BAILII
British and Irish Legal Information Institute


Freely Available British and Irish Public Legal Information

[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

High Court of Ireland Decisions


You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.M.S. v International Protection Appeals Tribunal & Ors (Approved) [2025] IEHC 294 (23 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC294.html
Cite as: [2025] IEHC 294

[New search] [Printable PDF version] [Help]

[2025] IEHC 294

THE HIGH COURT

JUDICIAL REVIEW

Record No. 2022/1078JR

 

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

 

BETWEEN:

M.M.S.

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

 

JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 23rd day of May, 2025

 

INTRODUCTION

 

1.                  This judgment concerns an application for judicial review in which the applicant seeks to quash a decision by the first respondent (the Tribunal) on an appeal from an International Protection Officer (IPO) to refuse her application for refugee status and subsidiary protection. The application concerns decisions made, inter alia, pursuant to the provisions of the International Protection Act 2015 (the 2015 Act). Consistent with the principles in section 26 of the 2015 Act, the identity of the applicant has been anonymised and certain potentially identifying information has been presented in a form that minimises the potential for the applicant to be identified.

 

2.                  The impugned decision was made in the context of an application for refugee status and / or subsidiary protection. In short form, the applicant sought protection in this State on the basis that she had a well-founded fear of persecution for reasons of her membership of a particular social group. The applicant claimed that following the death of her husband she had been subject to threats, harassment and confiscation of property by members of his family (which amounted to persecution). She claimed that this was a feature of life experienced by widows in South Africa (a social group of which she was a member) and that despite taking steps to seek protection she believed that she could not receive adequate protection in South Africa from the State. The IPO and the Tribunal essentially accepted the factual history that the applicant had rehearsed but did not accept that her claims brought her into the category of someone who qualified for refugee status or subsidiary protection. This all occurred against the backdrop of South Africa having been designated as a safe country of origin, a designation that has implications for the manner in which the international protection process operates.

 

3.                  In these proceedings the applicant challenged the Tribunal decision on a number of grounds that will be addressed in detail below, but which can be grouped as fair procedure grounds and rationality grounds. For the reasons explained below, I have concluded that the application should be refused.

 

 

 

 

BACKGROUND

 

4.                  The applicant is the primary source of background information, having provided information and documents as part of the application process and having sworn an affidavit in support of this application. A feature of the process that gave rise to these proceedings is that to a very large extent the history of events given by the applicant was accepted for the purposes of the statutory process. The issues in the case arise from the manner in which the statutory decision makers treated and characterised those facts.

 

5.                     In her affidavit sworn on the 9 December 2022, the applicant stated that she was a national of South Africa and was born in 1980. She arrived in Ireland and sought international protection on or about the 24 February 2022. The applicant has exhibited a variety of documentation that she provided to the International Protection Office in support of her application.

 

The IPO questionnaire

6.                  The relevant IPO questionnaire contains a preliminary section dealing with "safe country of origin". That section provides as follows:-

"You may have been told that you come from a designated Safe Country of Origin (set out in Section 72 of the International Protection Act 2015). This means that the Minister for Justice believes that in your country there is generally and consistently:

·               No persecution

·               No torture or inhuman or degrading treatment or punishment

·               No threat of indiscriminate violence and situations of international or internal armed conflict in your country

It is important that you tell us:

·               Why you think it is not a safe country of origin in your particular circumstances

·               Why the conditions are relevant to your application for international protection

 

7.                  In the substantive part of the questionnaire, the applicant stated that she had been married but her husband passed away in December 2019. She asserted that prior to her husband's death and while he was in hospital, her in-laws started to fight with her about his belongings. Because the couple did not have children, the in-laws felt entitled to all his belongings. She stated that, after the funeral, she was accused of killing her husband and then she was excluded or evicted from her husband's house. She stated that after she was ejected, she went to court to have the house transferred to her name. She stated that even after the post-mortem examination showed that her husband died from illness, his family continued to accuse her of killing him. She stated that in 2021 she started to receive strange messages and private calls threatening her life and that this was the reason she sought international protection. She stated that she had been the subject of threats in messages sent to her, threatening to kill her if she returned to her country of origin, and she believed that her in-laws would kill her. She summarised her belief that her life was in danger in South Africa and that she was scared to return back because of the danger facing her.

 

8.                  Among the documents submitted by the applicant was a post-mortem examination report prepared by a doctor which attested that the applicant's husband was admitted to hospital with a diagnosis of perforated appendix. It stated that the cause of death was determined to be consistent with a history of perforated appendix requiring surgery and complications thereof.

 

9.                  The applicant also exhibited application forms that she completed for a protection order under the relevant South African legislation, and a consequent interim protection order prohibiting identified respondents (members of her late husband's family) from engaging in various forms of harassment, abuse and threats together with any direct or indirect contact with the applicant and a prohibition on entering her place of residence.

 

10.              On the 9 May 2022, the solicitors acting for the applicant wrote to the International Protection Office submitting further documents. Among the documents exhibited was an official certificate designating her as the executrix of her deceased husband.

 

The IPO interview

11.              The applicant was interviewed by the IPO on the 8 July 2022, and the IPO completed a report of an interview carried out with the applicant pursuant to s. 35(12) of the 2015 Act. As part of the interview process, the applicant gave further details of the reasons why she was seeking international protection. She described interactions with her in-laws during the period when her husband was in hospital (from November 2019) which included threats and insults being directed towards her. Following the death of her husband in December 2019, she continued to experience difficulties with her in-laws. In particular, on the 29 December 2019 they ejected her from her house, stating that the house belonged to the family and not to her husband.

 

12.              Due to her difficulties, she arranged with her local housing department to have the house transferred into her name, which again created friction with her in-laws. She stated that one of her in-laws accused her of killing her husband because she wanted to acquire the house. She stated that while the house remained in her name, she "left everything to them". She stated that she was scared because they kept sending threatening messages to her.

 

13.              In November 2021, she received the autopsy report in respect of her husband's death and sent it to her in-laws. However, her brother-in-law did not accept the autopsy report and stated that he knew where the applicant was staying. The applicant noted that some of her in-laws were working close to her own place of work and appeared to "know everything about my movement."

 

14.              Upon further questioning, the applicant confirmed that she started receiving threatening messages from an unknown number in February of 2020, and, although she changed her number in July of 2020, she continued receiving messages. The gravamen of the messages was that the applicant was accused of killing her husband. The applicant also relayed an incident that happened after she left South Africa in January 2022, and that had been reported to her by her new partner. He reported that he was going to a garage to buy petrol, and he saw the applicant's in-laws drive in and felt unsafe. When he noticed who they were, he ran to his car and drove off and hid in a safe place.

 

15.              She stated that while she reported matters to the police, they did nothing after she obtained a protection order. In response to the specific question "what do you feel would happen if you were to return to your country of origin?" she stated "I am scared of my laws [sic], because they can kill me. I feel that my life is not safe there." She stated that the whole of South Africa was not safe for her, and therefore she could not move to another part of the country. She stated "South Africa is not safe because I reported the issue I had with my in-laws and the police did nothing about them. They only gave me a protection order and that was it. It is not safe."

 

The IPO decision

16.              By letter dated the 12 September 2022, the applicant was informed that the IPO who considered her application for international protection was recommending pursuant to s.39(3)(c) of the 2015 Act that she should be given neither a refugee declaration nor a subsidiary protection declaration. The cover letter informed the applicant of her entitlement to appeal within the stipulated time period.

 

17.              The report from the IPO began by noting that South Africa had been designated by the Minister for Justice and Equality at the time as a safe country of origin pursuant to s. 72 of the 2015 Act and the International Protection Act 2015 (Safe Countries of Origin) Order 2018 (S.I. No. 121 of 2018) (the "2018 Order"). The IPO stated that the consequence of the designation of South Africa as a safe country of origin was that South Africa will be considered to be a safe country of origin where the applicant does not submit any serious grounds for considering the country not to be a safe country of origin in her particular circumstances in terms of her eligibility for international protection.

 

18.              The IPO accepted a number of elements in the applicant's application. The IPO accepted as material facts that (i) the applicant was a national of South Africa, (ii) the applicant was married to her husband and that he died in December 2019, (iii) it was accepted as a general proposition that widows can be ill-treated by their late husband's relations in South Africa, and (iv) it was accepted that the applicant had been threatened by her late husband's relations.

 

19.              In terms of the country of origin information, reference was made to a variety of materials, including an article published by an academic of the University of Pretoria which describes the poor treatment of widows by their immediate family. The material referred to evidence of disinheritance and eviction from their marital homes, and the article notes that "without recourse, widows and their surviving children may end up in a dire socioeconomic state after a spouse's death and lose their sense of security." The article also notes that widows are often blamed for their late husband's deaths. That general thrust of accounts concerning discrimination against widows appears corroborated by country-of-origin information considered by the IPO.

 

20.              The IPO considered that the applicant provided coherent and consistent responses to questions put to her at her s. 35 interview and had submitted copies of a variety of documents which, while they could not be verified, were sufficient to grant her the benefit of the doubt that on the balance of probabilities the applicant was evicted from her late husband's house by his relations who also seized his properties.

 

21.              Under the heading "persecution and objective basis" the IPO found that the applicant:

"would face a reasonable chance of persecution if returned to her country of origin for the following reasons.

·               It has been accepted that the applicant is a 42 year old woman, widow, Christian of Sotho tribe, South Africa.

·               It is further accepted that the applicant was married to [name redacted] and he died on [redacted date] December, 2019.

·               It is equally accepted that the applicant was evicted from her late husband's house by his relations who also seized his properties.

In addition, it is accepted that the applicant was threatened by her late husband's relations."

 

22.              As put by the IPO, the accepted facts indicated that the applicant was threatened and evicted from her late husband's house by his relations who also seized his properties after his death, and that the threat continued after she was evicted. The IPO states:

"while this is no doubt a serious matter, the applicant, however, took measures to deal with the issues: she changed her telephone number, she put the house in her own name, and she obtained protection orders against her late husband's siblings. The issues the applicant faced are civil in nature, and there are effective laws and law enforcement system, including the police and courts, in South Africa to deal with this kind civil matters (sic) that applicant faced. Also, she had availed of their services in obtaining protection orders against her late husband's siblings.

It is therefore not considered that the accepted facts give rise to a well-founded fear of persecution on behalf of the applicant."

 

23.              For much the same reasons, the consideration of subsidiary protection found that substantial grounds were not shown for believing that the applicant would suffer a real risk of serious harm if returned to her country of origin. It can be seen that the although the IPO appeared to accept that what the applicant had faced in South Africa amounted to persecution, this was rendered somewhat unclear by the later conclusions or observations about the availability of State protection.

 

THE APPEAL TO THE TRIBUNAL

 

24.              On the 19 September 2022, the solicitors for the applicant submitted a notice of appeal to the Tribunal. In the notice of appeal, three grounds of appeal were asserted. First, it was stated that the IPO had not given due weight to the applicant's accepted experience of threats, evictions and violence. Second, it was asserted that the IPO had not given due weight to the country-of-origin information which outlines "the severe problems and lack of support in the State for widows harassed by deceased husbands' relatives." Third, the IPO also was accused of mischaracterising this issue as a civil matter when it "has clearly passed the criminal threshold. The applicant further has genuine and reasonable belief that the police there were inadequate to protect her from the family."

 

25.              Significantly, at part 7 of the notice of appeal, a box is ticked requesting an oral hearing. However, the portion of the form that permits the applicant to provide reasons why it is in the interests of justice that an oral appeal be heard was left blank.

 

26.              On the 29 September 2022, the appellant submitted written submissions in support of her appeal. These noted that the material aspects of her claim were accepted by the IPO. The submissions contested the finding that the steps taken by the applicant to change her number and address and other matters including obtaining protection orders would adequately protect her. It is stated that the fact that the applicant obtained protection orders in a country like South Africa would not be a shield to violence, commenting on that regard, a lack of police resources and a lack of will to adequately enforce protection orders. 

 

27.              It was also contested that the events described by the applicant were civil matters; it was submitted that they are criminal in nature, and that, in any event, even if she were to engage in civil suits against her family this would likely be lengthy, costly and escalate the harassment and violence already experienced. As such, it was asserted that the applicant had established a well-founded fear of persecution and that the State would not be able to protect her from that persecution. It was contended that the applicant's testimony had not been afforded due weight given the pattern of escalating harassment, threats and physical attacks which, it was argued, showed that she was experiencing a real threat and was not receiving adequate protection.  

 

28.              By reference to country-of-origin information, it was asserted that the police services in South Africa:-

"are notorious for corruption, lack of resources and a reluctance to pursue those who perpetrate violence against women. As the lengthy COI below shows, South African police are inundated with a massive amount of crime which is not prosecuted appropriately, not for women with protection orders, victims of assault, victim of harassment or even murder victims for that matter." 

 

29.              The legal submissions appended a considerable volume of country-of-origin information. It would be fair to say most of the information provided related to general domestic violence and discrimination matters. Nevertheless, the information did contain references to discrimination against women remaining a problem in relation to the ownership of land particularly in traditional patrilineal communities.

30.              The submission concludes that, "in the interests of a proper examination of the applicant's matter we repeat our request for an oral hearing, the choice to not only refuse the applicant and to have an accelerated appeal highlights that this matter has been fundamentally misunderstood and not afforded the appropriate weight it deserves." It can be seen that although an oral hearing was sought, the reasons given did not identify any factual disputes or what could be described as classic credibility issues. Instead, it was argued that the oral hearing was needed to clarify the manner in which the accepted facts were understood or characterised.

 

31.              By email dated the 18 November 2022, the solicitor for the applicant was informed that the decision of the Tribunal had been given and a copy of the report was provided, the report was dated the 17 November 2022. 

 

THE TRIBUNAL'S DECISION

 

32.              The report outlined the basic introductory facts, and the decision made by the IPO. The report noted that the decision under appeal was one made in the context of the 2018 Order, where the applicant's country of origin was designated as a safe country. As such the appeal was considered according to s. 43 of the 2015 Act, as amended, which provides at s. 43(b):

"...the Tribunal, unless it considers it is not in the interests of justice to do so, shall make its decision in relation to the appeal without holding an oral hearing."

 

33.              The report notes that an oral appeal was sought on behalf of the applicant but there were no reasons given to support that request. The reports notes that the IPO accepted the material facts of the applicant's claim in full; however, it noted that the review before the Tribunal was a de novo appeal. The Tribunal noted that because the material facts of the applicant's claim were found to be credible and because the appellant had availed of the opportunity to make representations as to why those material facts gave rise to an entitlement to international protection, it was considered that there was no basis for finding that it would not be in the interests of justice to dispose of the appeal without holding an oral hearing and therefore the appeal was decided on the basis of the papers submitted. 

 

34.              The report then proceeds to give a detailed outline of the factual basis for the claim and notes the applicant's concern which is framed as follows:

"[2.19] The appellant is afraid that she will be killed by her in-laws if she is returned to South Africa. She fears her life is not safe in South Africa because her late husband's relatives believe she was behind the death of her late husband in order to take over his property."

 

35.              The report notes that the notice of appeal, submissions and all of the documentation and material provided have been fully considered.

 

36.              The report's assessment of the facts and circumstances summarises the material facts of the claim as follows:

·               "The appellant's late husband died in December 2019

·               The appellant's in-laws blamed her for her late husband's death and accused her of killing him to get his property.

·               A short time after the appellants late husband's death, her in-law ejected her from the home she had shared with her late husband.

·               The appellant left the property to her in-laws because of the threats they made but the property is still in her name.

·               The appellant sent the results of an autopsy report concerning her late husband to in-laws in November 2021 in an effort to prove that she had not caused his death but they rejected her proposition and threatened her.

·               The appellant's boyfriend was attacked by three of the appellants in-laws in June 2022."

 

37.              Having set out those material facts, the Tribunal found that the applicant had provided a broadly consistent and coherent account throughout the process that did not run counter to relevant country of origin information. Hence "taking everything into consideration, the Tribunal accepts that the material facts of the appellants claim have been established on the probabilities."

 

38.              The report then goes on to analyse the claims in the light of those accepted material facts. On the question of whether the applicant had experienced past persecution, the Tribunal found as follows:

"[5.2] ...the Tribunal finds that there is nothing, individually or cumulatively, that comes close to establishing past persecution of the appellant. The facts of the appellant's claim disclose that, very unfortunately, she became embroiled in an unpleasant and nasty property dispute with her in-laws after the death of her late husband. They made unpleasant allegations against her and claimed ownership of the house she had shared with her late husband. Their position was that it belonged to her late husband and, by extension, to his immediate family rather than to the appellant. The appellant was ejected from the house and she subsequently transferred the property to her in-laws. Fortunately, the appellant established a new life for herself with a new partner at a new address.  While the Tribunal acknowledges that the appellant came off the worst in a bitter property dispute with her in-laws, the Tribunal does not find that the situation qualifies as an instance of past persecution of the appellant."

 

39.              Likewise, the Tribunal considered that the insults and threats from her in-laws occurred but that they did not amount to acts of past persecution of the appellant. 

 

40.              In terms of a consideration of the question of whether there was a sufficient basis for finding that the applicant had a well-founded fear of future persecution, the Tribunal considered it significant that a substantial period of more than two years had passed between the time of the applicant's late husband's death and her departure from South Africa, and that her in-laws had never acted:-

 "in any substantive way in relation to their allegations that the appellant was behind the death of her late husband. Looked at in the round, the evidence shows that the appellant's in-laws' primary interest was in gaining possession of the house she shared with her late husband, which they took possession of soon after his death in December 2019.  While the appellant has related a second-hand account of her some of in-laws looking for her in May 2022 and an attack on her boyfriend in June 2022, looking at the case in the round, the Tribunal does not evaluate these matters as bringing the appellant's claim to a level that establishes a well-founded fear of persecution on the part of the appellant."

 

41.              For those reasons, the Tribunal decided to affirm the recommendation of the IPO concerning the application for refugee declaration.

 

42.              In analysing the grounds of subsidiary protection, the Tribunal found that, on the basis of the facts and the country of origin information in the case, the applicant would not be at real risk of serious harm. There was no issue on the question of death penalty or execution. The Tribunal found no substantial grounds to show that the applicant faced a real risk of torture or inhuman or degrading treatment or punishment in South Africa. On the question of whether there was a serious and individual threat to a civilian's life or person by reason of indiscriminate violence in a situation of international or internal armed conflict, the Tribunal considered the country-of-origin information in the case and found there was no situation in South Africa that amounted to a situation of international or internal armed conflict. Hence, the Tribunal found that the recommendation made by the IPO should be affirmed accordingly, the applicant was not entitled to subsidiary protection or a refugee declaration.

 

THE PROCEEDINGS

 

43.              The applicant filed judicial review papers in the Central Office on the 12 December 2022, which were then opened before the High Court on the 13 December 2022. The High Court granted leave to apply for judicial review on the 23 January 2023, and leave to file an amended statement of grounds was granted by the High Court on the 23 February 2024. 

 

 

 

44.              As set out in the amended statement of grounds, the following relief is sought by the applicant:

"(i)       An order of certiorari quashing the decision of the Respondent, pursuant to section 46(3)(a) of the International Protection Act 2015, dated 17th November 2022, affirming the recommendation of the International Protection Office that the Applicant should be refused a declaration as a refugee and refused subsidiary protection.

(ii)        An order of certiorari quashing the decisions of the Respondent, pursuant to section 43 of the International Protection Act 2015 not to conduct an oral hearing in this said appeal.

(iii)       A declaration that s.43(b) of the International Protection Act 2015 is unconstitutional insofar as it operates to deprive the applicant of an oral hearing or any oral or other enquiry as regards core aspects of her claim. 

(iv)       A declaration pursuant to s.5 of the European Convention on Human Rights Act 2003 that s.43(b) of the International Protection Act 2015 is incompatible with the Convention insofar as it operates to deprive the applicant of an oral hearing or any oral or other enquiry as regards core aspects of her claim."

 

45.              As there was some dispute as to the scope of the issues that the applicant had been granted leave to pursue it is necessary to set out the precise grounds that were contained in the statement of grounds:

"1.       The respondent erred in law and breached fair procedures in finding that the Applicant had not established a well-founded fear of persecution, which said finding unlawfully reversed the first instance decision of the IPO that 'the applicant would face a reasonable chance of persecution if returned to her country of origin.'  This positive finding by the IPO was not appealed by the applicant, nor was the applicant put on notice, in writing or otherwise, that the Tribunal was revisiting this finding or overturning it in a paper-based appeal held without an oral hearing.

2.         The respondent failed to consider the Applicant's submissions and/or materials and country information available to the effect that the policing authorities in South Africa did not assist her and that State protection was not available.

3.         The respondent erred in failing to conduct an oral hearing and in deeming section 43(b) to be satisfied and applicable.  Insofar as the findings of the IPO favourable to the applicant could be overturned or rejected without matters been put to the Applicant, the decision that an oral hearing was not required in the interests of justice was irrational, unfair and unlawful.

4.         The respondent in error of law made findings which were unreasonable or irrational. Inter alia, at para. [5.4] of the impugned decision the Respondent concluded that 'her in-laws never acted in any substantive way in relation to their allegations that the appellant was behind the death of her late husband.  Looked at in the round, the evidence shows that the appellant's in-laws' primary interest was in gaining possession of the house she shared with her late husband...'

This finding contradicts the account provided by the Applicant. The Applicant's creditability and account were accepted by the IPO and the Respondent, to the effect that the family seized the property which had been the Applicant's home with her deceased husband, that the Applicant then fled and relocated but that the family continued their targeting of the Applicant and her new partner by inter alia calling and messaging her death threats and other adverse actions.

5.         The respondent erred in law in their assessment of 'persecution' within the meaning of section 7 and section 8 of the International Protection Act 2015 and in their finding that the applicant was not victim of persecution in South Africa. 

6.         The Respondent failed to assess whether the treatment experienced by the Applicant, or, the treatment feared by the Applicant on return amounts to 'serious harm' within the meaning of the International Protection Act 2015 and as such fails to assess the applicant's entitlement to Subsidiary Protection.

7.         The Applicant's right to a fair hearing and an effective remedy under Article 40.3 of the Constitution and/or Articles 3, and 6 and 13 of the ECHR, were breached in circumstances where the Tribunal departed from her accepted account without putting same to her, failed to consider material aspects of her claim and where a decision was made on her case without her ever having met face to face with the decision maker.  Insofar as the statutory scheme permits of same, it is unlawful."

 

46.              An initial statement of opposition was delivered on behalf of the first named respondent on the 4 September 2023. In the statement of opposition, without prejudice to the respondent's claim that the applicant was estopped from seeking declarations regarding the constitutionality or compliance with the European Convention on Human Rights, the respondent pleaded that s. 43(b) of the 2015 Act mandates that the respondent shall make its decision in relation to the appeal without holding an oral hearing. Furthermore, it is asserted that it is well established that the requirements of fair procedures do not mandate an oral hearing, and an oral hearing may be held where the respondent considers it in the interests of justice to do so. 

 

47.              The respondent argued that the applicant was incorrect in characterising the decision of the Tribunal as one that reversed the decision of the IPO. The respondent asserted that every appeal is a full de novo appeal in which an independent determination must be reached. As such the nature of any appeal carries with it the possibility of a similar or differing conclusion being reached by the decision maker on any matter arising in the first instance decision.

 

48.              The respondent noted that the Republic of South Africa was a designated safe country of origin in accordance with the 2018 Order, and the Tribunal was mandated to conduct her appeal hearing without an oral hearing in accordance with s. 43(b) of the 2015 Act unless it considered it in the interests of justice not to do so. The respondent highlighted that the appellant did not adduce any evidential basis and/or reasons to establish that it was in the interests of justice to do so. The respondent claimed that the applicant's experiences were considered in their totality by the respondent, and the respondent was entitled to make the finding on all the evidence that the applicant had not established a well-founded fear of persecution or a risk of serious harm if returned to her country of origin. The respondent claimed that the decisions made were rational and that there was no want of fair procedures in the context of the appeal decision.

 

49.              Following the amendment of the statement of grounds by the applicant, the second, third and fourth named respondents provided a further statement of opposition dated the 4 April 2024. In that document, the additional respondents essentially reiterate the points of opposition made by the first named respondent in the original statement of opposition.

RELEVANT PRINCIPLES

 

50.              Before analysing the particular arguments made in these proceedings it is possible to identify a number of general matters that emerge from the caselaw and which are applicable, and will be applied, to the various matters argued by the applicant. These include first the relevant statutory scheme, and second the procedural safeguards that attend on the operation of that scheme.

 

51.              First, it is important to rehearse briefly the statutory context for this challenge. The applicant, as was her entitlement, sought international protection in this State, and that process is the subject of a detailed statutory scheme, which in turn implements and falls to be understood by reference to international instruments, including the Qualification Directive.

 

52.              As is well known, the core element in a claim for refugee status is establishing, in this case, that the applicant is a person who is unwilling to return to her country of origin due to a well-founded fear of persecution for reason of her membership of a particular social group and who is unable or unwilling to avail herself of the protection of that country of origin.

 

53.              What constitutes persecution is described in section 7 of the 2015 Act. For the purposes of this case, this includes "acts of physical or mental violence". Those acts must be sufficiently serious by their nature or repetition to constitute "a severe violation of basic human rights". In addition, there needs to be a connection between those acts and identified reasons for the acts of persecution. One of those is membership of a particular social group, which can include a group that has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. While there are elements to the test, the first issue is whether the acts complained of, if they are accepted as having occurred, are sufficiently serious to warrant being treated as persecution.

 

54.              By section 30 of the 2015 Act, the actors of persecution or serious harm include a state, parties or organisations controlling a state or a substantial part of a state, or "non-state actors". However, "non-state actors" can only be treated as actors of persecution where "it can be demonstrated that [the state or organisations controlling part of the state] are unable or unwilling to provide protection against persecution or serious harm".

 

55.              The applicant also sought subsidiary protection, which requires an applicant to show that they are a person in respect of whom substantial grounds have been shown for believing that, if returned to her country of origin, she would "face a real risk of suffering serious harm" and that she was unable to avail herself of the protection of that country. In the relevant definitions, "serious harm" includes death penalty or execution, torture or inhuman or degrading treatment or punishment, or serious or individual threats to a civilian's life or person "by reason of indiscriminate violence in a situation of international or internal armed conflict".

 

56.              In N.G. v. IPAT & Ors [2023] IEHC 535, Phelan J., in the context of a claim for subsidiary protection, considered X.S. v. IPAT [2022] IEHC 100 and T.A. v. IPAT & Ors [2023] IEHC 390, and, at para. 19, noted that:

"The fact that an applicant demonstrates a justified apprehension of a risk of treatment which would constitute serious harm were it to occur does not alone establish an entitlement to international protection. It is also necessary to demonstrate that there is no effective State protection in respect of the said apprehended serious harm before an entitlement to protection is triggered."

 

57.              Phelan J. went on to note that the question of State protection only becomes a relevant consideration where a threshold risk of harm (be it persecution or serious harm) capable of triggering an entitlement to protection is found to exist.

 

58.              Where the Minister for Justice has exercised the power under section 72 of the 2015 Act to designate the country of origin as safe, this triggers the analysis required by section 33 of the 2015 Act:

"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."

 

59.               Second, there are many authorities which consistently reiterate the overall approach that should be adopted by a court where there is a challenge by way of judicial review to a decision made by a body such as the IPAT. For instance, in E.D. (a minor suing by his father and next friend) v. The Refugee Appeals Tribunal, Minister for Justice, Equality and Law Reform [2016] IESC 77, the Supreme Court, at para. 6.1 noted (and I have underlined portions from the quote that bear emphasis):-

"6.1      At the outset it must be recalled that the High Court was concerned with a judicial review of the decision of the R.A.T. rather than an appeal from a decision of that body. It follows that the scope of review which is permissible is limited to identifying errors which, in accordance with the relevant jurisprudence, are sufficient to render the administrative decision under review unlawful. There are, in accordance with that jurisprudence, a range of bases on which the High Court, exercising its judicial review role, might come to such a conclusion. In the particular context of this case two such bases are potentially relevant. First, it might be said that, having regard to the findings of fact of the R.A.T., the conclusion that, as a matter of law, a claim based on fear of persecution had not been made out, was not sustainable. In such a circumstance the High Court does not require to go behind the findings of fact of the relevant administrative body but rather considers whether, accepting those findings of fact, the conclusion reached was legally correct.

 

6.2       The second basis on which the High Court might come to a conclusion of unlawfulness could involve the Court considering that some of the conclusions of fact of the relevant administrative body were not sustainable on the evidence before that body in accordance with general judicial review principles. It is important to recall that the function of a court in judicial review proceedings of this type is to determine whether the decision sought to be challenged was lawful. If the decision is found to have been lawful then the challenge must, of course, be dismissed. If the decision is found to be unlawful, it will normally follow that the decision must be quashed unless there are very particular circumstances which, in accordance with the established jurisprudence, would entitle the Court not to take that course of action.

 

6.3       So far as the facts are concerned a court's function is to determine whether the facts, as found by the administrative body, can be sustained on judicial review principles. It is not normally the function of a court to make its own findings of fact except, for example, where there are disputes on the facts as to what actually occurred in the process before the administrative body concerned. On the other hand part of the reasoning of a court can, in an appropriate case, be to the effect that, on the materials before the decision-maker, only one decision in respect of a particular fact would have been lawfully open to the decision-maker concerned. In such a case any other view of the facts will necessarily be 'irrational' in the sense in which that term has come to be used in judicial review. Where such a conclusion might lead in the context of a particular judicial review challenge will, of course, depend on all the circumstances of the case in question."


 

60.              Third, and moving to the fair procedures issues, it is now clear that, absent a good reason to suggest that this is not the case, a statement by a decision maker that they have considered all the material before them should be accepted. In Rana and Ali v. Minister for Justice [2024] IESC 46, the Supreme Court confirmed that the decision in G.K. v. Minister for Justice [2002] 2 IR 418 remained good law, and the court clarified the proper approach to be adopted to the judgment in Balz v. An Bord Pleanála [2019] IESC 90. O'Malley J. explained the proposition as follows:-

"92.      The decision of this Court in G.K. makes it clear that a statement by a decision-maker that they have considered all the material put before them is sufficient, without further affidavit evidence, unless there is some evidence-based reason to think that they did not. I do not see Balz as affecting this principle. The Inspector in Balz did not claim to have considered the scientific material before him - on the contrary, he stated that it was not a relevant consideration. The Board's general statement to the effect that it had considered what it should have considered, and had not considered matters that it should not, was hardly apt to cover a situation where the particular material had been seen by the Inspector as something that should not be taken into account. The appellant is, therefore, correct in saying that Balz is an example of the G.K. principle and not a reversal or variation of it.

 

93.       I would therefore hold that it is not, in general, necessary to support a statement that all material has been considered with further evidence to prove the veracity of the statement. Such a statement differs materially from the statement condemned in Balz. This does not, of course, exclude the possibility of cases where a particular feature demonstrates that the statement is unlikely to be completely correct. The point is that decision-makers in this form of process are not required to list out everything that has been put before them and address each aspect individually."

 

61.              Fourth, there is well settled authority concerning the circumstances in which the right to an oral hearing may be engaged in the context of a process such as that under consideration in this case. Two aspects of the caselaw bear emphasis.

 

62.              The first aspect concerns the particular circumstances where a party is requested in advance to identify why an oral hearing may be sought in the context of s. 43(b) of the 2015 Act. In F.P. v. IPAT [2022] IEHC 535, Ferriter J. noted that the process of determining whether an oral hearing is required does not involve the applicant as a passive participant. The court found at para. 31 that the onus was on an applicant to prosecute his or her appeal.

 

63.              The second aspect relates to the more general issue of when an oral hearing may be required; this was the subject of a comprehensive review by Phelan J. in T.B. v. IPAT and the Minister for Justice [2022] IEHC 275. That case concerned a judicial review of a decision made by IPAT upholding a decision by the IPO to refuse refugee and subsidiary protection status to an applicant who was from Georgia. Part of the claim made on behalf of the applicant was that she had a well-founded fear of persecution in Georgia at the hands of her former partner due to her membership of a particular social group, comprising women at risk of domestic violence.

 

64.              A particular feature of that case was that, at almost every stage in the application process, concerns had been raised by both the IPO and IPAT about the credibility of the applicant's assertions regarding certain material facts. In addition, part of the factual matrix was a finding pursuant to s. 39(4)(e) of the 2015 Act to the effect that Georgia was a safe country and, as such, accelerated appeal procedures provided for in s. 43 of the 2015 Act applied. The applicant had sought or requested an oral hearing as part of her notice of appeal. However, the basis for the request for the oral hearing were not factors related to or specific to the applicant's case or the findings as part of the earlier process but, instead, on "statistical indicators of greater success rates following oral hearings compiled in respect of paper based procedures under the provisions of the Refugee Act, 1996". It appears that that request was treated as something of a generic request by the Tribunal. However, in a later submission to the Tribunal, the applicant specifically referred to the adverse credibility findings which had been made by the IPO and it was asserted that, in that light, an oral hearing was necessary. The Tribunal provided its decision, and part of the decision provided to the applicant was a refusal of the request for an oral hearing.

 

65.              Phelan J. found that having regard to the language used in s.43 of the 2015 Act - which contrasted with the predecessor provisions in the Refugee Act 1996, as amended:-

"52....There is no automatic statutory entitlement to an oral hearing but a discretion which falls to be exercised within the parameters of s. 43(b) and in accordance with the requirements of constitutional justice."

 

66.              The court went on to consider the operation of the provisions of s. 43(b) of the 2015 Act in the context of the established jurisprudence and particularly the case of M.M. v. Minister for Justice and Equality [2018] IESC 10 and Case C-277/11 and the manner in which that case was described again by the Supreme Court in V.J. v. Minister for Justice and Equality [2019] IESC 75. Significantly in V.J., the Supreme Court highlighted that there is unlikely to be a need for an oral hearing where the decision depended on the treatment of country of origin information. Thus, O'Donnell J. stated:-

"The decision in M.M. makes it clear that what is required is that an applicant must have an opportunity of making his or her case. Whether an interview or oral hearing is required depends on the nature of the case made, not whether the particular point was raised in the asylum process. The type of contention made here was one which by definition was something about which the applicants could have little if any personal knowledge, nor was that suggested in their applications. It was an issue particularly suited to determination by reference to the materials relating to country of origin information, since the case made was that the applicants would suffer on return as failed asylum-seekers. That depended on a status they shared with many others, rather than any individual characteristic. That feature of the case did not, therefore, require an interview, still less an oral hearing..."  [emphasis added]

 

67.              Phelan J. in T.B. went on to note that a number of decisions considered the question of where credibility decisions trigger a need or potential need for an oral hearing. The court considered S.K. v. The International Protection Appeals Tribunal [2021] IEHC 781, and the decision of Cooke J. in S.U.N. v. The Refugee Applications Commissioner & ors [2013] 2 IR 555. In S.K., Ferriter J. had considered the approach outlined by Cooke J. in S.U.N. and the analysis of the Supreme Court in M.M. and went on to identify the types of credibility issues in which the exercise of a discretion under s. 43(b) of the 2015 Act to hold an oral hearing may be engaged, and noted, at para. 27:-

"where the issue of personal credibility is fundamental to the appeal and where the credibility of the applicant's account of the events and facts subtending his or her case is in issue in the classic sense i.e. where the events and facts are of a kind "that could have taken place (as opposed to matters which are demonstrated to be impossible or contradicted by independent evidence), but have been rejected purely because the applicant has been disbelieved when recounting them" (Cooke J. in SUN at paragraph 40), the interests of justice are likely to merit an oral appeal."

 

68.              Ultimately, the court in T.B. found that the credibility findings which underpinned the IPO's decision were findings as to the personal credibility of the applicant in respect of matters of a kind that could have taken place but were rejected purely because the applicant had been disbelieved when recounting them. Accordingly, they were classically of the type that would warrant a hearing. The court found that there was no engagement in the decision on the request for an oral hearing with the actual case made in favour of an oral hearing, and the reasoning advanced by the Tribunal was unclear. In the premises, the court found that the Tribunal had not properly considered whether an oral hearing was necessary in view of the credibility issues. Because the Tribunal decision did not address the issue in its decision to proceed without an oral hearing, the decision was not adequately reasoned and failed to demonstrate that the Tribunal asked itself the correct question of law when deciding that an oral hearing was not required in the interests of justice.

 

DISCUSSION OF THE ISSUES RAISED

 

69.              The applicant's written legal submissions make clear that the arguments regarding the compatibility of s. 43(b) of the 2015 Act with the Constitution and/or the European Convention on Human Rights were not being pursued, but instead the question was whether the applicant's right to a fair hearing and an effective remedy were breached. The written legal submissions with regard to the fair procedures argument were premised on the contention that the first instance decision was that the applicant would face a reasonable chance of persecution, and that had been reversed by IPAT. 

 

70.              In their submissions, the respondents adopted an overarching position that to some extent the applicant premised her case on a contention that the Tribunal refused the appeal on different grounds then those reached by the IPO. In that regard, they contended that the Tribunal provides a full de novo hearing and there can be no suggestion that findings made at first instance are "banked".

 

71.              The second overall point made by the respondents, which emerges from a consideration of their written legal submissions, was a concern that the applicant had sought to impermissibly reframe some of the legal issues in respect of which leave to apply for judicial review had been granted.

 

72.              Having considered the broad issues that arise I will turn to the specific grounds on which the applicant was granted leave.

 

Ground E(1)

73.              The applicant argued that if "past persecution" was accepted, that triggered s. 28(6) of the 2015 Act, which provides:

"The fact that an applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such serious harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated."

 

74.              The point made here was that the IPO had found past persecution had occurred, but the Tribunal reached a different view. The applicant submitted that, because past persecution was explicitly accepted by the IPO, her submissions and notice of appeal did not address - and it was said, did not need to address - whether the past treatment encountered amounted to "persecution" as defined in the 2015 Act. The applicant contends that the issue of past persecution and the issue of a well-founded fear being, on the one hand, based on an assessment of past events, and, on the other, based on the applicant's subjective views considered in the light of country-of-origin information and other matters, were two separate and distinct issues. Essentially, the applicant argues that in the event that the Tribunal considered it was going to reverse a finding made by the IPO, the applicant ought to have been put on notice of this and had an opportunity to address the matter.

 

75.              The respondents argue that the applicant has effectively sought to reframe the legal ground, and that the applicant had sought to base her argument not only on the fear of persecution finding but also on the finding made by the Tribunal that the applicant had not suffered past persecution. The respondent suggests that this was done deliberately in order to allow the applicant to accommodate herself within the provisions of s. 28(6) of the 2015 Act. The respondents accordingly argue that the written submissions by the applicant on ground E(1) is misconceived. There was no finding of past persecution by the IPO, no claim made on appeal to the Tribunal that there had been a failure to apply to s. 28(6) of the 2015 Act and therefore no adverse finding in relation to same made by the Tribunal that could now be subjected to judicial review.

Discussion

76.              It is necessary to disentangle certain elements in the arguments made by the applicant. First, even if the initial IPO decision identified past persecution - and the IPO decision was not entirely clear - there is no authority for the proposition that this in any sense binds the Tribunal. As noted by the respondents and accepted by the applicant, findings made by the IPO cannot be treated as in any sense incapable of being overturned, varied or nuanced by the Tribunal. The hearing before the Tribunal is a de novo hearing. This cuts both ways for applicants: it affords an opportunity to have negative findings revisited, but it also means that positive findings may similarly be revisited. Hence there is nothing untoward, per se, in the Tribunal reaching a different view to the IPO. As such a central premise for ground E(1) - that the Tribunal unlawfully reversed the first instance decision - is wrong. There was nothing unlawful, in and of itself, for the Tribunal to reach a different finding to the IPO.

 

77.              Second, the type of fair procedures arguments agitated by the applicant only bite where, in a papers-only appeal, the manner in which the Tribunal approached issues had the effect of depriving the applicant of a fair opportunity to make their case. In that sense the inquiry before the court is acutely fact sensitive. In this case, the Tribunal, like the IPO, accepted the material facts relied upon by the applicant. There were no factual disputes or credibility issues that triggered a requirement to consider whether there was a need to permit the applicant to comment - whether by an oral hearing or otherwise. Instead, the issue was how the Tribunal would appraise those undisputed facts in the context of the country of origin information. I consider that the fair procedures arguments regarding the need for matters to be put to the applicant prior to any decision by the Tribunal are incorrect. The court is satisfied that the matters in issue dealt with by the Tribunal under this heading clearly fall into the category of finding that the Supreme Court in the part of the V.J. judgment quoted above made clear will not trigger a need for an oral hearing or opportunity for further response or comment.

 

78.               Accordingly the court is not persuaded that the applicant can succeed on ground E(1).

 

Ground E(2)

79.              In relation to the claim that the Tribunal failed to consider submissions and country of origin information, the applicant started from the premise that it was not sufficient simply for the Tribunal to list the documentation and arguments that it considered. It was required to show that it had engaged actively with the arguments being made. The applicant argued that the country-of-origin information before the Tribunal established or at least supported an account of failure on the part of the South African State to provide effective protection to women in fear of gender-based violence. The applicant also highlighted that in the particular circumstances of her case she encountered further threats in South Africa after seeking State protection. It was argued that the first respondent failed to conduct a rational analysis of the country-of-origin information and providing reasons for its conclusions. 

 

80.              Without prejudice to their argument in relation to ground E(1), the respondents made the fundamental point that an appeal to the Tribunal is de novo and the Tribunal was not bound by findings made by the IPO. The respondent disagrees with the applicant's characterisation of the IPO decision in any event and argues that when the decision is read in its totality it is clear that the IPO found that the accepted facts did not give rise to a well-founded fear of persecution. Hence, ultimately at the IPO stage there was no finding that there was a real risk of persecution if the applicant was returned to her country of origin and there was no finding that she would face a real risk of suffering serious harm. Those findings were not reversed on appeal. Hence while the Tribunal expressed its decision somewhat differently from that of the IPO, the issues which arose had been addressed in the applicants' written submissions and were analysed properly by the Tribunal.

 

81.              The respondent noted that in GK v Minister of Justice [2002] 2 IR 418 the Supreme had court held:

"That a person claiming that a decision making authority had, contrary to its express statement, ignored representations which it had received needed to produce some evidence, either direct or inferential, of that proposition before he could be said to have an arguable case."

 

82.              The respondent noted that the Tribunal expressly stated that the notice of appeal, submissions and all of the documentation and material provided had been fully considered.   The respondent notes that in Rana and Ali v Minister for Justice [2024] IESC 46, a similar argument was made by the applicant, but this was rejected by the Supreme Court who held that GK remained good law.

 

83.              Ultimately under this heading the respondents argue that the Tribunal had regard to the particular facts of the case and concluded, and was entitled to do so, that the actions of the applicant's in-laws were in the context of a bitter property dispute. Hence rather than rejecting the applicants' arguments in relation to her position as a widow in South Africa, the Tribunal analysed the facts and found her experiences did not reach the threshold of an objectively well-founded fear of persecution. 

 

 

Discussion

84.              I am satisfied that the applicant cannot succeed on ground E(2). As noted above, in Rana and Ali v Minister for Justice, the Supreme Court was very clear that where, as occurred here in the Tribunal report, there is a statement that the decision maker considered all the materials this ordinarily should be accepted as an adequate account of what actually occurred. In the premises I consider that the applicant has not established a basis for arguing that the country of origin information was not considered by the Tribunal. Moreover, as noted above, the question of whether South Africa provides adequate protection for widows who face threats from their former in-laws only bites where the applicant establishes that the factual matters of which she complained and the nature of her concerns about future risk reached the threshold risk of harm and could be categorised as persecution or serious harm. Here the Tribunal had determined, for reasons that it explained, that the relevant threshold had not been reached.

 

Ground E(3)

85.              With regard to whether the Tribunal should have conducted an oral hearing, the applicant stated that she had requested an oral hearing. It was argued that because the Tribunal intended to reach a conclusion in an apparent contradiction of the IPO findings the interests of justice required an oral hearing. The applicant placed particular reliance on two passages in BW v Refugee Appeals Tribunal [2017] IECA 296. The first passage states as follow:

"42. These are questions the answers to which are to some extent fact-dependent, and each case will need to be considered on its own facts. But it can be stated as a general principle that where an issue of concern emerges for the first time on a papers-only appeal in relation to a matter which the appellant has not already had a fair opportunity to address, either because it was not put to her at interview, or because perhaps it may have arisen for whatever reason only after the ORAC process had ended, and that concern is in relation to something which is material to the basis on which asylum is being sought, and therefore to the decision whether or not she be granted a declaration of refugee status, she is as a matter of fair procedures entitled to an opportunity to address it. Whether that opportunity requires some form of oral hearing in relation to the concern, or whether it can be dealt with fairly and adequately in writing will depend on the particular facts. It will be a matter to be considered by the Tribunal member in any individual case. But the principle is the same. If the concern is a material concern - one that has the capacity to affect the outcome of the appeal - then the appellant is entitled to a fair opportunity to address the concern where that opportunity has not already been provided."

 

86.              The second passage from BW relied upon by the applicant was in support of her argument that even if she was not entitled to an oral hearing, she was entitled to avail of some mechanism to input her view on the new issues arising. In that regard the applicant relied on the following passage from BW:

"49. These passages underscore the importance, as a matter of fair procedures, attaching to the requirement that where some matter is giving rise to a concern as to credibility on the part of the decision-maker, the applicant must be given a fair opportunity of addressing that concern before any adverse finding of credibility is made against her. That obligation is fulfilled where the particular issue(s) is raised at first instance during the ORAC process. In that case, it is unnecessary that she be provided with another opportunity during a papers-only appeal process to again address the same issue of concern as to credibility, though the applicant is surely to be permitted should she wish to do so, to submit any further material relevant to the concern."

 

87.              The respondents argue that the authorities relied upon by the applicant, and in particular BW v Refugee Appeals Tribunal [2017] IECA 296, were concerned with paper only appeals where adverse credibility findings were made. In the current case neither the IPO nor the Tribunal contradicted or doubted the factual account provided by the applicant. Accordingly, as far as the respondent was concerned there is no question of the rules governing natural justice requiring an applicant to be given an opportunity to comment on the decision makers reasoning. 

 

88.              The respondents point to the fact that a number of decisions contradict the underlying legal premise of the applicant with regard to the application of fair procedures. Hence in SHI v IPAT No. 2 [2019] IEHC 269, the High Court rejected a claim that the IPAT had acted in breach of fair procedures by making adverse findings about the applicant's credibility in the course of a papers only appeal when no such finding had been made at first instance. 

 

89.              In addition, in JH (Albania) v IPAT [2018] IEHC 752, the applicant had initially been refused subsidiary protection by the IPO on the basis that although his account was credible internal relocation was available. The IPAT decision was that the application was not found to be credible. In relation to the question as to whether that new decision on credibility triggered a need for a further oral hearing the High Court found:

"10.  Under this heading the applicant complains of an alleged failure to consider the recommendation being appealed before reaching a decision on the appeal (that is, to take into account the recommendation of the IPO). The tribunal member held that he was not bound by the findings at first instance because this was a de novo appeal. Unfortunately for the applicant, that is an inherent feature of the system. If one gets a negative decision which includes some positive features, and if one then appeals by way of rehearing, everything is up for discussion on the appeal, including the possibility of reversal of the positive elements...

11.  Anyway, the complaint as pleaded is groundless. The tribunal was clearly well aware of the IPO decision. A lack of narrative discussion is not the same as a lack of consideration. The applicant, according to Mr. O'Dwyer, approached the appeal on the basis that he was credible. That an applicant failed to anticipate the possibility of adverse findings is not a basis for relief by way of judicial review.

12. M.A.R.A. v. Minister for Justice and Equality [2015] 1 I.R. 561 allows for the possibility that certain findings would not be the subject of an appeal; but that means adverse findings. It is not open to an applicant to ring-fence favourable findings from being reviewed on appeal if other, adverse, findings are appealed. A consideration by the tribunal of the latter may necessitate reconsideration of the former, particularly if the applicant's credibility comes under challenge; which is what happened here."

 

Discussion

90.              In large part this ground mirrors the E(1) ground and cannot succeed for much the same reasons. As noted by Ferriter J in F.P. cited above, the applicant is not a passive participant in the appeal process. The applicant did not set out any reasons at all for her request for an oral hearing in her notice of appeal, and the reasons set out in the written submissions amounted to very little other than an assertion that the issues were weighty. In that regard, the court assumes that every applicant seeking international protection considers that their case is weighty. The Oireachtas has given the Tribunal responsibility to decide whether the interests of justice warrant holding an oral hearing. In this case it is clear that the Tribunal made a decision for reasons that were within the scope of reasonable decisions that could have been made.

 

91.              Moreover, the consequence of the designation of a state as a safe country of origin means that an applicant is required to make their case for protection in an individualised way. In this case the applicant was afforded an opportunity - through the questionnaire, at interview, and by submissions to the Tribunal - (a) to seek to establish the material facts that she relied upon, and (b) by reference to her particular position and the relevant country of origin information to establish why South Africa should not be treated as a safe country in her situation.

 

92.              In addition, as set out above, the circumstances identified in the caselaw that might trigger an entitlement to an oral hearing or some further opportunity to comment are not present in this case.

 

Ground E(4)

93.              In respect of ground E(4) - which impugns the reasonableness or rationality of the findings made by the Tribunal - the applicant focuses on para. 5.4 of the impugned decision which stated:

"...Her in-laws never acted in any substantive way in relation to their allegations that the appellant was behind the death of her late husband. Looked at in the round, the evidence shows that the appellant's in-laws' primary interest was in gaining possession of the house she shared with her late husband..."

94.              The applicant highlights that passage in the context of an apparent finding by the Tribunal that the family seized the property but then continued to target the applicant after she had left her initial location in South Africa and then after she had travelled to Ireland. The applicant contends that the findings at para. 5.4 of the impugned decision are inconsistent with and contradict the factual findings that appear to have been accepted by IPAT and thus were unreasonable or irrational. In this regard the applicant referred to a passage in a decision of Burns J. in NL v IPAT [2021] IEHC 430 where the court held:

"It is clear from the foregoing analysis that the Court is of the view that the First Respondent failed to properly understand the case that was being made by the Applicant and the nature of the evidence before it with respect to the hit and run incident. It also omitted to consider relevant matters when considering whether the Applicant was in fear of the K family resulting in a negative credibility finding against the Applicant which may have had an effect in terms of the application of the benefit of the doubt being afforded to the Applicant. With respect to its analysis of future risk, it failed to adopt facts accepted to be established on the balance of probabilities into its considerations in relation to whether a reasonable likelihood of persecution existed. Accordingly, the process of the First Respondent's decision making was seriously flawed."

 

95.              The respondents contend that it is apparent from paras. 5.2 to 5.4 of the decision that all the elements advanced by the applicant were considered. The Tribunal was well aware of the fact that the house had been seized; it was aware that the applicant had relocated; and it was aware of the threats and insults, and the attack on the applicant's boyfriend in 2022. In that light, the noting by the Tribunal that over two years between the husband's death and the applicants departure from South Africa the in-laws never acted in a substantive way in relation to the allegations that the applicant was behind her husband's death did not mean the Tribunal did not understand what had happened in the past, it was simply a case that the Tribunal member considered that those facts when properly considered did not reach the threshold of well-founded fear of persecution. The respondent emphasised that the Tribunal had not in any sense overlooked the applicant's account or misunderstood it in the sense that occurred in NL v IPAT,  but found that because for over two years the applicant had not come to any physical harm and in the context of a case where death threats had apparently been made this was the issue of substance. 

 

Discussion

96.              I am satisfied that the decision of the Tribunal was not irrational in the Meadows sense. The Tribunal - and not the courts - is tasked by the Oireachtas with decision making in this area. I am satisfied that, when read in its entirety, the report of the Tribunal makes clear that the Tribunal understood the issues that had to be addressed and that those issues were addressed. I do not consider that there is a contradiction of the type that would lead to any need to quash the decision here. The respondent is correct that properly understood the Tribunal reached a view that even if there had been threats after the applicant's in-laws took her house these did not amount to substantive matters.

 

97.              In this case, the applicant explained she had experienced what undoubtedly was troubling and serious harassment from her late husband's family. However, I consider that it is clear from its report that the Tribunal had assessed the relevant facts and reached a view that the past events and apprehended events did not reach the threshold of persecution. The point, as I understand the impugned decision, was not the sequencing of events but rather that their cumulative effect was that what had been experienced did not reach the level of persecution.

 

98.              While it is of course possible that a different decision maker may have attached greater weight to the characterisation of the facts as found, this does not mean that the Tribunal in this case acted unlawfully. The existence of some scope for a variety of outcomes in a process cannot mean that a particular outcome within those bounds is unlawful. I am satisfied that the decision in this case was one reasonably available to the decision maker on the basis of the facts as found.

 

Ground E(5)

99.              Ground E(5) asserts that the respondent erred in law in the assessment of "persecution", within the meaning of sections 7 and 8 of the 2015 Act and in finding that the applicant was not a victim of persecution. 

 

100.          In that regard s. 7 of the 2015 Act provides as follows:

"(1) For the purposes of this Act, acts of persecution must be -

(a)          sufficiently serious by their nature or repetition to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, or

(b)          an accumulation of various measures, including violations of human rights, which is sufficiently severe as to affect an individual in a similar manner as mentioned in paragraph (a).

(2) The following are examples of acts which may amount to acts of persecution for the purposes of subsection (1):

(a)          acts of physical or mental violence, including acts of sexual violence;

(b)          legal, administrative, police or judicial measures, or a combination of these measures, that are in themselves discriminatory or are implemented in a discriminatory manner;

(c)          prosecution or punishment that is disproportionate or discriminatory;

(d)          denial of judicial redress resulting in a disproportionate or discriminatory punishment;

(e)          prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts of a kind referred to in section 10 (2);

(f)            acts of a gender-specific or child-specific nature.

(3) For the purpose of the definition of "refugee" in section 2 , there must be a connection between the reasons for persecution and the acts of persecution or the absence of protection."

 

101.          Section 8, in its relevant parts, provides:

"8. (1) An international protection officer or the Tribunal, as the case may be, shall take the following into account when assessing the reasons for persecution:

(a)          ... ;

(b)          ... ;

(c)          ... ;

(d)          a group shall be considered to form a particular social group where in particular -

(i)            members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, or

(ii)         that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society,

         ..."

 

102.          With regard to those definitions, the applicant states that it was accepted that she had received threats, and she had set out a fear of actual physical violence having received those threats. The applicant states that she was targeted as a widow by her in-laws and this ought to be classified as gender-based violence on the basis of the country of origin information cited in the decision. The nature of the threats faced by the applicant, in her submission, are sufficiently serious to reach the point that she expressed the view that her in-laws would kill her.

 

103.          The applicant accepts that s. 7(3) of the 2015 Act requires a connection between the acts feared and the reasons for persecution. In that regard, the applicant contended that she was a member of a particular social group, being a widow and furthermore that the police did not and could not provide adequate protection for her. 

104.          The respondent asserted that this ground in effect amounts to a contention by the applicant that no different analysis or interpretation of the facts having carried out the relevant assessment was open to the Tribunal other than to find that they amounted to persecution. The respondent argues to the contrary that it was open to the Tribunal in assessing the facts and circumstances and analysing whether these amounted to sufficiently serious actions to constitute persecution and to come to the view that they did not. It was for the Tribunal to assess whether the facts and circumstances amounted to acts of persecution that are sufficiently serious to constitute severe violation of basic human rights.

 

Discussion

105.          It bears reiterating that the task of this court is not to decide if it was possible to characterise the facts as found by the Tribunal as amounting to persecution; instead the task is to decide if there was a sufficient basis before the Tribunal to find that the threshold of risk had not been reached. Here there is no evidence that the Tribunal misunderstood either the overall task or the meaning of the term "persecution". What occurred is that the Tribunal in effect decided that the events described were not sufficient to be captured by the statutory term "acts of persecution". As the decision and its treatment of the facts were quite clear, and where the statutory terms are well understood, I do not consider that there was any obligation on the Tribunal in this case expressly to recite or refer to sections 7 or 8 of the 2015 Act. It was clearly implicit in the decision that the Tribunal had concluded that the facts as found were not sufficiently serious by their nature to constitute a severe violation of basic human rights. In this regard, I consider that the respondents correctly were concerned that in reality the applicant simply disagreed with the findings made by the Tribunal and in effect was requesting the court to substitute its views for that of the Tribunal. 

 

Ground E(6)

106.          With regard to ground E(6), which concerned the subsidiary protection decision, the applicant asserted that the Tribunal applied a test to the effect that the treatment amounting to torture should be equivalent to the treatment amounting to persecution when that is not the case. In circumstances where it was accepted that the applicant did experience events as described, the applicant states that the Tribunal ought to have assessed whether that amounted to serious harm and/or torture or inhuman or degrading treatment and to provide reasons for the conclusions reached.

 

107.          The respondent took issue with the applicant's assertion that there was a lack of clarity as to whether or not the Tribunal found the applicant was at risk of "serious harm" as that term is used in respect of applicants for subsidiary protection. The respondent argued that the finding of the Tribunal in that regard was very clear. In a similar way to the rationality argument on the issue of persecution, the respondent contended that properly understood this was an example of an applicant disagreeing with the findings made by the Tribunal, and, in effect, requesting the court to substitute its views for that of the Tribunal. 

 

Discussion

108.          It would be fair to observe that the Tribunal findings on the subsidiary protection claim were terse. The Tribunal began its analysis by noting:

"[7.1] The Tribunal has accepted the material facts of the appellant's claim. I will now proceed to analyse whether these facts provide a basis for a finding that the appellant would face, if returned to her county of nationality, a real risk of serious harm."

 

109.          The Tribunal went on to appraise the facts, again in terse terms, by reference to the three elements that comprise the definition of "serious harm" in section 2 of the 2015 Act. Each element was considered individually. Hence, it is clear that the Tribunal directed itself to the correct test and considered the test in light of the facts as found.

 

110.          In the premises, it is very difficult to see how there was any lack of clarity in the decision. The Tribunal did not conflate the tests for persecution and serious harm. Instead, it made its finding "in line with the analysis at [5.1] - [5.3] above", which were the parts of the report that explained why the acts complained of by the applicant were not found to amount either to past persecution or a basis for a well-founded fear of future persecution. Those paragraphs engaged with the facts and provided a reasoned basis as to why they did not reach the relevant threshold. As I understand the report, the Tribunal concluded that there was no risk of torture, inhuman or degrading treatment or punishment, not because there was a finding that the threshold for persecution had not been reached, but, because a similar analysis of the same core facts led to the same outcome. In the premises, there was an assessment of whether the treatment experienced and feared by the applicant amounted to "serious harm", albeit an assessment that drew on the earlier factual analysis of the question of persecution.  

 

Ground E(7)

111.          Finally, with regard to ground E(7) the applicant argues that her right to a fair hearing and an effective remedy were breached as a result of the approach adopted by the Tribunal. In particular, it is asserted that if the process allows the Tribunal to reverse positive findings, to impugn creditability while purporting to accept material facts and to fail to consider material information put before it, it is difficult to see how that process could comport with the standards of fair procedures.

112.          The respondents asserted that it is wrong to frame the issue by saying that the Tribunal departed from the applicant's accepted account without putting same to her. The respondent contends that the Tribunal explicitly accepted the applicant's account, but did not accept that her account of what had happened to her amounted to persecution. This was a finding which was available to the Tribunal on the evidence. The respondents did not dispute that natural justice may require an oral hearing to be conducted depending on the circumstances of the case, and that that is provided for within the statutory scheme.

 

Discussion

113.          To a large extent the arguments under this heading amounted to an amalgamation of some of the fair procedures arguments made elsewhere by the applicant. These have already been dealt with in this judgment. In summary, and at the risk of unnecessary repetition:

a.              The Tribunal was fully entitled to reach different conclusions than those reached by the IPO.

b.              The Tribunal was required to hold a papers-only hearing, unless the interests of justice required otherwise.

c.              The applicant was obliged to explain why an oral hearing was required, and did not provide an adequate reason save for observing that the issues were weighty.

d.              In any event, on the authorities, the issues that the applicant asserted gave rise to a need for an oral hearing were not matters that gave rise to such a need.

e.              The applicant was aware that the IPO was not satisfied that there was well founded fear of persecution or serious harm if she was returned to South Africa. The applicant was afforded and availed of an opportunity to explain by way of submission why what she experienced and apprehended reached the relevant thresholds, and to identify any relevant country of origin information.

f.               The Tribunal must be accepted as having engaged with the submissions and information presented on behalf of the applicant.

 

114.          The decision of the Tribunal was clear and understandable, the reasons given for the decision were clear and comprehensible, and the decision reached was reasonable.

 

CONCLUSION

 

115.          In the premises, the court is not satisfied that the applicant can succeed on any of the grounds in respect of which leave was granted, and the application will be refused. As this judgment is being delivered electronically my provisional view is that, having succeeded in full in their opposition to the claims for relief, the respondents are entitled to the costs of the proceedings. I will list the matter before me for final arguments at 10.30 am on Thursday, the 29 May 2025.

 

 

 

 

 

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010