A.B. v The International Protection Appeals Tribunal and Anor

THE HIGH COURT [2026] IEHC 185 [Record No. 2024/1215 JR] BETWEEN A.B. APPLICANT AND THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE RESPONDENTS EX TEMPORE JUDGMENT of Mr. Justice O’Higgins delivered on the 5th day of February 2026 1. This is my ex tempore judgment on the applicant’s application for judicial review of the first respondent’s decision of the 27th of August 2024 refusing the applicant’s appeal of the International Protection Office (IPO) decision to refuse the applicant refugee status or subsidiary protection. I heard the case two weeks ago on the 20th of January 2026. The applicant was represented by Colm O’Dwyer SC and Callie Nic Rallaigh BL, instructed by Ferry 1 Solicitors. The respondents were represented by Cian Henry BL, instructed by the Chief State Solicitor. 2. I propose to divide my judgment into the following broad sections: • A: Background facts; • B: The question of the applicant’s delay; • C: Relevant statutory provisions; • D: A summary of the tribunal’s decision under challenge; • E: A summary of the applicant’s core submissions; • F: The court’s discussion of the primary issues; and • G: Conclusion. A: Background Facts 3. In relation, firstly, to the background facts, I will adopt the helpful summary set out in the applicant’s written submissions commencing at para. 8. The applicant was born in May 1996 and is a national of Georgia. He made a claim for international protection in Ireland in 2022 on the basis that, if returned to Georgia, he would face persecution and serious harm because of his sexual orientation as a bisexual man who has sexual relationships with men and women. On the 30th of June 2022, the applicant completed an application for international protection in accordance with section 15 of the International Protection Act 2015 and he had a preliminary interview under section 13 of the Act. He completed an International Protection Office questionnaire on the 20th of July 2022. He attended an interview on the 23rd of August 2023, pursuant to the provisions of section 35 of the 2015 Act, with an IPO officer. 4. In summary, the applicant stated that he feared persecution and serious harm because he was bisexual and has had relationships with men; that he was harassed and assaulted at an LGBT demonstration on the 5th of July 2021; that he is a member of a political party known as 2 the Girchi Party; and that as an LGBT person and writer he was unable to publish his second book in Georgia as the main character in that book is gay. 5. By letter of the 10th of November 2023, the applicant was informed that the IPO recommended that the applicant should be given neither a refugee declaration nor a subsidiary protection declaration. The IPO considered the applicant’s claim credible, with a “Convention nexus” present, and that if returned to Georgia he would face a reasonable chance of persecution. The IPO, however, found that state protection was available to the applicant. 6. The applicant appealed this decision of the IPO. By notice of appeal of the 18th of December 2023, the applicant appealed the recommendation of the IPO to the International Protection Appeals Tribunal (IPAT) and he sought an oral hearing for the purpose of the appeal. On the 21st of December 2023, the tribunal informed him that it would make its decision without an oral hearing. By letter of the 13th of August 2024, the tribunal sought further clarification on aspects of the applicant’s claim, such as the perceived effectiveness of the police, how the applicant launched his first book and what are referenced as perceived inconsistencies in the applicant’s account. The tribunal allowed the applicant a further period of seven days to respond. 7. The applicant duly provided submissions and country of origin information (COI) in support of his appeal on the 26th of August. Then on the 27th of August - that is the next day - the tribunal member made the impugned decision, affirming the recommendation of the IPO that the applicant not be given a refugee declaration nor a subsidiary protection declaration. 8. By way of summary of the decision reached, the tribunal member decided that the applicant’s account was credible; that there was a reasonable chance that he would be persecuted or face serious harm in Georgia as a bisexual man who engages in homosexual relations; and that there was a Convention nexus. The tribunal also found that the presumption under section 33 of the 2015 Act, that Georgia is a safe country, was rebutted. The respondent 3 found that the applicant’s facts gave rise to a real risk that the appellant would suffer inhuman or degrading treatment in Georgia. However, the tribunal member went on to decide that there was reasonable and effective state protection available for the applicant and other LGBT people in Georgia. The tribunal member referred to country of origin information as presenting “a mixed picture”. The tribunal found overall that Georgia operates an effective legal system for the detection, prosecution and punishment of acts constituting persecution for LGBT people in the applicant’s particular circumstances which, the tribunal found, was stable, effective and of a non-temporary nature. B: The applicant’s delay in initiating these proceedings 9. The impugned decision was issued on the 27th of August 2024. This was towards the end of the Long Vacation when the courts are not fully operational. The applicant’s judicial review papers were filed, in any event, on the 27th of September 2024. In oral submissions, it was indicated by counsel for the respondent that the question of the applicant’s suggested delay was not being pressed as an issue, quite rightly in my view. This indication was given to the court in circumstances where the delay concerned was rather miniscule and has, in any event, been explained in the applicant’s affidavits. The applicant required the assistance of a competent Georgian translator and this, undoubtedly, took time to arrange. To the extent that it is necessary at all, the interests of justice in my view strongly warrant granting the applicant such extension of time as may be necessary to bring the application. C: Relevant statutory provisions 10. Section 7 of the International Protection Act 2015 provides as follows: “Acts of persecution 7. (1) For the purposes of this Act, acts of persecution must be— 4 (a) sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or (b) an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner as mentioned in paragraph (a). (2) The following are examples of acts which may amount to acts of persecution for the purposes of subsection (1): (a) acts of physical or mental violence, including acts of sexual violence; (b) legal, administrative, police or judicial measures, or a combination of these measures, that are in themselves discriminatory or are implemented in a discriminatory manner; (c) prosecution or punishment that is disproportionate or discriminatory; (d) denial of judicial redress resulting in a disproportionate or discriminatory punishment; (e) prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts of a kind referred to in section 10 (2); (f) acts of a gender-specific or child-specific nature. (3) For the purpose of the definition of “refugee” in section 2 , there must be a connection between the reasons for persecution and the acts of persecution or the absence of protection.” Section 31 of the 2015 Act deals with “Actors of protection”: “31. (1) For the purposes of this Act, protection against persecution or serious harm 5 can only be provided by— (a) a state, or (b) parties or organisations, including international organisations, controlling a state or a substantial part of the territory of a state, provided that they are willing and able to offer protection in accordance with subsection (2). (2) Protection against persecution or serious harm— (a) must be effective and of a non-temporary nature, and (b) shall be regarded as being generally provided where— (i) the actors referred to in paragraphs (a) and (b) of subsection (1) take reasonable steps to prevent the persecution or suffering of serious harm, and (ii) the applicant has access to such protection. (3) When assessing whether an international organisation controls a state or a substantial part of its territory and provides protection as described in subsection (2), the Minister, the international protection officer or, as the case may be, the Tribunal, shall take into account any guidance which may be provided in relevant European Union acts. (4) The steps referred to in subsection (2)(b)(i) shall include the operating of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm.” Finally, section 33 of the 2015 Act provides that: “Applicant from safe country of origin 33. A country that has been designated under section 72 as a safe country of origin shall, for the purposes of the assessment of an application for international protection, 6 be considered to be a safe country of origin in relation to a particular applicant only where— (a) the country is the country of origin of the applicant, and (b) the applicant has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her eligibility for international protection.” Those are the key statutory provisions that are engaged in these proceedings, though not the sole sections referenced. D: Summary of the tribunal’s decision 11. The entirety of the tribunal’s decision bears careful reading. It runs to some 19 pages and consists of some 60 paragraphs. It strikes me as a detailed and considered document. I will not, for reasons of brevity, read out the entire document. I will start from para. 34 which carries the heading “Sexual Orientation”. Para. 34 reads: “There remains the fact that the Appellant is bisexual. His fear in that regard is added to by his political involvement (even though that by himself does not give rise to an objectively based fear [of] persecution) and his appearance of having a non-traditional hairstyle and piercings. With regard to country of origin information: • Both United States State Department Human Rights Report for Georgia (events of 2022 and of 2023) quote the Georgia Public Defender’s Office Report as stating: “LGBTI+ individuals continued to experience systemic violence, oppression, abuse, intolerance and discrimination”. • The United Nations in Georgia document entitled: “Time to stand up for equal rights and fair treatment of LGBTIQ+ persons” dated 17th May, 2021 states: “LGBTQI+ people in Georgia continue to face bias, stigma, diminished opportunities in political, 7 social and economic inclusion, as well as experience violent hate incidents and crimes.” • The… letter from Tbilisi Pride dated 26th of September, 2022 refers in general terms to violence and discrimination against LGBT people.” 12. Para. 35 continues: “That country of origin information points to an objectively based fear of discrimination as well as some violence. The Tribunal has considered paragraph 53 of the UNHCR Handbook on the cumulative effect of discrimination on the definition of persecution. Further, even though the relatively small number of past negative incidents experienced by the Appellant do not amount to persecution so as to invoke section 28(6) of the Act, the future-looking test requires a consideration of the cumulative effect of the possible future negative incidents that could be experienced by the Appellant.” I’ll pass over para. 36. Then para. 37 reads: “The Tribunal finds that the Appellant’s fear is a fear of future persecution. The height of the risk of persecution is not analysed in the country of origin information cited. The test to be applied is that of a reasonable chance of future persecution which has a lower threshold than the balance of probabilities. The Tribunal finds that the Appellant[’s] fear of future persecution in Georgia amount to a reasonable chance. The fear exists because the Appellant is a member of the social group of bisexual men in Georgia.” 13. Next, the tribunal considers the question of safe country of origin and the report at para. 38 states the following: “Georgia is a safe country of origin. Under section 33 of the International Protection Act, 2015 a country is a safe country for the Appellant only where the Appellant “has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her eligibility for 8 international protection”. The United States State Department Human Rights Report for Georgia (events of 2022) quotes the Georgian Social Justice Centre as noting “ineffective investigations of hate crimes committed by ultra-right groups, and institutional gaps that hindered the protection of the rights of LGBTQI+ persons”. Taken by itself, and without prejudging the question of state protection, that statement is sufficient to rebut the section 33 presumption and so requires an examination of state protection for the Appellant in Georgia without the presumption that it is a safe country of origin (N.U. v. I.P.A.T. [2022] IEHC 87)”. 14. It seems to me that the decision by the tribunal to regard as rebutted the section 33 presumption which says that a country that has been designated as a safe country of origin shall be considered to be a safe country of origin in relation to a particular applicant, was a decision that was in favour of the applicant and, therefore, in and of itself, cannot be a basis for invalidating the impugned decision. 15. Returning then to the decision itself, the tribunal goes on to carry out an assessment of the question of state protection and does so from paras. 39 to 56. I will not read out all of those paragraphs, save to note the issue is considered at some length and by reference to relevant statutory provisions and, in some paragraphs, case law. Reference is made in para. 39 to the decision of Mr. Justice Barrett in B v. IPAT [2019] IEHC 763 and the four-step test identified in that case for considering the question of effective state protection. The four questions are: “(1) Does the State in question take reasonable steps to prevent the persecution or suffering of the serious harm feared by a particular applicant? (2) Do such steps include the operating of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm? (3) Is such protection effective and of a non-temporary nature? (4) Does the particular applicant have access to such protection?” 9 16. Then at para. 40 of the report the following is stated: “The analysis must be carried out with a focus on the particular circumstances of the Appellant. Protection is generally provided where a state takes reasonable steps to prevent the persecution or serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and the Appellant has access to such protection. Thus, the focus here is whether reasonable protection, in practical terms, can be provided in the Appellant’s particular circumstances.” Pausing my excerpts from the impugned report, it seems to me that that last paragraph, paragraph 40, is a considered and reasonable approach for the respondent to take. 17. There then follow, between paras. 41 and 47, relevant excerpts from COI, including a number of excerpts relied upon by the applicant in his application for international protection. Having reviewed and considered the relevant extracts, the tribunal then states the following at para. 48: “The country of origin information presents a mixed picture. The impression given is that Georgia has made considerable progress in recent years in providing protection for LGBT people against the possibility of persecution, be it violence and/or discrimination (which still exists). The State does so by having put in place a supportive legal framework. However, some shortcomings remain. The country o[f] origin information refers to a failure of police protection at an LGBT event in 2023, and the 2023 State Department Report says that there are “occasional” failures of police protection for violence and harassment.” Then at para. 49 the tribunal continues: “With regard to police failures, the 2023 State Department Report sets out that Georgia has a functioning police oversight body, the Special Investigation Service (SIS). The 10 article from the Council of Europe Office in Georgia entitled: “Law-enforcement authorities and civil society discuss investigations into alleged police misconduct in Georgia” sets out the mandate of the SIS and points to it being effective and to it co- operating with the Council of Europe’s work “to address the issues relating to effective policing in line with human rights standards”. 18. Next, under the heading of “The Appellant’s personal circumstances”, the report continues at para. 50 as follows: “The Appellant’s personal circumstances must be considered. As well as being bisexual and presenting himself with a non-traditional hairstyle and piercings he is a political blogger and Girchi member…” - that’s a reference to the political party - “and activist who had a role in helping the organisers of the 2021 LGBT demonstration referred to above. He did not have a negative experience with the police because he never made a complaint to them. In that regard, it is not necessary for an applicant for international protection to make a complaint to the police if there is a good reason not to do so. The Appellant’s reasons for not making a complaint to the police, which are analysed in the context of credibility above, were inconsistent and incoherent and do not support a finding that effective state protection is unavailable to him.” 19. Pausing my recital of extracts of the report for a moment, it is appropriate to observe that it is not the role of the court in a judicial review to decide whether it agrees with that last mentioned statement contained within the report. Rather it is the court’s role to assess whether that conclusion was reasonably open to the tribunal on the evidence considered. In my view, it has not been demonstrated that it was not reasonably open to the tribunal. 20. Returning then to the report, at para. 51 the report continues: “With regard to the Appellant’s interactions with the police, he said that the assault during the 5th July, 2021 demonstration ended when a policeman approached the 11 attackers and they ran away. When the crowd of drunks attacked the Girchi office believing that the meeting “was training about LGBT propaganda” they ran away when one of the Girchi members told them that the police had been called. The members of the radical groups which oppose the Appellant’s opinions said that drugs would be found in his flat if he did so in order to discourage him from doing so, which points to them not wanting him to report them to the police. Those reactions from the Appellant’s antagonists point to effective state protection being available to him”. 21. Then at para. 52 the report continues: “Even if the Appellant were to encounter an unsympathetic or unhelpful police officer (something which is possible because the 2023 State Department Report refers to occasional failures of police protection and the country of origin information refers to insufficient police protection at the 2023 Pride event) there is effective oversight of the police in Georgia. The country of origin information does not point to it being ineffective with regard to the Appellant’s particular circumstances”. 22. Then at para. 53 of the report, the tribunal addresses a specific submission and complaint of the applicant concerning the non-publication of his book. Para. 53 reads as follows: “The one area where state protection will not assist the Appellant is in making a publisher accept his second book. A publisher has the right to freedom of expression and cannot be required by law to publish a book. By itself, not having a book accepted for publication would not constitute persecution. In any event, the Appellant has the option of publishing it privately and nothing in the country of origin information considered prevents him from doing so.” 23. Then under the heading of “Conclusion on state protection”, the IPAT report states the following at para. 54: 12 “In conclusion on the issue of state protection, Georgia takes reasonable steps to prevent the persecution feared by the Appellant in his particular circumstances. It does so by operating… an effective legal system for the detection, prosecution and punishment of acts constituting persecution for LGBT people in the Appellant’s particular circumstances (including the political overlay to his situation) which is stable, effective, and of a non-temporary nature in the sense that the effectiveness [of the] protection is stable and non-temporary: the country of origin information points to it being dynamic in the sense of consistently improving. The Appellant has access to the state protection.” Then at para. 55, the tribunal concludes that “there is reasonable and effective state protection for the Appellant in Georgia”. E: Summary of the applicant’s core submissions 24. The applicant raises a core question as to whether the tribunal properly assessed the availability of state protection in accordance with applicable legal principles, and under the heading of that general issue the applicant makes the following submissions. Firstly, there is a tension or inconsistency in the finding that the presumption under section 33 of the International Protection Act 2015 was rebutted by referencing the United States State Department human rights report for Georgia of 2022 and the ultimate finding that there was effective state protection for identified LGBTQ persons available from the police and the authorities in Georgia. 25. Secondly, the applicant submits that the state protection analysis carried out by the tribunal was flawed and inadequately reasoned. Too much reliance was placed on good intentions and exhortative platitudes as opposed to demonstrated results and actual evidence of effective state protection being available to the applicant. 13 26. Thirdly, it is submitted that the analysis fails to address the questions identified by Mr. Justice Barrett in B v. IPAT [2019] IEHC 763 which flowed from section 31 of the 2015 Act. 27. Fourthly, the tribunal, it is urged, mishandled and over-emphasised the point that the applicant did not report the matter to the police in Georgia. It is urged that it failed to take into account the risks associated with seeking state protection in Georgia and the applicant’s justified fear in reporting such matters to the police. 28. Fifthly, it is submitted that the tribunal failed to address why the persecution would not be repeated. 29. Separate and apart from those submissions dealing with the point that there was a failure to apply applicable legal principles pursuant to the statute, the applicant raises a separate issue concerning the question whether the respondent failed to rationally analyse conflicting COI. It is submitted that the respondent, in effect, cherry-picked the COI in a manner that was not appropriate and this involved an overly selective treatment of the material. It is urged the tribunal failed to view the COI as a whole and failed to justify its preference for one piece of COI over another. The applicant submits that, viewed in the round and in its proper context, the COI for Georgia with respect to the treatment of persons from the LGBT community indicates that there is inadequate state protection for a person in the applicant’s circumstances and inadequate oversight of the police. The COI relied upon by the applicant goes far beyond encountering a single rogue police officer. 30. Then, finally, the applicant raised the standalone issue concerning the question whether the tribunal had failed to have regard to the question of persecution based on discriminatory grounds. It was heavily pressed that the applicant was unable to publish a book as an LGBT writer. He submits that, by reference to ground d (5) of the statement of grounds, the tribunal failed to consider whether a requirement to not publish an LGBT book as a writer from that community itself constituted persecution. 14 F: Court’s discussion of the primary issues 31. I propose to divide this section into a number of sub-parts: (1) The claim that finding the section 33 presumption rebutted was inconsistent with the finding that state protection was available; (2) the claim that the tribunal’s methodology of assessing the question of state protection failed to comply with the provisions of section 31 of the Act; (3) the criticism of the tribunal’s reliance on the fact that the applicant did not make a report to the police in Georgia; (4) the claim that the tribunal’s assessment of state protection failed to apply a standard of reasonable protection in practical and realistic terms; (5) the claim that the tribunal failed to rationally analyse the conflicting COI which, it seems to me, was one of the main planks of the applicant’s case; and (6) the claim that the tribunal failed to properly consider whether a requirement not to publish an LGBT book as an LGBT writer itself constituted persecution. 32. Dealing then with claim one, namely the criticism of the IPAT decision, I do not accept that there is an internal contradiction between the tribunal’s decision to deem the section 33 presumption rebutted and the substantive finding that state protection was available to the applicant in Georgia. In my view, for the reasons identified in the respondent’s submissions and developed more fully in oral submissions, the two findings are not necessarily mutually exclusive. That is my ruling with respect to claim number one. 33. Moving then to claim number two, it seems to me that the applicant has not demonstrated that there was a failure by the tribunal to apply the provisions of section 31 of the 2015 Act which sets out the test for state protection. Section 31(1) provides, in material part, that “protection against persecution or serious harm can only be provided by… a state… provided that [it is] willing and able to offer protection in accordance with subsection (2)”. Section 31(2) then provides, in material part, that “protection against persecution or serious 15 harm (a) must be effective and of a non-temporary nature, and (b) shall be regarded as being generally provided where (i) the actors [in question]... take reasonable steps to prevent the persecution or suffering of serious harm, and (ii) the applicant has access to such protection”. 34. Section 31(4) of the 2015 Act provides that the “steps referred to in subsection (2)(b)(i) shall include the operating of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm”. Looking at the checklist of items referenced in section 31, it seems to me that the tribunal’s methodology complied with the Act. The impugned decision specifically referenced Mr. Justice Barrett’s formulation of the relevant questions to be considered, as set out in B v. IPAT. It then goes on to consider relevant COI, both positive and negative, on the question of state protection and it then focuses its assessment through the prism of the applicant’s personal circumstances. It seems to me that, at a level of principle, this was a reasonable methodology for the tribunal to adopt. 35. As to the applicant’s criticisms of the tribunal’s decision on the question of state protection on its merits, I think there are several points to be considered in relation to that. Firstly, in a judicial review application the court should focus not on the question of whether the court does or does not agree with the conclusion reached on the merits, but rather with the question whether the process and methodology followed by the tribunal were lawful. Case law makes clear that it is not the role of the court to substitute its view of the evidence, including the COI evidence, for that of the tribunal. This is important because it is not the court’s role to determine the merits of the application for international protection; rather, it is the court’s role to supervise whether the process followed was in accordance with law and fair procedures. 36. The methodology applied by the tribunal is evident from paras. 40 and 41 of the report which I have already quoted and, to a degree, discussed. In my view, the tribunal’s consideration of the issue was adequate and reasonable. Moreover, paras. 41 to 47 of the tribunal’s report consider in some detail competing extracts from relevant COI. Some of these 16 excerpts are very critical of Georgia’s record in responding to complaints of gender-based violence and discrimination. Other excerpts indicate what is referred to as progress in combatting discrimination and homophobia towards LGBT persons. 37. At paras. 45 and 46 of the report, the tribunal member cites the United States State Department Report (2022) as follows: “In April the PDO…” – that’s the Public Defender’s Office – “published the Assessment of the Rights Situation of the LGBT+ Group in Georgia and noted some improvements in the legal status of the LGBTQI+ community in recent years. For example, the PDO assessment stated that, unlike in previous years, the government increased its cooperation with NGOs and community organizations, as evidenced by the inclusion of some LGBTQI+ needs in human rights actions [sic] plans, but the assessment noted a significant disconnect between the legal and formal environment and the legitimate concerns of the LGBTQI+ community. The Georgian Democracy Initiative lamented the government’s decision to not specifically address LGBTQI+ issues in the updated Human Rights Strategy 2022-30. The PDO report also noted that the state had not taken additional steps to promote tolerance and peaceful coexistence via systematic human rights education.” 38. Then at para. 46, it is relevant to note that the tribunal states the following: “the State Department Report (2022) quoted the Georgian Social Justice Centre criticising the state’s response to anti-LGBT violence as being insufficient. That statement did not appear in the following year’s State Department Report (events of 2023).” At para. 47 of the report, there is reference to an Amnesty International Report for Georgia (2023) and a Freedom House Report (2024) referring to the police failing to adequately protect the LGBT Pride event in July 2023 in Georgia. 17 39. Having weighed these various COI excerpts, the tribunal then made the following statement at paras. 48 and 49: “The country of origin information presents a mixed picture. The impression given is that Georgia has made considerable progress in recent years in providing protection for LGBT people against the possibility of persecution, be it violence and/or discrimination (which still exists). The State does so by having put in place a supportive legal framework. However, some shortcomings remain. The country of origin information refers to a failure of police protection at an LGBT event in 2023, and the 2023 State Department Report says that there are “occasional” failures of police protection for violence and harassment.” 40. Then at para. 49: “With regard to police failures, the 2023 State Department Report sets out that Georgia has a functioning police oversight body, the Special Investigation Service (SIS). The article from the Council of Europe Office in Georgia entitled: “Law-enforcement authorities and civil society discuss investigations into alleged police misconduct in Georgia” sets out the mandate of the SIS and points to it being effective and to it co- operating with the Council of Europe’s work “to address the issues relating to effective policing in line with human rights standards””. 41. Now, if we step back from the tribunal report for a moment, it seems to me that, even if one does not fully agree with the ultimate conclusion reached as to the overall thrust of the COI, the tribunal does give coherent reasons for arriving at its conclusions on the COI. The report correctly states that the COI presents a “mixed picture”. It states and explains its conclusions that considerable progress has been made in providing protection for members of the LGBT community. The report notes significant blemishes in Georgia’s record and significant shortcomings in how Georgian police responded in a number of specific instances. 18 42. The tribunal officer was clearly influenced by the COI that suggested there was effective oversight of the police in Georgia. At para. 52 the tribunal officer concluded that the COI does not point to state protection being ineffective with regard to the applicant’s personal circumstances. In my view the applicant has not made a sufficiently compelling case to enable the court to conclude that that finding is legally irrational. Nor has the applicant demonstrated that it was not reasonably open to the tribunal to find that Georgia takes reasonable steps to prevent the persecution feared by the applicant, having regard to his personal circumstances and sexual orientation. 43. In G.O.B. v. Minister for Justice [2008] IEHC 229, Mr. Justice Birmingham referred to the internationally accepted principle that, absent clear and convincing proof to the contrary, a state is to be presumed capable of protecting its citizens. He makes the point that there may be few police forces in the world against which some criticism could not be laid. Ms. Justice Phelan discussed somewhat similar themes in E.S. v. IPAT [2022] IEHC 613 where she explained that, under section 31 of the 2015 Act, a state is required to take reasonable steps to achieve effective protection. She observed that the statutory test turns not on police success rates in preventing crime or corruption but on the nature of the measures put in place and whether they can be characterised as reasonable steps. 44. Taking all matters into account, it seems to me that criticism number four of the applicant’s list of complaints is not borne out on the evidence. I find that the tribunal did apply a standard of reasonable protection that was practical and realistic and one that accorded with the test set out within section 31 of the Act. I also reject the applicant’s submission that the tribunal failed to rationally analyse the conflicting COI. This is not a case where the tribunal omitted to consider whether the COI was conflicting, nor is it a case where the tribunal failed to explain why it preferred some COI excerpts over others. For these two reasons, the present case, in my view, is distinguishable from the decision of Mr. Justice Edwards in D.V.T.S. v. The 19 Minister for Justice [2007] IEHC 305. 45. For the reasons indicated by counsel for the respondent in his oral submissions, I think the applicant’s case is more akin to the decision of Ms. Justice Phelan in E.S. v. IPAT where Ms. Justice Phelan stated the following at para. 82: “In this case the Tribunal set out in full a list of the COI considered. The Decision further clearly records that the Tribunal had considered all the COI at paragraph [2.13/2.14]. It quoted extensively from COI which was critical of the levels of State protection available in terms of its effectiveness, as well as COI which demonstrated that State protection was available. The Tribunal proceeded to explain that notwithstanding shortcomings which were acknowledged in the terms of the Decision, it was concluded that State protection was available. Contrary, [sic] COI was not ignored in this case. The reasons given adequately explain the Decision, even though a contrary decision would also have been supported by some of the material before the decision-maker.” In my view, that last quotation from Ms. Justice Phelan aptly captures the situation in the present case. 46. Finally under this heading, I want to address the applicant’s submission that there was over-reliance by the tribunal on the applicant’s failure to report his complaints to the police in Georgia. In my view, it is correct that the non-reporting of complaints of persecution or violence to the police of an origin state cannot of itself preclude a finding of ineffective state protection. Moreover, a finding of non-reporting should not be given disproportionate weight and should not dislodge all other relevant factors. However, having said that, in my view at a level of principle, it is rational for a tribunal member to have regard to whether or not a complaint to the police has been made. If no complaint has been made, it means that the applicant is reduced to arguing that, even if a complaint had been made, it would not have been acted upon. On any 20 realistic view, this is logically a higher hurdle for an applicant to climb because he cannot put forward actual evidence of lived experience that his complaints to the police were evidently ignored. 47. In this case, the tribunal considered the non-reporting issue at some length between paras. 21 and 29 of the report and, again between paras. 50 and 52 when considering the question of state protection in the context of the applicant’s personal circumstances. The tribunal stated at para. 23 that there was a significant credibility difficulty surrounding the applicant’s statements that he did not report his negative experiences to the police because there was “no point”. At para. 24, the tribunal member stated that the “Appellant’s experiences with the police can colour his approach to them. He said that the attackers stopped beating him on 5th July, 2021 when a policeman came near to them. When the Girchi office came under attack from people who believed that the meeting was about LGBT issues: “they were drunk, swearing at us, then one of us told them that we called the police and they left”. Both of those interactions are inconsistent with the Appellant’s explanation for not reporting his negative treatment to the police. The Tribunal put that point to the Appellant in correspondence for his comments but he did not respond to it in his subsequent written submissions”. 48. At para. 28, the tribunal member observes that the credibility assessment for this aspect of the applicant’s case is difficult: “Much of his narrative is detailed and is consistent with the country of origin information. However, his story about not reporting his negative experiences to the police is incoherent and is inconsistent with both country of origin information and with his own experiences of the police.” 49. Having considered this issue as to the tribunal’s suggested over-emphasis upon the non- reporting point, it seems to me that, while that conclusion may seem somewhat harsh, I am not satisfied that the applicant has demonstrated that it was legally irrational or wholly unsupported by evidence. All told, I find that criticism number 3 relating to the emphasis on the non- 21 reporting of the applicant’s complaints to the Georgian police has not been made out. 50. Turning then to the final question in the list I have identified, I wish to address criticism number 6 as to the tribunal’s suggested failure to properly consider the issue concerning the applicant’s inability to publish his book. This issue is considered in express terms at paras. 35 and 53 of the tribunal’s report. Para. 35 states that the relatively small number of past negative incidents experienced by the applicant do not amount to persecution so as to invoke section 28(6) of the 2015 Act. The respondent submits that the expression “past negative incidents” implicitly includes the applicant’s experience as to the non-publication of the book. Viewing matters in the round and taking into account what is actually said at para. 53 in express terms, it seems to me that the tribunal took the issue as to the non-publication of the book into account in its deliberations, albeit it did not regard this experience as sufficient to meet the test for persecution. 51. In my view, it has not been demonstrated that this finding, again, was legally irrational. Section 7 of the 2015 Act states that acts of persecution must be sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights. As noted by Mr. Justice Humphreys in earlier cases, the Geneva Convention does not protect against discrimination or difficulty, rather it protects against persecution. In my view, with respect to the final criticism made by the applicant in this judicial review, the tribunal was entitled to conclude that the refusal or blocking of publication of the book, which had LGBT themes and characters, did not meet the statutory threshold for persecution. G: Conclusion 52. In conclusion, having considered all of the materials in the case and having considered the oral and written submissions provided by the applicant and by the respondent, I am not satisfied that the applicant has identified a basis for overturning the decision of the tribunal by 22 way of judicial review. I therefore refuse the application. Signed: Micheál O’Higgins Appearances: For the Applicant: Colm O’Dwyer SC and Callie Nic Rallaigh BL, instructed by Ferrys Solicitors LLP For the second Respondent: Cian Henry BL, instructed by the Chief State Solicitor’s Office 23