According to the summary provided by the EUAA Courts and Tribunals Network:

"The applicant was an Algerian Berber who claimed to have been a member of the Berber separatist movement, MAK. When a member of MAK in 2008, the applicant claimed to have been subject to three separate attacks. The applicant left MAK in 2009 because he feared for his life at the hands of the Algerian authorities if he remained an activist. The applicant continued to reside in Algeria until 2013 when he travelled to the UK on a visa. He continued to reside in the UK illegally until 2018 when he travelled to Ireland and sought international protection.

The International Protection Office (IPO) accepted that the applicant had been a member of MAK until 2009 but rejected his account of being subject to attacks in Algeria. The Tribunal accepted the applicant’s claimed membership of MAK and that he had been subject to attacks in 2008. In rejecting that this gave rise to a well-founded fear of persecution, the Tribunal did not refer to section 28(6) of the 2015 International Protection Act which states: The fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such serious harm, is a serious indication of the applicant’s well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.

The Court also referred to the judgment of Burns J. in IL v IPAT [2021] IEHC 106 where she stated: There was an obligation on the First Respondent [the Tribunal] to engage in an analysis of this rebuttable presumption which it failed to do. Indeed, there is no reference whatsoever by the First Respondent to s. 28(6). This is an error on the part of the First Respondent. Section 28(6) provides a significant evidential presumption to an applicant which can be rebutted by good reason. However, it should be unambiguous from the First Respondent’s decision that such a significant evidential presumption was considered by the First Respondent and the good reasons which rebutted the presumption should be stated. In NS (South Africa) v. Refugee Appeals Tribunal [2018] IEHC 243, Humphreys J stated: ‘If it is accepted that there was past persecution, the decision-maker needs to consider positively whether there is good reason to consider that there would be no future risk.’ The Respondent argues that good reasons did exist to rebut the presumption and that they are set out and apparent in the decision, although s.28(6) is not specifically analysed. This is not sufficient to deal with this issue. As already stated, s.28(6) is a significant evidential benefit which an applicant, who has been found to have been subjected to threats of serious harm, has. It is not appropriate that assumptions and inferences be made as to whether this issue had been considered by the First Respondent, and if so, what the good reasons were for determining that the presumption, which the Applicant is entitled to, has been rebutted.”

After outlining the Tribunal’s analysis of whether the applicant had a well-founded fear of persecution, the Court concluded that it failed to apply the rebuttable presumption in its decision making function. The Court quashed the decision on this ground. The Court went on to consider an argument not run before the Tribunal, whether the principles outlined in the UK Supreme Court decision of HJ (Iran) v. SSHD [2011] 1 AC 596 applied to the applicant’s claim. The applicant submitted that the Tribunal erred in not asking itself why the applicant had ceased his activities with MAK and, if this was because of the persecution he had suffered, he was entitled to international protection as a matter of law. The applicant’s statement of ground outlined this as follows: The Tribunal erred in law and acted unreasonably and irrationally in expecting and/or requiring the applicant to hide his political beliefs and to take no part in the Berber separatist movement in Algeria for the rest of his life, to a avoid persecution and serious harm in Algeria.

The Respondent replied to this ground that there was no evidence before the Tribunal to the effect the applicant intended to become active again in Berber separatism. Therefore, the claim did not arise.

The Court outlined the HJ (Iran) test as follows: The essence of the test set down in HJ (Iran) is that, if the material reason the applicant will in fact conceal aspects of his or her sexual orientation if returned to the country of origin is that he or she fears persecution in the absence of such concealment, the Tribunal should then go on to consider whether that fear was well founded.

The Court found that HJ (Iran) applies to all international protection claims and not just those concerning sexual orientation. The Court concluded: As highlighted by the UK Supreme Court in HJ (Iran), a careful assessment of the facts is critical to an assessment of whether a well-founded fear of persecution can be made by reference to the need to conceal behaviours protected by a Convention ground. The applicant was, on the evidence accepted by the Tribunal, undoubtedly a Berber Separatist activist in the past. His evidence was also that he ceased being such an activist for fear of the persecution involved. However, he had not been active for many years and he did not give express evidence that he wished to resume such activism but believed he would not or could not for fear of persecution. As the question of the test in HJ (Iran) was not before the Tribunal and his evidence was not led with that test in mind, it is difficult to form a view as to the extent to which his evidence was or might have been such as to satisfy the test. In my view, when a different Tribunal is freshly assessing the matter following remittal, it would be appropriate for the Tribunal to proceed on the basis that HJ (Iran) applies in principle and to seek to apply the principles set out by Lord Hope and Lord Rodger in HJ (Iran) in so far as the Tribunal considers them applicable to the facts. I should emphasise in so saying that I am not holding that the applicant will be entitled to a declaration of refugee status in light of his evidence. Rather, the Tribunal should address its mind to the stages of the HJ (Iran) test and in particular, if the Tribunal takes the view that the applicant will be not be engaging in activism as regards his Berber Separatist views to ask itself the question of why that is so and whether it is for a reason or reasons which the law would regard as being based on a well-founded fear of persecution.”

Certiorari granted"