The applicant, a Georgian national, applied for international protection on 28 May 2019. Her application was based on her well-founded fear of persecution in Georgia as a victim of domestic violence at the hands of her partner, who she suspected was part of organised crime. He allegedly threatened to kill her because she had an affair with another man, and she was concerned that an attack on her brother was connected with her former partner. On 10 February 2020 her application for international protection was rejected due to a number of credibility issues and the decision also noted that Georgia was a safe country of origin.

On 5 October 2020, the International Protection Appeals Tribunal (IPAT) confirmed the decision considering only the written evidence in the file and without providing a hearing to the applicant. The tribunal did not reply to the applicant’s request to submit medical evidence.

On further appeal, the High Court noted that while the default position under section 42 of the 2015 Act is that an appeal against a refusal of refugee status or of subsidiary protection “shall” proceed by way of oral hearing, the effect of Georgia being considered a safe country of origin modifies the appeal in the sense that the IPAT shall take its decision without holding an oral hearing, unless it considers it is not in the interests of justice to do so. Thus, the IPAT has a discretion on whether or not to hold a hearing, since there is no automatic statutory entitlement to an oral hearing. The High Court further noted that “the applicant addressed the negative credibility findings that were contained in the IPO report in her written appeal submissions in such a manner that the Tribunal did not make credibility findings on the same grounds as had been identified in the IPO report but proceeded to make its own credibility findings.” The court further noted that the IPAT made some adverse findings regarding the applicant’s account (e.g. she never availed of the help support organisations, did not provide sufficient details regarding certain aspects of her account) but failed to put them to the applicant for clarification during a hearing. The court added that while the IPAT recognised the inherent subjective nature of the claims brought by the applicant, the IPAT did not address whether its task could fairly be achieved without an oral hearing in the circumstances of this case considering that the applicant’s credibility was a key aspect. The court concluded that the IPAT did not correctly assess whether a hearing was necessary in the case.

In addition, the fact that the IPAT did not make a reference to the applicant’s request to submit a medical report (an assessment by a mental health practitioner) was considered to raise questions regarding the fairness of the decision-making process before the IPAT.

The court concluded that while the IPAT has discretion to refuse a request for an oral hearing, "this discretion falls to be exercised in accordance with the requirements of constitutional justice. In determining whether the interests of justice require an oral hearing in any given case, the Tribunal should demonstrate that it has had regard to the applicant’s right to a fair decision-making process through its consideration of identified credibility issues and its’ conclusion on whether they are capable of being justly resolved without an oral hearing and, if so, why."

The Court referred to the Supreme Court decisions in M.M v. Minister for Justice and Equality [2018] IESC 10, VJ v. Minister for Justice and Equality and Ors. [2019] IESC 75 (Unreported, 31 October, 2019), the High Court decision in SUN v. The Refugee Applications Commissioner & Ors [2013] 2 IR 555 and the more recent judgment of Ferriter J. in S.K. v International Protection Appeals Tribunal & Anor [2021] IEHC 781 (Unreported, 14 December 2021) before concluding: “So while there is no “right” to an oral hearing in all cases, there are circumstances where the requirements of constitutional justice in ensuring an effective appeal may mandate the holding of an oral hearing, most particularly where the proper determination of the appeal turns on the personal credibility of the applicant in respect of matters of a kind that could have taken place but have been rejected purely because the applicant has been disbelieved when recounting them.”

The Court went on to state: “Depending on the nature of the credibility issues which arise from the documents recording the claim advanced, it is possible in some cases to ensure fairness to the applicant by affording her a right of reply which does not necessarily require the convening of an oral hearing. Where matters are fully canvassed during the IPO process in a manner which demonstrates that no new issue arises on appeal which has not already been put to the applicant, then it may be possible to be satisfied with the fairness of the process. However, where an issue of concern emerges for the first time on appeal and was not put to the applicant during the interview process, and it concerns a material matter, then it will be necessary to provide an appropriate opportunity to an applicant to address the new concern be it in writing or orally to safeguard the fairness of the process.”

Phelan J. quashed the Tribunal’s decision concluding: “It seems to me that the credibility findings which underpinned the IPO’s decision were findings as to the personal credibility of the applicant in respect of matters of a kind that could have taken place but were rejected purely because the applicant has been disbelieved when recounting them. Accordingly, they are classily of the type that would warrant a hearing. In this case, however, the applicant addressed the negative credibility findings that were contained in the IPO report in her written appeal submissions in such a manner that the Tribunal did not make credibility findings on the same grounds as had been identified in the IPO report but proceeded to make its own credibility findings. It may be for this reason that the Tribunal considered that an oral hearing was not required to effectively address the credibility findings which underpinned the IPO decision, albeit this is not expressed in the Tribunal decision. However, this being the case, the Tribunal should also have considered whether credibility remained an issue on other grounds and whether an oral hearing was required in respect of any credibility findings it proposed to make. Indeed, in its decision, the Tribunal acknowledges that "some" of the inconsistencies in the applicant’s account of events at the core of her claim were put to her in the s. 35 interview. This was an acknowledgement by the Tribunal that not all had been. A view that not all matters had been put to her at an earlier stage should, in my view, have put the Tribunal on enquiry as to whether it could fairly proceed without providing an opportunity to the applicant to respond to the identified inconsistencies which had not been put to her and to reflect in the reasoning contained in the decision that proper consideration had been given to this question and why, in the circumstances of the credibility issues in this case, an oral hearing was not required in the interests of justice.”

Thus, the court quashed the IPAT decision and sent the case back to the tribunal for consideration of whether a hearing would be necessary.