The High Court has quashed a decision refusing international protection to a father and daughter, finding that the appeals tribunal applied the wrong approach to whether South Africa could protect them from xenophobic violence.
In a judgment delivered on 21 December 2021, Mr Justice Cian Ferriter ruled that the International Protection Appeals Tribunal had not properly applied section 31 of the International Protection Act 2015. That provision requires protection to be effective and non-temporary, including through an effective legal system for detecting, prosecuting and punishing persecution or serious harm.
The applicants, identified in the judgment as FM and RM, are South African nationals. FM was born in the Democratic Republic of Congo and moved to South Africa in 1995, where he was granted refugee status. He later became a South African citizen through marriage. His daughter RM was born in South Africa.
FM told the protection authorities that he had faced xenophobic threats and abuse, and that he was injured in a knife attack in March 2018. The Tribunal accepted his account and found there was a reasonable chance that he and his daughter would face persecution if returned to South Africa because of his foreign birth. It nevertheless concluded that effective state protection was available and affirmed the refusal of refugee status and subsidiary protection.
The High Court examined the country information relied on by the Tribunal, including reports describing police responses to xenophobic incidents as sometimes prompt but often slow or inadequate. The reports also described limited protection for foreign nationals’ property and livelihoods, few convictions for past outbreaks of xenophobic violence, and the absence of a mechanism for justice and accountability for such crimes.
Justice Ferriter found that evidence of some official action did not establish effective, non-temporary protection. He said the Tribunal had focused on selected passages while overlooking evidence about failures to investigate and prosecute perpetrators. The Tribunal also relied on general information about investigations of police abuses to answer evidence concerning accountability for xenophobic violence, which did not address the same issue.
The court held that the Tribunal had failed to ask the correct legal questions about reasonable preventive steps, an effective legal system, and whether protection was effective and non-temporary. It made an order of certiorari quashing the Tribunal’s decision. The judgment did not itself grant either applicant protection; the judge said the court would hear the parties on any consequential orders required.