W.P.L and Another v Minister for Justice and Equality and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 22 March 2024
• Neutral Citation: [2024] IEHC 184
• Docket Number: RECORD NO.2023/19/JR

In the Matter of Section 5 of the Illegal Immigrants (Trafficking) Act 2000 (As Amended)

Between:

W.P.L.

and

B.P.

Applicants

and

The Minister for Justice and Equality, The International Protection Appeals Tribunal, Ireland and The Attorney General

Respondents

[2024] IEHC 184

RECORD NO.2023/19/JR

HIGH COURT

JUDICIAL REVIEW

JUDGMENT Of Ms. Justice Siobhán Phelan, delivered on the 22nd day of March, 2024.

INTRODUCTION

1 . These proceedings arise from the designation by the State of South Africa as a safe country of origin for the purpose of international protection applications and impact of this designation on applications made by the Applicants who are both nationals of South Africa. Although the notion of a safe country of origin is not regulated in the Geneva Convention (Convention and Protocol Relating to the Status of Refugees), it is not a new concept on the international scene. It is widely used in migration management to define countries which, based on their stable democratic system and compliance with international human-rights treaties, are presumed safe to live in.

2 . Many, but not all, Member States of the EU rely on the safe country of origin concept in their migration processes. Ireland has made provision for the application of the concept through the designation of a country of origin as safe by ministerial order for more than twenty years.

3 . The concept of safe country of origin should be differentiated from the notion of safe third country. The concept of safe country of origin applies to a country whose own citizens are not persecuted, whereas the safe third country concept refers to a transit country considered safe for provision of international protection. The application of both concepts by the State in its immigration process are subject to regulation by EU law.

4 . In these proceedings the Applicants challenge, inter alia, the lawfulness of:

• (i) the decision of the First Named Respondent made under s.72 of the International Protection Act, 2015 (as amended) (hereinafter “the 2015 Act”) to maintain the designation of South Africa as a safe country of origin pursuant to the International Protection Act 2015 (Safe Countries of Origin) Order 2018 ( S.I. No. 121/2018) (hereinafter “the 2018 Designation Order”);

  and

• (ii) the decision of the Second Named Respondent (hereinafter “the Tribunal”) dated the 29th November, 2022 (the “Impugned Tribunal Decision”) made under s.46(3)(a) of the 2015 Act affirming the recommendation of the International Protection Office (“IPO””) under s.39(3)(c) of the 2015 Act that the Applicants be given neither refugee nor subsidiary protection declarations.

FACTUAL BACKGROUND

5 . The Applicants are a couple from South Africa who made a claim for international protection in the State on the 21st of January 2021 on the basis that they are not safe in South Africa due to “ farm attacks, crime, corruption, and because they are unable to find work due to the [system of] Black Economic Empowerment”. The Applicants assert fears that they would be targeted by criminals and that the risk is enhanced due to their race or ethnicity, or perceived wealth and/or membership of a particular social group of white farmers in South Africa, who are reasonably likely to be subject to violent acts on that basis.

6 . The Applicants were interviewed under s.35 of the 2015 Act on the 14th of June 2022. On the 23rd of August, 2022, the International Protection Office (“IPO”) issued each Applicant with a report pursuant to s.39 of the 2015 Act which determined that they should be given neither a refugee nor subsidiary protection declaration. The IPO records in its recommendations that under the 2018 Designation Order the Applicants' country of origin, South Africa, is designated as a safe country. In consequence of this designation, the Applicants' appeals from the decisions of the IPO fell under the prescribed modifications of s.43 of the 2015 Act, and fall to be determined without an oral hearing unless the Tribunal determines that one is required in the interests of justice.

7 . The Applicants duly appealed to the Tribunal on the 29th of August 2022. Although not automatically entitled to an oral hearing, the Tribunal determined that the interests of justice required that a full appeal with oral hearing be afforded to the Applicants.

8 . The appeal hearing took place on the 16th of November 2022.

9 . The Impugned Tribunal Decision is dated 29th November 2022, and was issued on the 1st December 2022.

IMPUGNED TRIBUNAL DECISION

10 . As recorded in the Impugned Tribunal Decision the Tribunal assessed the material factual elements of the Applicants' claims and accepted as follows (at paragraph 4.16):

• The First and Second named Applicants are white, South African nationals from South Africa;

• South Africa has a very high crime rate and the Applicants, and their family members, have been the victims of crime, including the following incidents;

• i) In 2008, the Second Named Applicant was robbed at gunpoint while in her car;

• ii) The Second Named Applicant also experienced incidents where people tried to grab items from her car, however she was able to drive away in time;

• iii) In November 2019, the First Named Applicant was attacked on his parents' farm and received a cut to his stomach;

• iv) In 2018, the First Named Applicant's brother was attacked on a farm owned by his parents in Magaliesburg;

• v) In October 2020, the First Named Applicant's father was attacked and robbed at an ATM;

11 . It was not accepted by the Tribunal following an assessment of the evidence and the Country-of-Origin information (hereinafter “the COI”) that white people in South Africa are more at risk of crime from black people because of their race. While it was accepted that the Applicants may find it difficult to find work due to the high rate of unemployment in South Africa, the contention that they would be unable to find work in South Africa or run a viable company due to “ Black Economic Empowerment” was not accepted.

12 . The Tribunal found that there was no reasonable chance the Applicants would face a well-founded fear of persecution based on nationality or religion (at paragraph 5.2) or for reasons of lack of employment (at paragraphs 5.3–5.5) or based on Hate Crime (at paragraph 5.8). While accepting that the First Named Applicant was attacked on his parents' farm, as was his brother (paragraph 5.11), the Tribunal found (at paragraph 5.12) that there are “ very high crime rates in South Africa” and that the Applicants were “ victims of common criminals … due to the effects of the poor economic situation and the high crime rate” but that this does not amount to persecution for a Convention reason and no causal connection has been established as the incidents of crime do not “ appear to be motivated by reasons of race.”

13 . It is recorded in the decision (at paragraph 5.12) that the Applicants accepted at hearing that they and their family members were victims of random incidents of crime and they had not claimed, nor was there evidence before the Tribunal, that any of the individual crimes were connected to or carried out by the same individuals or group.

14 . The Tribunal accepted that the incidents were “ traumatic experiences” for the Applicants but that they did not reach “ the level of severity required to characterise the past mistreatment they experienced, as past persecution.” (at paragraph 5.14).

15 . The Tribunal found that COI shows that white South Africans are not generally at any greater risk of crime than other races or ethnicities. The Tribunal found (at paragraph 5.15) that “ even for farmers who might be at a somewhat elevated risk of experiencing crime in South Africa, there is insufficient evidence to support a finding that this is at a level that gives rise to a well-founded fear of persecution”. The Tribunal further noted that, by their own evidence, the Applicants “ are not farmers and last resided on the first named Appellant's parents' farm when Covid-19 restrictions were in effect and they were unable to continue with their employment in Cape Town.” The Tribunal also noted that “ they would not be returning to work on a farm in South Africa” as the plot rented had been relinquished and there was an “ extremely remote possibility that they may work on a farm.”

16 . Having referred to the COI relied upon and the individual circumstances of the Applicants, the Tribunal concluded that it had not been demonstrated that they have a well-founded fear of future persecution should they be returned (at paragraph 5.16). The Tribunal found there to be a “ reasonable chance that if the Appellants were to be returned to their country of origin they would experience incidents of crime, such as theft or robbery” but that such crimes would be “ opportunistic and do not constitute persecution or serious harm”.

17 . As for the Second Named Applicant's assertion that she is at risk of rape because she is a woman, it was accepted that COI indicates that rape and other gender-based violence against women is a pervasive issue in South Africa, such that in theory a convention nexus could be established on this basis. Accordingly, the Tribunal determined that for completeness and notwithstanding a finding that past persecution had not occurred that it would proceed to assess whether State Protection would be available to the Applicants if they returned to their country of origin against crime generally, including that which is gender-based.

18 . In assessing State Protection, the Tribunal noted (at paragraph 5.18) that South Africa has been designated to be a safe country of origin and it was observed that this creates a rebuttable presumption that there is generally no persecution, torture or inhuman or degrading treatment. Immediately afterwards, however, the Tribunal added:

“ …each case must be determined on its...