A.S. v The International Protection appeals tribunal & Ors (Approved)

Factual and Procedural Background

The Applicant, a national of South Africa of white ethnicity, arrived in the State on 7 March 2022 and applied for international protection on 12 April 2022. She claimed that she faced persecution or serious harm on the grounds of race if returned to South Africa, alleging prior victimisation on similar grounds. The International Protection Appeals Tribunal (IPAT) rejected her application on 18 November 2024, finding that the Applicant’s experiences did not meet the threshold for persecution. The Tribunal’s decision relied on extensive country of origin information (COI) from various sources, including reports from the United States Department of State, Freedom House, the UK Home Office, and others.

The Applicant sought judicial review of the IPAT’s decision, alleging that the Tribunal failed to consider up-to-date COI, which was argued to be a breach of its duty to cooperate and properly assess the claim. The proceedings were initially opened on 20 January 2025, with the court affording the Applicant an opportunity to file further affidavit evidence to establish the existence and relevance of more recent COI. The Respondents were placed on notice of the proceedings and appeared to oppose the application. An inter partes hearing took place on 21 March 2025, with additional affidavits filed by both parties.

Legal Issues Presented

1. Whether the Applicant demonstrated substantial grounds to challenge the IPAT’s decision on the basis that the Tribunal failed to consider up-to-date country of origin information when making its determination.
2. Whether the Applicant has shown a sufficient basis for an extension of time to initiate judicial review proceedings, given the application was filed 35 days after the statutory 28-day limit.

Arguments of the Parties

Applicant's Arguments

• The COI relied upon by the IPAT was outdated and did not reflect the situation at the time of the decision, breaching the obligation to consider precise and up-to-date information under European and domestic law.
• More recent reports, including a 2024 Freedom House Report and a 2023 US Department of State Report, were not considered but would have supported the Applicant’s claim of risk and police ineffectiveness in South Africa.
• The delay in filing proceedings was due to a briefing error with Counsel, which only came to light after the statutory time limit had passed.

Respondents' Arguments

• The COI relied upon by the IPAT was extensive and up to date for the relevant period, including reports from 2022 and 2023.
• The Applicant failed to specify what materially different or relevant information more recent COI contained that could have impacted the IPAT’s decision.
• The delay in filing was inadequately explained and the Applicant faces an uphill struggle to obtain an extension of time.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first addressed the timeliness of the proceedings, noting the application was filed 35 days after the statutory 28-day deadline. The explanation for delay was a briefing error with Counsel, which was inadequately followed up before the expiry of the time limit. While this explanation was incomplete and not compelling, the Court was satisfied that, at the leave stage, the Applicant had demonstrated a sufficient basis to argue for an extension of time at the full hearing.

Regarding the substantive issue, the Court considered whether the IPAT failed in its duty to cooperate by not using up-to-date COI. The Court examined the specific COI relied upon by the IPAT and the newer COI the Applicant alleged should have been considered. It found:

• The IPAT had relied on extensive and recent COI, including reports from 2022 and 2023, and had invited submissions from the Applicant on COI prior to the decision.
• The Applicant did not provide a detailed or comparative analysis identifying material differences between the COI relied upon and the newer reports she claimed were omitted.
• The newer COI did not demonstrate any material change in circumstances relevant to police effectiveness or state protection that would have altered the Tribunal’s decision.
• The Applicant’s submissions contained vague or unsupported assertions, some of which were not evidenced or were drawn from sources not before the Court.
• The Court emphasized the importance of a qualitative comparative exercise to establish that the omission of more recent COI was material and prejudicial.

On this basis, the Court concluded that the Applicant’s challenge was trivial and tenuous rather than reasonable or weighty, failing to meet the substantial grounds threshold required for leave.

Holding and Implications

LEAVE TO PROCEED BY WAY OF JUDICIAL REVIEW IS REFUSED.

The Court’s refusal to grant leave means that the Applicant’s challenge to the IPAT decision will not proceed to a full hearing. The decision effectively upholds the IPAT’s use of the COI and its finding that the Applicant was not entitled to international protection. No new legal precedent was established by this ruling; it confirms the application of existing principles regarding the substantial grounds test, the duty to consider relevant COI, and the exercise of discretion to extend time in immigration judicial review cases.