BD and Others v The International Protection Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 24 October 2023
• Neutral Citation: [2023] IEHC 589
• Court: High Court
• Docket Number: [Record No. 2021 395 JR]

BD, TD and MD (Minor Suing by their Mother and Next Friend BD)

Applicants

and

The International Protection Appeals Tribunal and The Minister for Justice and Equality

Respondents

[2023] IEHC 589

[Record No. 2021 395 JR]

THE HIGH COURT

International protection – State protection – Partial order of certiorari – Parties seeking certiorari of the first respondent’s decision – Whether a partial order of certiorari should be made

Facts: The applicants were South African nationals. The first applicant was the mother of the second and third applicants whose father was Albanian. They applied for refugee status because they feared persecution in South Africa on grounds of race. Their application was refused by the International Protection Office and they appealed to the International Protection Appeals Tribunal (the Tribunal) and identified up-to-date country of origin information (COI) that they asked the Tribunal to consider. In its decision of 23 March 2021, the Tribunal rejected parts of the applicants’ case but did accept that the applicants faced a well-founded fear of persecution if they were to return to South Africa because of the second and third applicants’ mixed race. The Tribunal relied on then current COI detailing high levels of xenophobic attacks in South Africa but went on to find that State protection was available to the applicants in South Africa. The parties agreed that the Tribunal’s decision about State protection was flawed and should be quashed, but the respondents, the Tribunal and the Minister for Justice and Equality, said it should be quashed along with the entire decision of the Tribunal. The applicants said that only the finding in relation to State protection should be quashed and the matter should be remitted to a rehearing on that issue only, on the basis of a valid existing finding that the applicants had a well-founded fear of persecution in South Africa. The first applicant said she would suffer distress if she had to give oral evidence of her experiences again and insofar as the respondents said her rehearing could be a paper-based appeal, she said that would deny her the fulsome appeal based on her oral evidence to which she was entitled. The applicants relied on a number of previous cases in which partial orders of certiorari have been made by the High Court.

Held by Bolger J that, for the purpose of the application, she was satisfied that the court had jurisdiction to make a partial order of certiorari, including in an asylum matter, subject to the criteria that had been established in the case of Bord na Móna v An Bord Pleanála [1985] I.R. 205 which requires the court to determine whether the circumstances of a particular case merit such an order, a decision that has to be made on a case by case basis. Bolger J held that, in considering the position of the applicants, the court must have regard to the jurisprudence of the Court of Justice of the European Union (the CJEU) including in relation to Council Directive 2013/32/EU on common procedures for granting and withdrawing international protection (the Recast Procedures Directive) and the CJEU’s recent decision in X v IPAT (Case C-756/21) (decision of 29 June 2023). Bolger J held that this, along with the relevant provisions of the International Protection Act 2015, required the remitted application to be considered on an ex nunc basis by reference to such up-to-date information, including COI, as may be available. Therefore, Bolger J granted certiorari of the Tribunal’s decision and remitted the entire matter back to the Tribunal for a fresh hearing of the applicants’ appeal.

Bolger J granted certiorari of the entire decision on the basis that this was the most appropriate order in the circumstances but not because the court was unable to ever grant a partial or severed order for certiorari. Given the unusual nature of the application and the intervention of a decision of the CJEU while proceedings were in being, Bolger J’s indicative view on costs was that there should be no order for costs.

Application granted.

Counsel for the Applicants: Conor Power SC and April Duff BL

Counsel for the Respondents: Sinead McGrath SC and Silvia Martinez BL

JUDGMENT of Ms. Justice Bolger delivered on the 24th day of October 2023

1 . This is the applicants' application for certiorari which is not opposed by the respondents, but the issue is whether the court can and if so, should, grant partial certiorari, as the applicants seek, or quash the entire decision of the Tribunal as the respondents assert should occur.

2 . For the reasons set out below I am granting certiorari of the entire decision on the basis that this is the most appropriate order in the circumstances but not because the court is unable to ever grant a partial or severed order for certiorari.

Background

3 . The applicants are South African nationals. The first applicant is the mother of the second and third applicants whose father is Albanian. They applied for refugee status because they feared persecution in South Africa on grounds of race. Their application was refused by the IPO and they appealed to the Tribunal and identified up-to-date COI (country of origin information) that they asked the Tribunal to consider. In its decision of 23 March 2021 the Tribunal rejected parts of the applicant's case but did accept that the applicants faced a well-founded fear of persecution if they were to return to South Africa because of the second and third applicants' mixed race. The Tribunal relied on then current COI detailing high levels of xenophobic attacks in South Africa but went on to find that State protection was available to the applicants in South Africa. The parties agree that the Tribunal's decision about State protection is flawed and should be quashed, but the respondents say it should be quashed along with the entire decision of the Tribunal. The applicants say that only the finding in relation to State protection should be quashed and the matter should be remitted to a rehearing on that issue only, on the basis of a valid existing finding that the applicants have a well-founded fear of persecution in South Africa. The first applicant says she would suffer distress if she had to give oral evidence of her experiences again and insofar as the respondents say her rehearing could be a paper-based appeal, she says that would deny her the fulsome appeal based on her oral evidence to which she is entitled.

4 . The applicants rely on a number of previous cases in which partial orders of certiorari have been made by this court. The respondents suggest that none of them had the same opposition to partial certiorari as they maintain here.

5 . For the purpose of this application I am satisfied that the court has jurisdiction to make a partial order of certiorari, including in an asylum matter, subject to the criteria that has been established in the case of Bord na Móna v. An Bord Pleanála [1985] I.R. 205 (which I discuss further below) which requires the court to determine whether the circumstances of a particular case merit such an order, a decision that has to be made on a case by case basis.

The court's jurisdiction to grant partial certiorari

6 . The doctrine of severance has been applied to unconstitutional legislation ( Maher v. Attorney General [1973] I.R. 140), statutory instruments ( The State ( McLoughlin) v. Eastern Health Board [1986] I.R. 416, Cassidy v. Minister for Industry and Commerce [1978] I.R. 297), an order returning an accused for trial ( Murphy v. Early [2009] 4 I.R. 681, [2009] IEHC 261), a coroner's verdict ( State (McKeown) v. Scully [1986] I.R. 524) and a County Council Development Plan ( Glencar Explorations Plc v. Mayo County Council [1993] 2 I.R. 237). It has also been applied to asylum cases including HAA (Nigeria) v. Minister for Justice and Equality [2018] IEHC 34, AA (Pakistan) v. IPAT [2018] IEHC 497, NNM v. IPAT [2020] IEHC 590...