Ireland - FM and RM v International Protection Appeals Tribunal & ANOR (Approved)
| Country of Decision: | Ireland |
| Country of applicant: | South Africa |
| Court name: | The High Court |
| Date of decision: | 21-12-2021 |
| Citation: | [2021] IEHC 817 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Country of origin information
Description
"Information used by the Member States authorities to analyse the socio-political situation in countries of origin of applicants for international protection (and, where necessary, in countries through which they have transited) in the assessment, carried out on an individual basis, of an application for international protection.” It includes all relevant facts as they relate to the country of origin at the time of taking a decision on the application, obtained from various sources, including the laws and regulations of the country of origin and the manner in which they are applied, regulations of the country of origin, plus general public sources, such as reports from (inter)national organisations, governmental and non-governmental organisations, media, bi-lateral contacts in countries of origin, embassy reports, etc. This information is also used inter alia for taking decisions on other migration issues, e.g. on return, as well as by researchers. One of the stated aims of the European Asylum Support Office (EASO) is to progressively bring all activities related to practical cooperation on asylum under its roof, to include the collection of Country of Origin Information and a common approach to its use. |
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Safe country of origin
Description
"A country where, 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 as defined in Article 9 of Directive 2004/83/EC, 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. In making this assessment, account is taken, inter alia, of 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 (ECHR) and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms.” |
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Protection
Description
A concept that encompasses all activities aimed at obtaining full respect for the rights of the individual in accordance with the letter and spirit of human rights, refugee and international humanitarian law. According to Article 2(a) of the Qualification Directive, international protection meansrefugee and subsidiary protection status as defined in (d) and (f). According to Recital 19 of the Qualification Directive “Protection can be provided not only by the State but also by parties or organisations, including international organisations, meeting the conditions of this Directive, which control a region or a larger area within the territory of the State”. According to Annex II of the Asylum Procedures Directive, in the context of safe countries of origin, protection may be 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 ECHR and/or the International Covenant for Civil and Political Rights and/or the Convention against Torture, in particular the rights from which derogation cannot be made under Article 15(2) of the said European Convention; (c) respect of the non-refoulement principle according to the Geneva Convention; (d) provision for a system of effective remedies against violations of these rights and freedoms. |
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Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
Headnote:
The High Court found that the Tribunal failed to ask itself the correct legal questions when assessing the issue of state protection in the applicants’ country of origin.
In specific, the High Court found that the Tribunalfailed to apply the correct approach to the ‘state protection test’ found in section 31 of the International Protection Act, 2015, by not seeking to establish whether an effective system of protection is in place, which is non-temporary in nature and which involves the taking of reasonable steps to protect those who otherwise faced a real risk of persecution or serious harm.
Facts:
The applicants, a father and his daughter, applied for international protection in Ireland. The applicants claimed they feared persecution in South Africa due to reasons of race, as the father was originally from the Dominican Republic of Congo. Following the rejection of their application by the International Protection Office (IPO), they submitted an appeal to the International Protection Appeals Tribunal putting forward country of origin information.
The Tribunal found that the applicants had a well-founded fear of persecution, however, they could benefit from effective state protection available in South Africa. The Tribunal cited the US State Department Report on South Africa 2018 and the Human Rights Watch Report for South Africa 2019 to conclude that the level of state protection available ‘appears on balance to be effective protection for potential victims of violence.’ In specific, the Tribunal relied on the US State Department’s assertion that the South African government ‘sometimes responded quickly and decisively to xenophobic incidents.’
As such, the Tribunal affirmed the IPO’s recommendation that the applicants should not be granted refugee status or a subsidiary protection declaration.
The applicants sought judicial review, claiming that the Tribunal failed to comply with section 31 of the International Protection Act 2015. In specific, they claimed that the Tribunal failed to ask itself the correct questions to effectively determine whether state protection was available in South Africa.
Decision & reasoning:
The US Department Report on South Africa 2018
The High Court found that the Tribunal’s reliance on the US Department Report material, which stated that the South African Government ‘sometimes’responded quickly and decisively to xenophobic incidents, did not demonstrate the existence of effective protection as per article 31(2) and 31(4) of the International Protection Act [para. 27].
Moreover, the High Court found the decision of the Tribunal erroneous in law. This was because the Tribunal laid emphasis on only one part of the US report, while ignoring the rest of the extract [para. 29].
As such, the High Court found that the Tribunal could not effectively conclude form the US report that state protection in South Africa was ‘non-temporary’ in nature, as required by s.31 (2) (a), and that there existed ‘an effective legal system for the detection, prosecution and punishment of such acts’ as required by s.31(4).
The Human Rights Watch Report 2019
The High Court found that there was unequivocal evidence in the country-of-origin information material that South Africa lacked an effective legal system.
In specific, The Human Rights Watch Report on South Africa stated that ‘virtually no one has been convicted for past outbreaks of xenophobic violence’, demonstrating the lack of an effective legal system for the detection, prosecution and punishment of acts of persecution or serious harm, as set out in s.31(4) of the International Protection Act [para. 31].
The High Court, therefore, concluded that effective state protection was not available in South Africa.
International Protection Act 2015, section 31
The High Court clarified that the test within Article 31 of the International Protection Act is not merely one of ‘effort’. Instead,section 31 requires that an effective system of protection is in place, which is non-temporary in nature and which involves the taking of reasonable steps to protect those who otherwise faced a real risk of persecution or serious harm [para. 30]
Moreover, the High Court noted that it might be of assistance to the IPO and Tribunals dealing with questions of state protection to refer to the three questions identified by Barrett J. in BC v. IPAT [2019]. As per Barrett J, courts should consider the following questions when assessing state protection:
- Does the State in question take reasonable steps to prevent the persecution or suffering of the serious harm feared by a particular applicant?
- Do such steps include the operating of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm?
Is such protection effective and of a non-temporary nature?
Outcome:
An order of certiorari quashing the Tribunal decision
Cited National Legislation:
| Cited National Legislation |
| International Protection Act 2015, ss. 31(1)–(4), 35 and 39. |