The High Court has quashed the part of a protection appeal decision that found an anonymised South African applicant could relocate to Cape Town. The court sent that issue back to the International Protection Appeals Tribunal for a fresh determination, while leaving the tribunal’s other findings in place.
In a judgment delivered on 18 November 2020, Ms Justice Burns said the tribunal had accepted the applicant’s account that her father, described as a tribal leader, chose her for a forced marriage, subjected her to a virginity examination and physically assaulted her when she resisted. The tribunal also found that adequate state protection was unavailable to her in South Africa. It refused her protection claim because it considered internal relocation an option.
The applicant challenged only the relocation finding. She argued that it was legally wrong, unreasonable and inadequately explained. The High Court considered the requirements of section 32 of the International Protection Act 2015 and principles from an earlier case, KD (Nigeria) v Refugee Appeals Tribunal. Those principles require decision makers to assess both whether the proposed area is safe and whether it would be reasonable for the applicant to settle there, taking account of personal circumstances and conditions in that area.
The tribunal had reasoned that Cape Town’s distance from the applicant’s father and its large population would reduce the risk of him finding her. It also considered her 13 years of education and Cape Town’s comparatively low unemployment rate as grounds to expect that she could find work. The applicant had told the tribunal she had no money, work experience or connections there, and feared being forced into prostitution or exploitation.
Justice Burns said the tribunal had not addressed the fact that Cape Town’s unemployment rate, although among the lowest in South Africa, remained high. Nor had it assessed what financial or residential support might be available to the applicant if she returned. The judgment also referred to country information about trafficking and exploitation, which the tribunal had not discussed in its analysis of her stated fears.
The court rejected the respondents’ reliance on the applicant’s ability to arrange travel to Ireland as evidence of resourcefulness. She had organised that journey while staying with her grandmother and with financial help from her; the judgment said her circumstances in Cape Town would be different, and the tribunal had not relied on that point in its decision.
The court ordered certiorari quashing paragraphs 5.16 to 5.21 of the tribunal’s decision and remitted that portion for further determination. It declined to quash the entire decision because earlier findings in the applicant’s favour were not challenged. The court also awarded her costs, including reserved costs, against the respondents. It did not decide the protection claim anew or direct a particular outcome on remittal.