E.S. v International Protection Appeals Tribunal & Anor (Approved)

Factual and Procedural Background

The Applicant, a South African national, arrived in the State on 6 September 2018 and sought international protection on the basis that he would face persecution or serious harm if returned to South Africa due to his racial identity as a white man. He recounted multiple instances of being attacked or robbed, including at gunpoint, over approximately ten years, some reported to police with allegedly ineffective responses, and others not reported. The Applicant also alleged police abuse and robbery immediately prior to his departure. The initial claim for international protection was refused, with South Africa designated as a safe country of origin and no well-founded fear of persecution established. On appeal, the International Protection Appeals Tribunal (the Tribunal) found that although the Applicant would likely face similar harm in the future, State protection was available, leading to refusal of subsidiary protection.

Procedurally, the Applicant was granted an extension of time to bring the judicial review challenge. The case was previously heard by another judge who allowed amendments to the statement of grounds. During the hearing before Ms. Justice Phelan, objections were raised regarding new arguments about the applicability of State protection to harm caused by State actors, which were not pleaded earlier and thus not considered. A late application to adjourn proceedings following the grant of temporary permission to remain in the State was refused, allowing the hearing to proceed on substantive issues.

Legal Issues Presented

1. Whether the Tribunal correctly applied the rebuttable presumption under section 28(6) of the International Protection Act 2015 regarding future risk of persecution or serious harm based on past harm suffered by the Applicant.
2. Whether the Tribunal correctly applied the concept and test of State protection under sections 31 and 33 of the 2015 Act, including the availability, effectiveness, and non-temporary nature of such protection.
3. Whether the Tribunal’s decision was adequately reasoned and rational, particularly in light of conflicting country of origin information and evidence of police corruption in South Africa.
4. Whether the Applicant was entitled to a higher standard of justification or a different approach to State protection when harm was caused by State actors.

Arguments of the Parties

Applicant's Arguments

• The Tribunal failed to apply the correct legal test under the 2015 Act, notably by not explicitly referring to the rebuttable presumption under section 28(6) or the requirement for an effective legal system under section 31(4).
• The concept of State protection should not apply to harm caused by State actors (e.g., police), or at minimum, a higher standard of justification is required to conclude that State protection is available in such cases.
• The Tribunal’s reasoning was inadequate and irrational, particularly given evidence of police corruption and ineffective responses to reported crimes.
• The Tribunal improperly conflated or failed to properly distinguish the tests under sections 31 and 33 regarding safe country designation and State protection.
• The Tribunal erred by not treating State protection as temporary when it was only available on some occasions.

Respondents' Arguments

• The Tribunal implicitly applied the rebuttable presumption under section 28(6) by recognizing past harm and future risk, even if not explicitly cited.
• The Tribunal applied the correct test for State protection under section 31, considering whether reasonable steps were taken by the State to prevent harm, including operation of an effective legal system.
• The Tribunal conducted a rational and evaluative assessment of the country of origin information (COI), acknowledging police corruption but also measures to investigate and prosecute corrupt officers.
• The Tribunal was not required to explicitly address section 33 regarding safe country designation once it proceeded to assess actual State protection under section 31.
• The Applicant was not deprived of the benefit of the statutory provisions and the decision was supported by ample material before the Tribunal.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed legal analysis focusing primarily on whether the Tribunal applied the correct legal tests under sections 28(6), 31, and 33 of the International Protection Act 2015. It found that although the Tribunal did not explicitly cite section 28(6) or the rebuttable presumption it creates, the substance of the Decision reflected awareness and implicit application of this presumption by recognizing past persecution and future risk, subject to State protection availability.

The Court further examined the Tribunal’s application of the State protection test under section 31. Despite the Tribunal not expressly referencing all subsections, notably section 31(4) regarding the effective legal system, the Court was satisfied that the Tribunal understood and applied the test in substance. The test requires that the State take reasonable steps to prevent persecution or serious harm, operate an effective legal system for detection, prosecution, and punishment of such acts, that protection be effective and non-temporary, and that the applicant has access to such protection.

The Court rejected the Applicant’s argument that the Tribunal’s reference to police corruption and the concept of "tacit consent" indicated application of an incorrect legal test. Instead, these references were considered part of the Tribunal’s evaluative analysis of the effectiveness of State protection, consistent with relevant case law. The Court also found no merit in the argument that a higher standard of justification is required for State protection findings in cases involving harm by State actors, noting no statutory or case law authority for such a proposition.

Regarding the adequacy of reasoning, the Court found the Tribunal’s Decision sufficiently reasoned and rational. The Tribunal considered conflicting country of origin information, acknowledged police corruption and shortcomings in protection, but identified reasonable steps taken by the South African authorities, including investigations and prosecutions of corrupt officials. The Tribunal also took into account the Applicant’s failure to report or follow up on some incidents. The Court held that the Tribunal’s conclusion that State protection was available was supported by ample evidence and was not unreasonable.

Finally, the Court addressed procedural objections regarding the failure to plead arguments about the inapplicability of State protection to State actors and found that such arguments were not properly before the Court and thus not determined.

Holding and Implications

The Court DISMISSED the Applicant's application for judicial review.

The decision confirms that in judicial review of international protection refusals, explicit citation of statutory presumptions is not mandatory provided the correct legal tests are applied in substance. It affirms that the test for State protection under section 31 involves an evaluative assessment of whether the State takes reasonable steps to prevent persecution or serious harm, including operating an effective legal system, and that protection need not be perfect but effective and accessible.

The ruling underscores the importance of reasoned decisions that weigh conflicting evidence and country of origin information and clarifies that no higher standard applies to State protection claims involving harm by State actors. The decision has no broader precedential effect beyond the parties and does not alter existing legal principles.