given leave to advance four grounds of challenge to the decision. Two of these grounds (that the Tribunal erred in in its analysis of State protection by equating a functioning police and judicial system with an effective one, and that the Tribunal had erred in failing to resolve apparent contradictions in the COI) were not pressed at the oral hearing. 23. The applicant's counsel in his oral submissions focused on the two remaining grounds in the amended statement of grounds which related to the Tribunal’s failure (said to be irrational) to hold that the applicant was a member of a particular social group and therefore could establish a Convention nexus for refugee purposes and that the Tribunal failed to address a core part of the applicant's claim for protection, namely the death threats made by her father against her, in addition to his physical assaults, and her fear that she would be killed by him if returned to Georgia. 24. I propose to deal with this latter ground first as it seems logical to address the Tribunal’s characterisation of the applicant’s claims as to persecution/serious harm, given that the remainder of the Tribunal’s analysis, including those parts of the analysis the subject of the other grounds of challenge in these proceedings, flow from that characterisation. 8 Tribunal’s characterisation of persecution in issue 25. The applicant contends (in what was described by her counsel as being their main point) that the Tribunal failed to address a key part of the applicant's claim for protection, namely the death threats made by her father against her, in addition to his physical assaults, and her fear that she would be killed by him if returned to Georgia. I have already set out above the key evidence given by the applicant in this regard in her s. 35 interview responses. 26. The applicant submits that the Tribunal’s failure to properly engage with the applicant’s actual case represents a substantial failure on the part of the Tribunal to assess with "vigilance and care" the circumstances of the applicant's individual situation which was said to form the basis for her well-founded fear of persecution if returned to Georgia. 27. The relevant obligation on the Tribunal is well settled as a matter of EU law. In Case C‑756/2, X v IPAT, at paragraph 50, the CJEU says, “…the assessment as to whether or not the established circumstances constitute such a threat that the person concerned may reasonably fear, in the light of his individual situation, that he will in fact be subjected to acts of persecution must, in all cases, be carried out with vigilance and care, since what are at issue are issues relating to the integrity of the person and to individual liberties, issues which relate to the fundamental values of the European Union…” . 28. That obligation finds expression in s.28(4) of the 2015 Act (derived from article 4 of the Qualification Directive 2004/83/EC) which provides that the IPO and a Tribunal on appeal must assess the applicant’s claims by taking into account, inter alia, “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” (s.28(4)(b)) and the “individual position and personal circumstances of the applicant” (s.28(4)(c)). 29. The applicant’s counsel submitted that the failure by the Tribunal to properly assess and deal with the applicant's actual case (fear of being killed), as opposed to a 9 circumscribed version of that case (namely the fear of physical assaults alone) vitiates the decision, on the basis that the subsequent analysis (in relation to membership of a particular social group but also, critically, in relation to the question of State protection) addresses itself to the wrong "target". The applicant relied as part of her arguments here on the fact that her claim as advanced engaged the question of femicide, as opposed to domestic violence falling short of a well-founded fear of being killed. 30. The respondents contended that the analysis contained in the Tribunal's decision in relation to the question of domestic violence was sufficiently broad to encompass the question of death threats in addition to that of physical assaults. Counsel for the respondents submitted that, if the question of death threats had been added to the language of the Tribunal decision, the COI analysis, and the ultimate conclusion on State protection, would have been precisely the same. It was submitted that the Tribunal found that the applicant had a well-founded fear of persecution at the hands of her father, which was her core claim; the precise formulation of the basis of that fear therefore did not materially matter on the facts of this case. 31. Counsel for the respondents relied in this regard on the judgment of (Tara) Burns J. (when in the High Court) in BA v IPAT [2020] IEHC 589. Burns J there rejected an argument in the context of the availability of state protection in Nigeria for domestic violence victims that there was a difference between a threat to kill and domestic violence. Burns J pointed out that “as violence against a woman particularly in a relationship setting can encompass minor assaults to vicious fatal attacks the appropriate question was whether the applicant could rely on state protection against all serious physical attacks on her from her ex partner rather than simply a threat to kill her”. 32. Counsel for the respondents submitted that the concept of “femicide” did not apply here and was in any event addressed in the relevant COI cited by the Tribunal. I should say that there was a dispute before me as to the proper meaning of the term femicide. The applicant contended that femicide involved the murder of women. The respondents contended that femicide was the murder of women on account of their gender. It appears that there is no accepted EU law definition of femicide. 10 33. In my view, the Tribunal engaged in a careful assessment of the case made by the applicant. I do not believe that the Tribunal erred in characterising her claim. The Tribunal in the first paragraph of its decision stated that the applicant made a claim for international protection on the basis that if returned to Georgia she would face persecution and a real risk of suffering serious harm from her father. In summarising her claim at paragraph 5 of the decision, the Tribunal having briefly summarised the applicant’s father’s violence towards her mother, her brother and herself, stated that “she feared further violence from her father” in the event she was returned to Georgia. The Tribunal accepted on the balance of probabilities that the applicant's father was violent to her (para 15). It will be recalled that the applicant’s evidence in the s.35 interview included evidence to the effect that in the March 2023 assault, the applicant’s father had tried to kill her. 34. The Tribunal accepted that she had a subjective fear of persecution arising from the assault on her by her father when she returned to Georgia on a visit from Ireland. It found that the cumulative effect of the fear of repeated assaults was capable of reaching the level of persecution (para 23). It rejected her claim for asylum on the basis that she could not establish a Convention nexus. The Tribunal went on to find that the applicant faced a real risk of suffering serious harm by way of inhuman or degrading treatment in Georgia in the form of being assaulted by her father. There can be little doubt from the evidence that the nature of the violence feared from the applicant’s father was serious given the severity of the March 2023 assault and her evidence as to his attitude towards inflicting further serious violence. 35. Importantly, the Tribunal then went on to assess the question of state protection by reference to COI which addressed the question of domestic violence generally, including the question of violence against women resulting in death. Accordingly, for example, the Tribunal at para 43 of its decision cited a US State Department Human Rights report for Georgia (events of 2022) which referenced gender-based murder of women as being one of main challenges in the reporting period (up to April 2021) with women’s rights organisations attributing the high number of femicides to a lack of adequate preventive measures by the government. The Tribunal concluded at para 46 that, whatever might have been the case in 2019 when the applicant's mother left Georgia and came to Ireland, considerable improvements had been made in the policing 11 of domestic violence cases in Georgia in the past number of years and went on to analyse such improvements. The Tribunal concluded on the question of state protection in respect of the applicant’s subsidiary protection claim that it was satisfied by the COI that Georgia takes reasonable steps to prevent the kind of persecution feared by the applicant arising from possible future violence from her father. 36. In my view, the fact that the Tribunal did not specifically detail the applicant's evidence as to the fact that she had received what she believed to be credible death threats from her father, in addition to being the victim of violent assault, does not vitiate the decision. It is clear that The Tribunal correctly addressed itself to the broad type of persecution/serious harm which the applicant was at risk of; I agree with Burns J that the concept of domestic violence in a domestic relationship setting can encompass a spectrum of behaviour including threats to kill and serious assault. Significantly, the Tribunal in its decision analysed a body of COI material relating to a wide conception of domestic violence (including gender-based murders of women) in analysing the question of state protection; that COI was clearly relevant to the type of persecution feared by the applicant on her own case. In my view, it cannot be said that there was a material or substantive error in the Tribunal’s characterisation of the applicant’s claim to international protection. To seek to separate out death threats or a credible fear of violence resulting in death from a pattern of violent physical assaults in a domestic violence context would, in my view, involve inappropriately parsing the essence of what is involved in serious domestic violence cases including that of the applicant where violent behaviour over time can escalate to the point of potentially fatal assaults if left unchecked. 37. Accordingly, in my view the applicant has not made out a good ground of challenge under this heading. Convention “nexus: membership of a particular social group 38. The applicant next contended that the Tribunal erred in law, and acted irrationally in the legal sense, in forming the view that the applicant was not a member of a particular social group. The applicant argued that the applicant's family itself constituted a particular social group in circumstances where both the applicant and her mother had 12 been the victims of domestic violence. It was also contended that the Tribunal on the material before it should have concluded that the applicant was a member of a particular social group, being women in Georgia. This argument was advanced on the basis that the COI before the Tribunal evidenced that women were disproportionately affected, compared to men, by domestic violence in Georgia and that that was a sufficient basis for the criteria in the case law as regards qualification for membership of a particular social group being met. 39. In my view, the applicant cannot demonstrate irrationality in the Tribunal's finding in relation to membership of a particular social group. The Tribunal reasoned that the applicant's fear of persecution did not arise by reason of her being a woman in Georgia. Rather, it arose because of previous violence from her father, who was also violent to his son (and, indeed, to a male friend of her mother who had assisted her mother in escaping to Ireland). Given this factual finding, which it was open to the Tribunal to make on the evidence before it, it seems to me that the legal finding that followed (namely that the applicant's fear of persecution did not arise by reason of her being a woman, but rather by reason of her father being a generally violent man), was not irrational; on the facts of the case it was open to the Tribunal to conclude that the applicant was not a member of a particular social group for the purposes of ss. 2 and 8 of the 2015 Act. While it might arguably have been open to the Tribunal to conclude that the applicant was a member of a particular social group, being women in Georgia, on the basis that women in Georgia face significant levels of domestic violence compared to men, it is not the role of the court on a judicial review to substitute a different view for that of the Tribunal. The challenge to the finding made by the Tribunal on the question of membership of a particular social group was that it was an irrational one. I cannot conclude that the finding was irrational on the facts as found by the Tribunal. 40. A further argument advanced in these proceedings was that the Tribunal fell into error in not categorising the applicant as belonging to the particular social group of a family unit where a number of members of the family, including the applicant and her mother, had been victims of domestic violence. This was not a ground ever raised on behalf of the applicant before the IPO, whether at questionnaire, interview or submissions stage. It was not raised in her grounds of appeal. While counsel for the applicant 13 pointed to the jurisprudence in relation to the duty on both parties to cooperate on the issue of membership of a particular social group, it is difficult to see how that duty could arise on the part of the State where the applicant herself had never made that case. Accordingly, I do not see that the decision can be successfully impugned on this ground. Other Grounds 41. The remaining two grounds were, in fairness, not pressed at the oral hearing and can be shortly dealt with. 42. The first such ground was that the Tribunal erred in law in its analysis of State protection on the basis that the Tribunal appeared to take the view that the operation of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, was met by the mere existence of a "functioning police and judicial system". The amended statement of grounds contended that mere functionality is not to be equated with effectiveness. However, it is clear from the terms of the Tribunal's decision that it ultimately concluded that the police and judicial system in relation to domestic violence in Georgia was not merely functional but effective. Accordingly, this ground of challenge cannot succeed. 43. A further ground in the amended statement of grounds sought to contend that the Tribunal erred in its assessment of the COI. The amended statement of grounds advanced apparent contradictions in the COI which, it was claimed, were not resolved by the Tribunal. However, it is clear that the Tribunal lawfully assessed the COI as a whole, fairly stated that it presented a mixed picture, and analysed why the COI, when considered as a whole, particularly the more recent COI, demonstrated that reasonable steps were taken by the legal system and the police to address the problem of domestic violence in Georgia. That approach was validly open to the Tribunal and, in my view, there is no error of law as alleged. Conclusion 44. For the reasons outlined above, I refuse the applicant the relief she seeks in these proceedings. 14