The High Court has quashed the International Protection Appeals Tribunal’s entire decision on a South African family’s appeal and sent the matter back for a fresh hearing.
The applicants, identified in the judgment as BD, TD and MD, are South African nationals. The first applicant is the mother of the other two, whose father is Albanian. They sought refugee status because they feared racial persecution in South Africa. The Tribunal had found that the two younger applicants faced a well-founded fear of persecution because of their mixed ethnicity, and that their mother faced the same likelihood through her connection with them. It also found that State protection was available to the family.
Both sides agreed that the Tribunal’s State-protection finding was flawed and should be quashed. They disagreed about whether the court should set aside only that part of the decision or quash the decision in full. The applicants sought a rehearing limited to State protection, leaving the fear-of-persecution finding in place. The respondents argued that the entire decision should be quashed.
Justice Bolger said the court had jurisdiction to grant partial certiorari, including in an asylum case, but that whether to do so depended on the circumstances. Here, the linked questions of persecution and State protection should be reconsidered together using current information about conditions in the country of origin. The judgment referred to the evolving nature of country-of-origin information and to European and Irish law requiring an up-to-date assessment.
The first applicant said giving oral evidence again would cause distress. The judge accepted that she believed the process would be distressing, but said she had provided no medical evidence of a condition requiring a different process. The judgment made no finding about whether she would need to give evidence at the rehearing; that choice, including a paper-based appeal, was left to her. The court concluded that anticipated distress and delay did not justify limiting the order to part of the Tribunal’s decision.
The court therefore quashed the whole decision and remitted the appeal for a fresh hearing on an ex nunc basis, taking account of precise and up-to-date information that may be available. On costs, the judge gave an indicative view that there should be no order. The matter was listed for further submissions on costs and final orders on 3 November 2023; the judgment does not record the outcome of that later listing.