EV v The International Protection Appeals Tribunal

JurisdictionIreland
CourtHigh Court
JudgeMs Justice Tara Burns
Judgment Date25 November 2020
Neutral Citation[2020] IEHC 617
Date25 November 2020
Docket Number[2020] 556 JR Record No: 2020/556JR

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

BETWEEN:
EV, JV AND MV (A MINOR SUING BY HER FATHER AND NEXT FRIEND, EV
APPLICANTS
AND
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS

[2020] IEHC 617

[2020] 556 JR

Record No: 2020/556JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms Justice Tara Burns delivered on the 25th day of November, 2020
General
1

The Applicants seek leave to apply by way of Judicial Review for the following principal reliefs:-

a) An Order of Certiorari of the decision of the First Respondent dated 29 June 2020, made under Section 46(3)(a) of the International Protection Act 2015 (hereinafter referred to as the “Act of 2015”) refusing to grant the Applicants either refugee or subsidiary protection declarations;

b) A Declaration that ss.33 and 72 of the Act of 2015 combined are void as ultra vires and/or incompatible with Ireland's obligations under Council Directive 2005/85/EU of 1 December 2005 (hereinafter referred to as “the Procedures Directive”) and/or the Common European Asylum System;

c) A Declaration that the Second Respondent erred, contrary to s.72 of the Act of 2015, in the designation of South Africa as a safe country of origin.

Test for Leave regarding the decision of the First Respondent
2

Section 5 of the Illegal Immigrants (Trafficking) Act 2000, as amended, applies to these proceedings. Accordingly, the Applicants must satisfy the Court that there are substantial grounds for contending that the decision in their cases ought to be quashed.

3

A “substantial” ground must, in the words of Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125 , be ‘arguable, weighty and must not be trivial or tenuous’. She added ‘a ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial’.

The Facts
4

The Applicants are South African: the First and Second Applicants are married and the Third Applicant is their daughter. They arrived in Ireland on 9 September 2018 and made a claim for international protection on 10 September 2018 on the basis that they feared persecution and/or serious harm because of their race and history of having been persecuted and having been victims of crime.

5

The IPO received the Applicants completed Questionnaire on 5 October 2018. They were interviewed under s.35 of the Act of 2015 on 3 April 2019. The IPO issued its s.39 report on 4 June 2019 recommending that they not be given a refugee declaration or subsidiary protection. This included a finding that South Africa is a safe country of origin. They were informed by letters dated 9 September 2019 of this decision.

6

The Applicants appealed to the First Respondent by notices of appeal on 16 September 2019. As South Africa has been designated a safe country of origin, s. 43(b) of the Act of 2015 requires that the First Respondent consider the appeal without holding an oral hearing unless it is satisfied that it would not be in the interests of justice so to do. In this case, the appeal before the First Respondent proceeded on a papers only basis.

7

The First Respondent accepted the Applicants' general credibility and the material elements of the Applicants' claims: that they were victims of a number of different crimes including robbery of their home, and that they reported these issues to the police whose response was ineffective.

8

The First Respondent also accepted that their fears of robbery, murder and the potential abduction of the Third Applicant (who was 13) may constitute persecution. The First Respondent further accepted that the Applicants' claim had a nexus to the Convention on account of their race: they were perceived as wealthy and with social status.

9

However, the Applicants' claim for international protection failed as the First Respondent, having considered relevant Country of Origin Information, was satisfied that state protection is available in South Africa. In making that determination, the First Respondent had regard to the fact that the Second Respondent has designated South Africa as a safe country of origin pursuant to the International Protection Act 2015 (Safe Countries of Origin Order) 2018 (S.I. 121 of 2018).

Safe Country of Origin Designation
10

The Applicants submit that the designation by the Second Respondent of South Africa as “a safe country of origin” for the purposes of ss.33 and 72 of the Act of 2015 is ultra vires the Procedures Directive and/or is otherwise unlawful.

11

Section 33 of the Act of 2015 provides:-

“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, 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.”

12

Section 72 of the Act of 2015 provides:-

“(1) The Minister may by order designate a country as a safe country of origin.

(2) The Minister may make an order under subsection (1) only if he or she is satisfied that, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution, no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.

(3) In making the assessment referred to in subsection (2), the Minister shall take account of, among other things, the extent to which protection is provided against persecution or mistreatment by—

(a) the relevant laws and regulations of the country and the manner in which they are applied,

(b) observance of the rights and freedoms laid down in the European Convention on Human Rights, the International Covenant on Civil and Political Rights and the United Nations Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention on Human Rights,

(c) respect for the non-refoulement principle in accordance with the Geneva Convention, and

(d) provision for a system of effective remedies against violations of those rights and freedoms.

(4) The Minister shall base his or her assessment referred to in subsection (2) on a range of sources of information including in particular information from -

(a) other Member States,

(b) the European Asylum Support Office,

(c) the High Commissioner,

(d) the Council of Europe, and

(e) such other international organisations as the Minister considers appropriate”.

13

Counsel for the Applicants submits that the power vested in the Second Respondent to designate a country as a safe country of origin for international protection applicants, derives from Article 37(1) and Annex 1 of EU Directive 2013/32 (hereinafter referred to as “the Procedures Directive Recast”). He submits that as Ireland has not adopted the Procedures Directive Recast, the State is not entitled to avail of the provisions of that Directive in order to apply the safe country of origin concept, as defined at Annex 1, to international protection applicants, which includes by definition at s.2 of the Act of 2015, a person declared to be a refugee or a person eligible for subsidiary protection.

14

Counsel for the Respondents submits that this argument is untenable. She submits that the safe country of origin concept was established by the Procedures Directive. This was then provided for in domestic law by s.7(g) of the Immigration Act 2003 which substituted s.12(4) of the Refugee Act 1996. This was further amended by the European Communities (Asylum Procedures) Regulations 2011 (S.I. 51 of 2011) which gave effect to Annex II of the Procedures Directive. Both the 1996 Act and the European Communities (Asylum Procedures) Regulation 2011 were repealed by s.6 of the Act of 2015. However, the Act of 2015, re-enacted the safe country of origin concept prescribed by the Procedures Directive: s.33 of the Act of 2015 gives effect to Article 31 of the Procedures Directive; s.72(2) and (3) are directly derived from Annex II of the Procedures Directive; and s.72(4), (5), and (6) give effect to Article 30(4), (5) and (6) of the Procedures Directive. Thus, it is submitted, the concept of a safe country of origin and the designation of a safe country of origin is undoubtedly derived from the original 2005 Procedures Directive.

The History of “Safe Country of Origin” in EU Directives
Qualification Directive
15

EU Directive 2004/83 (hereinafter referred as “the Qualification Directive”) is the original Qualification Directive, which sets down , inter alia, the concept of subsidiary protection. Ireland is bound by this Directive and gave effect to it by way of the European Communities (Eligibility for Subsidiary Protection) Regulations 2006 and the European Union (Subsidiary Protection) Regulations 2013. Both Regulations were repealed by s.6 of the Act of 2015.

16

Article 3 of the Qualification Directive provides that Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with the Directive.

17

Article 15 of the Qualification Directive provides that serious harm consists of:-

“(a) death penalty or execution; or

(b) torture or...

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