L.F. (South Africa) v The International Protection Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 01 July 2019 |
| Neutral Citation | [2019] IEHC 512 |
| Court | High Court |
| Docket Number | [2018 No. 728 J.R.] |
| Date | 01 July 2019 |
[2019] IEHC 512
THE HIGH COURT
JUDICIAL REVIEW
Humphreys J.
[2018 No. 728 J.R.]
AND
Judicial review – Asylum – Subsidiary protection – Applicant seeking judicial review – Whether the decision of the respondent was vitiated by reason of the finding that the applicant can avail of internal relocation without compliance by the respondent with Regulations 13(5) and (6) of the European Union (Subsidiary Protection) Regulations 2013 and Section 32 of the International Protection Act 2015
Facts: The applicant, a South African national, following her finding out in 2015 that her partner was involved in organising prostitution, was herself falsely imprisoned and raped and was threatened that her daughters would be kidnapped and forced into prostitution. On 3rd February, 2016, she left South Africa and came to Ireland. On 12th February, 2016, she applied for asylum. She was notified that this was refused on 19th July, 2016, and on 5th August, 2016 she appealed that decision to the Refugee Appeals Tribunal. After the commencement of the International Protection Act 2015 she was deemed to have applied for subsidiary protection and submitted a questionnaire in that regard. On 23rd November, 2017 she was notified that the International Protection Office had refused the application for subsidiary protection. She then appealed to the first respondent, the International Protection Appeals Tribunal (IPAT), on 12th December, 2017. An oral hearing took place on 5th April, 2018. The tribunal rejected her appeals on 14th August, 2018 and she was so notified on or about 17th August, 2018. Proceedings were filed on 5th September, 2018 and the High Court (Humphreys J) granted leave on 10th September, 2018. A statement of opposition was filed on 21st February, 2019. The primary relief sought in the proceedings was certiorari of the IPAT decision of 17th August, 2018, although the relief sought was limited to particular paragraphs of the decision, namely paras. 5.13 to 5.19, 7.1, 8.7 to 8.9 and 10.1. Ground 1 contended that “The decision of the IPAT is vitiated by reason of the finding, at paras. 5.13-5.19 and paras. 8.7-8.9, that the Applicant can avail of internal relocation without compliance by the IPAT with Regulations 13(5) and (6) of the European Union (Subsidiary Protection) Regulations 2013 and Section 32 of the International Protection Act 2015”. Ground 2 contended that “The decision of the IPAT that the Applicant can avail of internal relocation is further flawed by reason of the irrational finding, at the end of para. 5.15, that “The fact that the appellant’s children are still in Cape Town and have not only not been harmed by [her partner] but have in fac[t] received financial support from him indicates that he does not pose any danger to them and may not have any intention of pursuing the Appellant if she relocates to Johannesburg in any event”.
Held by Humphreys J that the tribunal failed to make a clear assessment of what the precise family arrangement was going to be in the country of origin and whether that arrangement was one to which the applicant could reasonably be expected to submit. Humphreys J held that the problem in the very fact-specific situation in this case was that the decision-maker found as a fact that the applicant’s partner was involved in organising prostitution; having regard to that finding of fact it was not possible to rationally draw a benign inference from his interest in the applicant’s young daughters
Humphreys J held that the order would be one of certiorari partly quashing the decision to the extent of paras. 5.13 to 5.19, 7.1, 8.7 to 8.9 and 10.1, and remitting the matter to the same tribunal member to complete the decision in accordance with the judgment of the court.
Relief granted.
The main elements of the applicant's claim for international protection were accepted by the tribunal member in the present case. The applicant is a South African national born in Cape Town in 1976 and has four daughters born in 1993, 1997, 2002 and 2005. The first two children have different fathers from each other and from the younger daughters. The applicant lived in Cape Town up to 2016. Following her finding out in 2015 that her partner, Mr. O., a national of Nigeria, was involved in organising prostitution, the applicant was herself falsely imprisoned and raped and was threatened that her daughters would be kidnapped and forced into prostitution.
On 3rd February, 2016, she left South Africa and came to Ireland. According to her asylum questionnaire she stated that the location of the two older children was ‘N/A’, which was not a very informative answer. Her counsel says that his instructions are that the two older children were living independently by 2016. One was a teenager and one was in her early twenties. The two younger daughters, as well as the daughter of one of the older children, were left behind in Cape Town with the applicant's mother and grandmother. On 12th February, 2016, the applicant applied for asylum. She was notified that this was refused on 19th July, 2016, and on 5th August, 2016 she appealed that decision to the Refugee Appeals Tribunal. After the commencement of the International Protection Act 2015 she was deemed to have applied for subsidiary protection and submitted a questionnaire in that regard.
On 23rd November, 2017 she was notified that the International Protection Office had refused the application for subsidiary protection. She then appealed to the International Protection Appeals Tribunal on 12th December, 2017. An oral hearing took place on 5th April, 2018. Mr. Shannon Haynes B.L. appeared for the applicant. The tribunal rejected her appeals on 14th August, 2018 and she was so notified on or about 17th August, 2018.
The present proceedings were filed on 5th September, 2018 and I granted leave on 10th September, 2018. A statement of opposition was filed on 21st February, 2019. The primary relief sought in the proceedings is certiorari of the IPAT decision of 17th August, 2018, although the relief sought is limited to particular paragraphs of the decision, namely paras. 5.13 to 5.19, 7.1, 8.7 to 8.9 and 10.1, the idea presumably being that the applicant wishes to preserve the favourable parts of the tribunal decision. I have received helpful submissions from Mr. Mark de Blacam S.C. (with Mr. Garry O'Halloran B.L.) for the applicant and from Ms. Emma Doyle B.L. for the respondents.
Ground 1 contends that ‘ The decision of the IPAT is vitiated by reason of the finding, at paras. 5.13-5.19 and paras. 8.7-8.9, that the Applicant can avail of internal relocation without compliance by the IPAT with Regulations 13(5) and (6) of the European Union (Subsidiary Protection) Regulations 2013 and Section 32 of the International Protection Act 2015.’.
This point is incorrectly pleaded because regs. 13(5) and (6) had already been revoked by s. 6 (2)(n) of the 2015 Act prior to the applicant being deemed to have made an application for subsidiary protection, which only occurred on the commencement of the 2015 Act. Therefore the consideration of internal relocation is governed by the 2015 Act exclusively and not by the 2013 regulations as far as the present case is concerned. The relevant provision of the 2015 Act is s. 32(1)(b). Section 32(1) provides for the possibility of refusing the claim for international protection on the grounds of internal relocation and states that an international protection officer or the tribunal can consider an applicant not to be in need of international protection: ‘if in a part of the country of origin the applicant (a) has (i) no well-founded fear of being persecuted or is not at real risk of suffering serious harm, or (ii) access to protection against persecution or serious harm, and (b) can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there.’
There is some divergence between this wording and the corresponding wording of art. 8.1 of the qualification directive 2004/83/EC, which refers to a requirement that ‘ the applicant can reasonably be expected to stay in that part of the country’. The reference to ‘ stay’ in the 2004 directive was also contained in the 2013 regulations. By contrast the reference to ‘ settle’ which is used in the 2015 Act appears to originate in the recast qualification directive 2011/95/EU, which is not applicable to Ireland. Why the term ‘settle’, a term which on the face of it is more emphatic than ‘stay’, was used in the 2015 Act is unclear. No explanation whatsoever was furnished on behalf of the respondents other than the circular one that the definitions of statutory terms are a matter for the Oireachtas. That does not inspire any great confidence that the wording of this provision of the 2015...
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