The High Court has dismissed a South African man’s judicial review challenge to a decision refusing him subsidiary protection, finding that the International Protection Appeals Tribunal had lawfully concluded that state protection was available to him in South Africa.
The applicant, identified in the judgment as E.S., said he feared being killed if returned. He described robberies and attacks affecting him and family members over about ten years, including incidents involving firearms. He also said police responses were ineffective and that police had abused and robbed him shortly before he left South Africa. The tribunal accepted that he had been the victim of several serious crimes, including three armed robberies and being searched and robbed by police.
The tribunal found that future criminal harm could occur, but that effective state protection was available. The applicant challenged that assessment, arguing that the tribunal had applied the wrong legal test, failed to give adequate reasons and reached an irrational conclusion. The Minister and the tribunal opposed the challenge.
Justice Siobhán Phelan held that the tribunal had implicitly applied the statutory presumption that past harm is a serious indication of future risk. The application failed on the separate question of protection: the tribunal had treated future harm as a risk but concluded that protection was available. The judge said the decision addressed police corruption and high crime levels alongside measures to investigate and prosecute wrongdoing, and the applicant’s failure on some occasions to report or follow up incidents.
The court found that the tribunal had considered the operation of an effective legal system, although it had not expressly cited the relevant statutory subsection. It also found that the tribunal had assessed the actual protection available in the applicant’s circumstances and had not relied on South Africa’s safe-country designation in reaching its decision.
A separate argument that the statutory state-protection test could not apply to harm by state actors was not properly pleaded. The judge expressed no view on that argument. She also rejected the respondents’ request to adjourn the case after the applicant received temporary permission to remain in Ireland, finding that temporary permission was not equivalent to international protection and that he could continue his claim.
The court dismissed the judicial review application. It directed that the matter be listed after two weeks to address any consequential or arising matters.