E.S. v International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 04 November 2022
• Neutral Citation: [2022] IEHC 613
• Court: High Court
• Docket Number: [Record No.: 2021/947 JR]

Between

E.S.

Applicant

and

The International Protection Appeals Tribunal

and

The Minister for Justice

Respondents

[2022] IEHC 613

[Record No.: 2021/947 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Subsidiary protection – State protection – Applicant challenging the refusal of the first respondent to recognise his right to subsidiary protection – Whether State protection was available in South Africa

Facts: The applicant, Mr Stokell, applied to the High Court seeking judicial review. The applicant challenged the refusal of the first respondent, the International Protection Appeals Tribunal (the Tribunal), to recognise his right to subsidiary protection (it being accepted that a Convention nexus was not demonstrated such as would support an entitlement to refugee status), on the basis of findings that while the applicant had suffered past persecution in his native South Africa, State protection was available. The decision made by the Tribunal (the Decision) pursuant to the provisions of the International Protection Act 2015 was challenged as being legally flawed by reason of a failure to apply the correct legal test, a failure to properly reason the decision, and a lack of rationality.

Held by Phelan J that the applicant was not deprived of the benefit of s. 28(6) of the 2015 Act and a failure to apply the rebuttable presumption or to treat that presumption as rebutted without expressly so stating was not the reason the application failed. Phelan J was satisfied that the Tribunal properly construed and applied s. 31 of the 2015 Act in considering the availability of State protection in South Africa. Phelan J held that the facts of the case were entirely distinguishable from N.U. v IPAT & Anor [2022] IEHC 87 in that there was no apparent conflation of the tests under ss. 31 and 33 of the 2015 Act in this case. Phelan J held that there was nothing in the Decision to support a conclusion that a presumption of State protection was relied upon to defeat the claim as it was clear that the Tribunal conducted an evaluative assessment of the actual protections available and arrived at a conclusion on the facts as supported by the material before the Tribunal. Phelan J did not consider that it was necessary for the purposes of this case to determine whether a reverse evidential burden or presumption has survived the enactment of the 2015 Act and applies as a matter of Irish law. In Phelan J’s view the Tribunal came to a rational decision for reasons properly set out and the Decision had not been established to be unreasonable.

Phelan J I dismissed the application for judicial review.

Application dismissed.

JUDGMENT OF Ms. Justice Siobhán Phelan, delivered on the 4 ^th day of November, 2022

INTRODUCTION

1 . In these proceedings the Applicant challenges the refusal of the International Protection Appeals Tribunal (hereinafter “the Tribunal”) to recognise his right to subsidiary protection (it being accepted that a Convention nexus was not demonstrated such as would support an entitlement to refugee status), on the basis of findings that while the Applicant had suffered past persecution in his native South Africa, State protection was available.

2 . The Decision made by the Tribunal (hereinafter “the Decision”) pursuant to the provisions of the International Protection Act, 2015 (hereinafter “the 2015 Act”) is challenged as being legally flawed by reason of a failure to apply the correct legal test, a failure to properly reason the decision, and a lack of rationality.

BACKGROUND

3 . The Applicant is a South African national who arrived in the State on 6th of September, 2018. He made a claim for protection on the basis that if he returned to South Africa, he would face persecution and/or serious harm due to the fact that he is a white man. In support of his application he describes a number of different instances where he or members of his family had been attacked and/or robbed over an approximate ten-year period including incidents involving injury due to the discharge of firearms. Some of these incidents were reported to the police and others were not. In the case of incidents which had been reported, the Applicant considers the police response ineffective. Immediately prior to his departure for Ireland, the Applicant claims to have been pulled over by police who subsequently abused and robbed him. He contends that crime is out of control in South Africa and he fears that he will be killed, as others have been, if forced to return.

4 . The Applicant was refused international protection at first instance, which decision was upheld in the impugned Decision on appeal. In the first instance decision, reference was made to the fact that South Africa has been designated a safe country of origin and it was concluded that he had not submitted any serious grounds for considering that it was not a safe country of origin in his particular circumstances in terms of his eligibility for refugee status. It was concluded that he had not established a well-founded fear of perssecution nor substantial grounds for believing that he would face a real risk of suffering serious harm if returned to South Africa.

5 . A different position was taken on appeal to the Tribunal in that it is common case that the Applicant would have been granted international protection (in the form of subsidiary protection) on the basis of the risk of him suffering similar harm in future to that which he has already experienced or been directly threatened with, save for the conclusion of the Tribunal that State protection was available. The challenge in this case is directed to the approach taken by the Tribunal in determining that State protection was available.

PROCEDURAL HISTORY

6 . The Applicant was granted an extension of time at the leave stage. No objection on time grounds was maintained by the Respondents at hearing. This case previously came before O'Regan J. on the 28th of June, 2022 for hearing when, following a preliminary pleading objection to matters raised in the Applicant's legal submissions dated he 7th of March, 2022, O'Regan J. adjourned the matter to allow the Applicant to apply to amend the statement of grounds. By direction of of Meenan J. of the 19th of July, 2022 an amended Statement of Grounds and a further Affidavit as well as amended submissions were filed. It appears that no restriction was placed by Meenan J. on the terms of the amendment allowed.

7 . Objection was taken during the course of the hearing before me to an argument made on behalf of the Applicant that the concept of State protection provided for under s. 31 did not apply in respect of “ State actors”. It was accepted that while leave had been granted to challenge the decision on the basis of a failure to properly apply the legal test under s. 31(2) and 31(4) of the 2015 Act, this did not encompass as a ground of complaint that reliance on State protection at all, as provided under s. 31, was flawed as it did not apply to State actors. It is claimed that more specific pleading was required to advance such a case

8 . I agree that the first appearance of an argument that the Tribunal was wrong to apply the concept of State protection at all insofar as the actions of State actors (the police) were concerned was in the amended written submissions. In their amended written submissions, the Applicants refer to Hailbronner and Thym, ‘EU Immigration and Asylum Law’ (3rd edn, Beck/Hart/Nomos, 2022) which they submit appears to read the State protection concept as relevant only to protection from non-State actors and not to State actors specifically where they say at paragraph 4 of p.1267 that:

“If persecution or other serious unjustified harm stems from the state then such fear is well-founded because de facto there is no viable avenue of protection available in the country of origin. If it stems from non-state agents then any such fear is only well-founded if the state is unwilling or effectively unable to provide protection against such risk of harm.”

9 . The Applicants contend that this distinction suggests that the concept of State protection is inappropriate where a risk of harm from the police has been found to exist. It is further submitted that this interpretation accords with the correct interpretation of s. 31 of the 2015 Act — interpreted in the light of s. 30, wherein it appears that State protection is relevant only to non-State actors within the meaning of s. 30(c) but not State-actors as referred to in s. 30(a), because the reference to “ protection against persecution or serious harm,” is referred to only in s. 30(c) and not in s. 30(a). Section 31 then appears relevant, it is submitted, only to non-State actors as described in s. 30(c) specifically and not all actors referred to in s. 30 as a whole. This is a very fundamental argument of some obvious importance and even novelty. It was acknowledged on behalf of the Applicant that the Applicant's pleading does not go so far as to suggest that s. 31 cannot be applied at all to State actors of harm and they are not urging this position in this case. It is noted that no reference whatsoever to s. 30 of the 2015 Act appears in the Statement of Grounds.

10 . I am quite satisfied that specific pleading is required to advance the argument that the State protection concept does not apply at all in respect of State actors of harm and that leave has not been granted to make this case notwithstanding that the Applicants were afforded an opportunity by Meenan J. to amend their Statement of Grounds as they saw fit. Accordingly, this question is not properly open for determination in this case and remains for determination in a case in which it properly arises. I express no view on the argument as canvassed in the submissions. The alternative argument, which was pursued at hearing on behalf of the Applicant, is that the case as pleaded permits it...