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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.S. v The International Protection appeals tribunal & Ors (Approved) [2025] IEHC 184 (28 March 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC184.html Cite as: [2025] IEHC 184 |
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THE HIGH COURT
JUDICIAL REVIEW
[2025] IEHC 184
Record No. 2025 78 JR
BETWEEN
A.S
APPLICANT
AND
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
RULING of Ms. Justice Siobhán Phelan, delivered on the 28th day of March, 2025.
INTRODUCTION
1. In these proceedings the Applicant seeks to challenge the decision of the International Protection Appeals Tribunal (hereinafter "the IPAT") dated the 18th of November, 2024, made pursuant to s. 46 of the International Protection Act, 2015 (hereinafter "the 2015 Act") affirming the recommendation of the International Protection Officer under s. 39(3)(c) of the 2015 Act in finding that he was not entitled to subsidiary protection or refugee status.
BACKGROUND
2. The Applicant is a national of South Africa. She arrived in the State on the 7th of March, 2022. She applied for international protection in the State on the 12th of April, 2022.
3. The Applicant is of white ethnicity and made her claim for international protection on the basis that she would suffer persecution on the grounds of race or that she would face a real risk of suffering serious harm if she was returned to South Africa on grounds of race. She alleged that she had already been the victim of persecution/suffering serious harm because of her race.
4. The application for protection was rejected by the IPAT in a decision dated the 18th of November, 2024. In essence, the IPAT found that what the Applicant had experienced in South Africa, whilst unpleasant, did not reach the threshold for persecution. In reaching this decision, the IPAT referred to extensive country of origin information (hereinafter "COI") as listed in its decision including: Part 11.2.1 - The United States State Department Overseas Security Advisory Council (USSD OSAC) South Africa 2020 Crime & Safety Report; Freedom House, Freedom in the World 2023-South Africa; United States Department of State, 2022 Country Reports on Human Rights Practices: South Africa; UK Home Office, Country Background Note South Africa Version 2.0 August 2020, 1 September 2020; Canada: Immigration and Refugee Board of Canada, South Africa: Situation of white South Africans, including treatment by government and society; state protection available to white South African victims of violence; information on any white South African community, political or rights groups (2014-September 2018); US Department of State, Country Reports on Human Rights Practices: South Africa 2022, 20 March 2023; US Department of State, Country Reports on Human Rights Practices: South Africa 2021, 12 April 2022; US Department of State, Country Reports on Human Rights Practices: South Africa 2020, 30 March 2021; Department of Employment and Labour (South Africa), The Commission for Employment Equity (CEE) Annual Report, 2022–2023 and Start Living Africa, 7 Safest Cities In South Africa (And The 3 Most Dangerous), 2 January 2024.
PROCEDURAL
5. When the application was first opened before me on the 20th of January, 2025, I was not satisfied that a proper evidential basis had been laid for the challenge sought to be maintained and afforded the Applicant an opportunity to mend her hand by filing further affidavit evidence. The need for a supplemental affidavit arose from the complaint made that the decision-making process was flawed because the IPAT had not had regard to up to date COI in making its decision. It seemed to me that in making this claim, the Applicant should establish in evidence that relevant up to date COI existed, such that it might reasonably be argued that the failure to consider it had to potential to impact on the decision made.
6. Since the filing of proceedings serves to "stop the clock" and considering the statutory time-limits applying to challenges of this nature, when adjourning the proceedings I directed that the legal representatives for the Respondents be put on notice of the proceedings. This was not because I had identified an issue upon which I required to be addressed at leave stage on behalf of the Respondents but because a decision on the application was being delayed. Specifically, I was concerned that if leave were ultimately to be granted, criticism might legitimately be levelled on the basis that the Respondents were potentially prejudiced by a delay in notification that issue was being taken with the lawfulness of the decision taken by the Applicant. I considered notification appropriate because it behoves me to always have due regard to the need for expedition in relation to proceedings in the asylum and immigration area, particularly in respect of those cases governed by time limits fixed under s. 5(2) of the Illegal Immigrants (Trafficking) Act, 2000 (as amended) (hereinafter "the 2000 Act").
7. In the event, once on notice of the application, counsel on behalf of the Respondents appeared before me and sought to be heard in opposing the application. Whilst this had not been my original purpose in directing notice, mindful that I might be assisted by fuller information or submissions to be made, I agreed to schedule a short inter partes leave hearing, although explaining why I had directed notice to be given of the proceedings. It was also clarified with counsel for the Respondents that the grounds upon which leave was sought had narrowed considerably and only one of several grounds pleaded was, in fact, being pursued. It is possible that had the narrowing of the claim been communicated in advance, a different view might have been taken on behalf of the Respondents as to the necessity to be heard in opposition at leave stage
8. Additional affidavit evidence was adduced both on behalf of the Applicant and the Respondents (in the form of a supplemental affidavit from the Applicant filed on the 28th of February, 2025, an Affidavit of a John Moore on behalf of the Respondents filed on the 6th of March, 2025, and a supplemental affidavit from the Applicant's solicitor sworn on the 20th of March, 2025) and were before me for the purpose of the inter partes hearing which took place on the 21st of March, 2025.
9. Helpfully, the Affidavit filed on behalf of the Respondents exhibited all the COI which had been considered by the IPAT with reference to the extensive list set out at paras. 2.2-2.3 of the Decision. In this affidavit, it was also pointed out that the Applicant had not exhibited or otherwise put before the Court one of the two pieces of COI which was suggested in the Supplemental Affidavit (filed post the initial listing for a leave application) to be out of date and the subject of excessive reliance, namely the UK Home Office Country Background Note for South Africa (published August 2020).
10. The further Affidavit sworn by the Applicant's solicitor was dated the 20th of March, 2025. It was sworn to exhibit the correct version of the US Department of State 2023 Report on South Africa published on the 22nd of April, 2024, which had been inadvertently omitted from previous affidavits.
Substantial Grounds Threshold
11. In these proceedings, the Applicant seeks an order quashing the decision of the IPAT made under s.46 of the 2015 Act. This decision is subject to s. 5 of the 2000 Act and the higher threshold of "substantial grounds" applies to the decision to grant or refuse leave to proceed by way of judicial review.
12. The substantial grounds test for leave to proceed by way of judicial review which applies by virtue of s. 5 of the 2000 Act was as set out in McNamara v. An Bord Pleanála [1995] 2 ILRM 125 and approved in In Re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 at 395, where the word "substantial" was interpreted as being equivalent to "reasonable", "arguable", and "weighty" and the Court held that such grounds must not be "trivial or tenuous" applies.
13. The test to be applied is not affected by the fact that the proceedings are on notice and the application for leave is opposed.
DISCUSSION AND DECISION
14. As already noted, the decision of the IPAT was originally sought to be impugned on a variety of grounds, however, when opening the leave application before me on the 30th day of January, 2025, counsel on behalf of the Applicant confirmed that only one ground was being pursued, namely, that there had been a failure on the part of the Tribunal to cooperate in the assessment of the Applicant's claim because the COI utilised was not up to date at the time of the making of the impugned decision.
15. Accordingly, the substantive question for me on this application has been reduced to whether it is arguable for the purposes of leave on substantial grounds that the reliefs sought should be granted on account of a failure in a duty of cooperation with the Applicant by failing to utilise up to date COI at the date of the making of the impugned decision. Furthermore, as the proceedings were not instituted within 28 days of the decision sought to be impugned in accordance with s.5(2) of the 2000 Act, this is a case in which the Applicant must also demonstrate a sufficient basis for seeking an extension of time at the full hearing of a claim.
16. Addressing firstly the time issue, the Applicant was notified of the IPAT decision on the 18th of November, 2024. The Proceedings were filed on the 20th of January, 2025. The proceedings were therefore 35 days out of time when filed. The Applicant's solicitor explains this delay on the basis that the first barrister briefed was unavailable to act and while she had prepared a brief for a second Counsel on the 6th of December, 2024, and she understood it had been sent but she "later learned that it had remained in drafts in the office email" (para. 8, Affidavit of Mary Trayers). She avers that this error did not come to her attention until after the Christmas break and she only became aware of the error on the 2nd of January, 2025. She deposes to the fact that there was communication with counsel in relation to the case on the 12th and 13th of January and papers were furnished in draft form on the 14th of January, 2025, sworn by the Applicant on the 15th of January, 2025, and an appointment arranged to file papers on the 15th of January, 2025. It is noted that by the time papers were sent to second counsel, there was only a short window remaining within which to issue proceedings in time.
17. The Applicant's solicitor is silent as to why further enquiries were not directed to counsel during the period prior to Christmas given an impending time limit. It appears that the time limit was allowed to pass without appropriate follow-up. This has not been explained. Had enquiries been made in a timely fashion, the briefing error could have been identified sooner. It seems the error may have only come to light when a decision was made in the case of the Applicant's partner which brought renewed attention to this case. Even when the briefing error was belatedly identified, however, it took a further 18 days for proceedings to issue in circumstances when by then the proceedings were already out of time. Accordingly, while some basis for seeking an extension of time has been identified, it is fair to observe that the facts advanced are not the most compelling and the explanation before me is incomplete.
18. I have been referred to the principles guiding the exercise of a power to extend time under s. 5(2) of the 2000 Act in cases such as S v Minister for Justice [2002] IESC 17, GK v Minister for Justice [2002] 2 IR 418 and GK v IPAT [2022] IEHC 204. It is clear based on the principles elaborated in this caselaw that the Applicant faces an uphill struggle in persuading a Court to grant an extension of time if this matter proceeds to full hearing. It is also clear that the merit or relative strength of the case sought to be advanced is a relevant consideration.
19. As this is a leave application and the question of whether an extension of time should be granted is a matter normally only finally determined at substantive hearing, I am satisfied that for present purposes it suffices for me to grant leave for the Applicant to demonstrate a reasonable basis for contending at full hearing that an extension of time should be granted. I am satisfied that this relatively low threshold is met on the affidavit evidence of the Applicant's solicitor. I would only require additional evidence at leave stage if I were otherwise disposed to granting leave but for the time issue. Accordingly, I do not propose to refuse to give leave in this case on delay grounds alone and without considering whether substantial grounds are otherwise demonstrated.
20. It remains, therefore, to determine whether it has been demonstrated that the case sought to be advanced otherwise meets the substantial grounds threshold. From the Tribunal decision made in November, 2024, it is apparent that the IPAT relied on three pieces of COI with which issue has been taken as follows:
(i) Freedom House Country Report 2023 (§8, Grounding Affidavit);
(ii) US Department of State Country Report 2022 (published 2023) (§3,'
Supplemental Affidavit); and
(iii) UK Home Office Country Background Note (published 2020) (§3, Supplemental Affidavit).
21. In maintaining this complaint, the Applicant refers me to Article 8.2 of the Asylum Procedures Directive 2013/32/EU which states as follows:
"Member States shall ensure that decisions by the determining authority on applications for asylum are taken after an appropriate examination. To that end, Member States shall ensure that:
(a) applications are examined and decisions are taken individually, objectively and impartially;
(b) precise and up-to-date information is obtained from various sources, such as the United Nations High Commissioner for Refugees (UNHCR), as to the general situation prevailing in the countries of origin of applicants for asylum and, where necessary, in countries through which they have transited, and that such information is made available to the personnel responsible for examining applications and taking decisions;
(c) the personnel examining applications and taking decisions have the knowledge with respect to relevant standards applicable in the field of asylum and refugee law".
22. This requirement has been transposed by Regulation 5.1 of S.I No. 518/2006 - the European Communities (Eligibility for Protection) Regulations 2006 which provides that a decision maker for the purposes of making a protection decision shall have regard all relevant facts as they relate to the country of origin at the time of taking a decision on the application for protection, including laws and regulations of the country of origin and the manner in which they are applied.
23. I am further referred to Article 4.1 of the Qualification Directive 2004/83/EC which states:
"1. Member States may consider it the duty of the applicant to submit as soon as possible all elements needed to substantiate the application for international protection. In cooperation with the applicant it is the duty of the Member State to assess the relevant elements of the application.
2. The elements referred to in of paragraph 1 consist of the applicant's statements and all documentation at the applicants disposal regarding the applicant's age, background, including that of relevant relatives, identity, nationality(ies), country(ies) and place(s) of previous residence, previous asylum applications, travel routes, identity and travel documents and the reasons for applying for international protection.
3. The assessment of an application for international protection is to be carried out on an individual basis and includes taking into account:
(a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application; including laws and regulations of the country of origin and the manner in which they are applied."
24. The fundamental submission advanced is that the COI relied upon by the IPAT fell short of the European and domestic law requirement to consider all relevant facts as they relate to the country of origin at the time of taking a decision on the application because the COI consulted by the IPAT was not up to date at the relevant time. Specifically, it is submitted that The Freedom House Report utilised which was entitled "Freedom in the World Report 2023-South Africa" referred to at page 16 of the impugned decision was not the current and up to date version at the date of the taking of the decision. A more up to date report from that source was published on the 29th of February, 2024. It is contended that the other country information sourced by the Tribunal was also out of date. Although the Applicant contends that the decision might have been different had up to date COI been considered, it is in my view crucial that the factual basis upon which this contention is made needs to withstand some preliminary level of scrutiny if substantial grounds for maintaining the complaint is to be treated as demonstrated.
25. The use of COI by the IPAT in this case falls to be examined in the context in which it was used, namely, whether the Applicant could benefit from state protection due to police ineffectiveness in South Africa. This was the only ground put forward by the Applicant for rebutting the presumption of state protection. Accordingly, the treatment of other issues in the COI is simply not germane.
26. In considering the merit of the Applicant's complaint, it is also relevant to note that by email of the 29th of October, 2024, the IPAT provided the Applicant with a list of COI upon which it intended to rely, which included the reports at (ii) and (iii) above (the report at (i) having been relied upon by the IPO already), and invited submissions and/or the submission of alternative COI. Submissions were filed on behalf of the Applicant dated the 7th of November, 2024, which do not reference the COI which the Applicant now claims the Tribunal should have considered. No objection is made in these submissions to the use of the proposed COI on the basis that it is out of date. In fact, in the case of the report at (ii) above, submissions were made by reference to the said COI report.
27. There is some incongruity, therefore, in the Applicant's position insofar as it is maintained on the one hand that the IPAT should not have relied on the COI that the Applicant had referred to, but should instead have relied on other COI which was not addressed by the Applicant in her submissions at all. I would not, however, accept for the purpose of a leave application the submission made on behalf of the Respondents that the principle that it is not open to an applicant to condemn a decision on the basis of a point that was not put to the decision-maker necessarily applies in relation to COI given the free-standing obligation on the IPAT to consider appropriate COI whether identified by the Applicant or not.
28. It seems to me, however, that the contention made that if the Applicant had, even belatedly, uncovered relevant and up-to-date COI supportive of her claim which had been overlooked in favour of outdated COI which was prejudicial to her, it would be reasonable to expect some attempt to specify what was materially different in the COI which would have supported her claim and this would be set out in grounding any proceedings challenging the decision.
29. It is indeed an issue undermining of the Applicant's application for leave before me that no serious attempt to identify and compare particular aspects of the respective COI was made in either the Grounding Affidavit or, notwithstanding my direction and queries as to whether up to date relevant COI existed, in the Supplemental Affidavit filed on behalf of the Applicant.
30. Insofar as an attempt was made to cure this omission at the inter partes hearing on the 21st of March, 2025, I have considered the material identified and cannot conclude that the Applicant has identified any relevant, up to date COI which it might be argued could potentially have impacted on the IPAT's decision with regard to the availability of State Protection.
31. Specifically, insofar as the Applicant may be understood to complain that the Tribunal relied upon the Freedom House Country Report 2023, rather than the 2024 version (para. 8, Grounding Affidavit), it bears note that the 2023 report was referenced expressly only once in the IPAT Decision. The reference made is in a quotation from the Applicant's interview wherein it was put to her that there were institutions in place to deal with racial discrimination. Insofar as police effectiveness is concerned, there is no change in circumstances beneficial to the Applicant's case between 2023 and 2024. If anything, the 2024 report is more favourable. The scoring on these two questions remained the same between 2023 and 2024. In fact, the overall score attributed to South Africa (79/100) remained the same between these years.
32. As for the objection to reliance by the IPAT on the US Department of State Country Report for South Africa 2022 rather than the 2023 version of this report, this objection is made in the face of the fact that, as alluded to above, the Applicant made submissions to the IPAT which quoted the 2022 Report. Furthermore, the 2022 report was referenced only once in the IPAT Decision (para. 7.17). It was used to acknowledge that there were some shortcomings with the South-African police (e.g., police brutality), however these were ultimately distinguished from the Applicant's complaint of police ineffectiveness.
33. The Applicant does not in grounding these proceedings identify any aspect of the 2022 report which was prejudicial to the Applicant or superseded by the 2023 report in a material way. Nor indeed is any aspect of the 2023 Report referred to specifically in grounding this application. All that is provided is an averment that the contents of the 2023 Report "illustrate a serious continuation of difficult conditions in some areas and an average of 75 killings of people daily' (para. 3, Supplemental Affidavit), an averment made as though a quotation from the 2023 Report.
34. As pointed out on behalf of the Respondents in oral argument before me, however, it is not clear where in the 2023 Report this quotation appears, if at all, and no reference for the quotation was provided in the affidavit. Indeed, I understood counsel for the Applicant to accept in his oral submissions, in response to this point being raised, that the quotation is taken not from the 2023 report but from another source which it appears has not been put in evidence. In any event, the statement as it appears is vague and relevance to the Applicant's case is not clear. It seems at its height to evidence a "continuation" rather than a deterioration.
35. Finally, the Applicant also objects to reliance on the UK Home Office Country Background Note for South Africa, published in 2020. In affording the Applicant an opportunity to present further evidence, I specifically queried whether there was a more recent UK Home Office Country Report than 2020. Counsel suggested on his feet that he did not know but that there must be in view of the age of the Report. Despite this express query being raised as long ago as the 30th of January, 2025, the Applicant does not refer to any more up-to-date version of this Note, and it does not appear that such up to date version exists or even if it did that it could be helpful to the Applicant. It is therefore not established on a satisfactory preliminary basis that the Note is out of date at all.
36. In any event, the Note is relied upon in the IPAT Decision (para. 7.19) to support the effectiveness of the South African police. The Applicant does not object to anything in particular which is said in the IPAT Decision in reliance on it. All that is provided is an averment that a comparison between the Note with the more recent reports, namely the US Department of State Report 2023 and the Human Rights Watch Report 2023) "indicates a decline in police effectiveness in South Africa, marked by increased corruption, diminished public trust, rising organised crime, and resource challenges affecting response times" (para. 3, Supplemental Affidavit).
37. Leaving aside that most of these issues identified on behalf of the Applicant do not relate to police effectiveness in the sense relied upon by the Applicant, this averment does not refer to any particular aspect of the report. A comparison of the report finally exhibited on the eve of the inter partes hearing and the COI before the IPAT does not suggest any difference between the two which could possibly be material to the decision which it is sought to impugn. Indeed, the opening lines of the report state:
"There were no significance changes in the human rights situation in South Africa during the year".
The precise statement opened to me by counsel for the Applicant at p. 22 of the 2023 Report, which was contended to be the up to date report which ought to have been considered, to the effect that civil society groups considered the South African Human Rights Commission only moderately effective due to a large backlog of cases and the failure of government agencies to adhere to its recommendations, was contained in verbatim terms at p. 17 of the 2022 Report which was before the IPAT and referenced in its decision.
38. A specific example identified by counsel in moving the application on behalf of the Applicant on the 21st of March, 2025, was a reference contained at page 30 of the US Department of State Report on South African published on the 22nd of April, 2024, as exhibited by affidavit sworn on the 20th of March, 2025, namely, a reference to the fact that approximately 300 Equality Courts had resolved only 600 matters a year, it bears note that this information was, in fact, contained in the COI before the IPAT. COI in this regard was expressly referred to in the IPAT decision (at para. 7.23).
39. It is unsatisfactory that a claim such as that advanced in these proceedings should be advanced in general, abstract terms without due or proper regard to the COI actually considered as compared with COI which it is contended ought to have been considered (but was not). To properly maintain a complaint of the type contemplated there should be a qualitative, comparative exercise in evidence which demonstrates that it is arguable that there was in fact a relevant and material difference between the two - the old COI considered and the new COI which it is contended ought to have been considered. No such proper comparative exercise was done in this case. Accordingly, there has been a failure to provide a sufficient evidential platform to ground a legal argument for the relief claimed.
CONCLUSION
40. For the reasons set out, I am not satisfied that the Applicant has discharged the burden on her at leave stage of demonstrating substantial grounds for seeking the relief claimed by way of judicial review. I do not consider the basis advanced meets a threshold of "reasonable" or "weighty". It seems to me that the complaint maintained is in the realm of "trivial" and "tenuous." Accordingly, I refuse leave in this case.