N v International Protection Appeals Tribunal & anor

APPROVED NO FURTHER REDACTION NEEDED THE COURT OF APPEAL Appeal Number: 2025 302 Neutral Citation Number: [2026] IECA 39 The President Binchy J. Allen J. BETWEEN/ N. (SOUTH AFRICA) APPLICANT - AND – THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION RESPONDENTS JUDGMENT of Mr. Justice Allen delivered on the 16th day of March, 2025 Introduction 1. This is an appeal by the applicant against the judgment and order of the High Court (O’Connor J.) delivered on 27th November, 2025 ([2025] IEHC 691) refusing a motion brought on behalf of the applicant for an interlocutory injunction restraining the second respondent (“the Minister”) from taking steps to deport the applicant pending the determination of his judicial review proceedings. 2. The applicant came to Ireland from South Africa on 7th September, 2022 and applied for international protection. On 2nd February, 2024 the International Protection Office (“IPO”) recommended that his application be refused. The IPO found that the applicant’s country of origin was a safe country of origin; that the applicant had not established a well- founded fear of persecution if returned to South Africa; and that he had not shown substantial grounds for believing that he would face a real risk of suffering serious harm if returned. On 8th August, 2025 his appeal to the International Protection Appeals Tribunal (“the Tribunal”) was rejected. The Tribunal accepted that the applicant had suffered persecution for a convention reason and had a well-founded fear of persecution for a convention reason if he were to be returned to South Africa, but went on to find that adequate state protection was available to the applicant in his country of origin. Significantly, the Tribunal found that the applicant had failed to access the state protections that were available to him in South Africa. 3. On 8th September, 2025 the applicant filed an application for leave to apply to the High Court by way of judicial review for an order of certiorari quashing the decision of the Tribunal and leave was granted by Bradley J. on 20th October, 2025. In the meantime, on 15th October, 2025 the Minister had made a deportation order and by notice of motion issued on 12th November, 2025 the applicant applied for an interlocutory injunction restraining the Minister from taking steps to deport him pending the determination of the judicial review proceedings. 4. In short, the applicant’s case was – and is – that if deported he would be exposed to a risk of violence, or worse. Delay in filing opposition papers 5. Having obtained leave on 20th October, 2025, the applicant filed his substantive motion on 28th October, 2025, which was initially returnable to 12th November, 2025 and thereafter adjourned from time to time. It was spelled out in the affidavit filed in answer to the interlocutory application – if it was not perfectly clear beforehand – that the judicial review application would be opposed. By the time the appeal came on for hearing on 26th January, 2026 the opposition papers had yet to be filed. 6. At the hearing of the appeal there was a slightly sharp exchange between counsel as to the late filing of the opposition papers. Counsel for the applicant protested that they were long overdue – which they were. Counsel for the Minister countered that the applicant had acquiesced in the adjournment of the substantive application from time to time and had only on the previous Wednesday complained to the asylum list judge that they had not been filed. He made the point that the Minister had – quite exceptionally, he said, and only in the particular circumstances of this particular case – given an undertaking not to deport the applicant pending the hearing of the appeal. Upon complaint being made of the delay, the asylum list judge directed that the opposition papers be filed by 30th January, 2026 and the matter was put into the list to fix dates on 20th February, 2026. 7. It seems to me that the rights and wrongs of the delay in the filing of the opposition papers does not go to the merits of the appeal. If the opposition papers should have been filed sooner than they were, it is difficult to understand why the applicant did not protest at the delay sooner than he did. In any event, the interlocutory application was dealt with in the High Court on the basis that it would be opposed and the appeal can be dealt with on the same basis. The High Court application 8. The motion before the High Court was grounded on a short affidavit of the applicant filed on 12th November, 2025 in which he referred to the verifying affidavit which had been filed on his behalf with his statement grounds on 8th September, 2025. The verifying affidavit was similarly short but the applicant exhibited two large bundles of exhibits, the first containing his application for international protection, the IPO report, his notice of appeal and written submissions to the Tribunal, a medico legal report and photographs, and the decision of the Tribunal; and the second the country of origin information that was before the Tribunal. 9. The judgment under appeal shows that the book of papers filed in the High Court ran to 359 pages. If the index was anything like the index to the book of pleadings filed on the appeal, it was well short of what it should have been. 10. The written submissions filed on behalf of the applicant in the High Court in support of the interlocutory motion – described as supplemental written submissions – ran to six pages, the great majority of which were devoted to what it must be said was a very clear exposition of the applicable principles. Those submissions did not address the evidence. The factual basis for the application was said to be that the Tribunal had found that the applicant had been the victim of two xenophobic attacks; that the applicant continued to maintain a claim of risk from his persecutors in South Africa; and that the applicant maintained that he could not seek state protection from the police in South Africa. 11. In the substantive judicial review proceedings, the applicant seeks an order of certiorari quashing the decision of the Tribunal. Yet, on his application for an interlocutory injunction restraining his deportation, he seeks to rely on so much of the decision of the Tribunal as found that he had a well-founded fear of persecution, while disaggregating so much of it as found that there was adequate state protection available to him in South Africa: a country which has been designated by the Minister as a safe country pursuant to s. 72 of the International Protection Act 2015. It is common case that if the decision of the Tribunal is quashed, the applicant’s appeal will have to be reconsidered in its entirety but the applicant submits that this is irrelevant to the consideration of the injunction application. 12. As I have said, the affidavit filed in support of the interlocutory application was short, and the factual basis for it was stated very shortly and at a high level of generality. If, at least inferentially, the applicant was relying also on his affidavit of verification and the material exhibited by him, he did not highlight where – in the 359 pages – the material relied on was to be found. It is not the function of the High Court, still less of this Court, to interrogate thick folders of documents with a view to winnowing out relevant detail, but in view of the seriousness of the applicant’s assertions, I have done so. Factual background 13. The applicant is a black South African citizen who was born on XXXXX. He was born in Zimbabwe but was taken by his mother to South Africa when he was only weeks old. He took a flight from Ethiopia on 6th September, 2022 and arrived in Dublin airport – over Sweden – on 7th September, 2022. He had no passport. In the short record of his preliminary interview he gave the reason for his fear of persecution that he feared that he might be tortured or maybe killed. In his short application form of the same date, he indicated that he was applying for asylum due to threats he was getting from a group calling themselves “Operation Dudula”. He said that he had been staying in a church where he had been doing cleaning and maintenance. The group – he said – was fighting the pastor of the church about the building and had killed one of the fellow members of the church who was also residing in the church. Then – he said – the group tortured him and almost killed him “so now they are after me as the pastor vanished.” 14. On 10th October, 2022 the applicant completed the 29 page IPO questionnaire. He indicated that he had been born in Zimbabwe; was a South African citizen; was Zulu by ethnicity; and Christian by religion. He indicated that he had left South Africa on his own passport but that he had lost it. He indicated that he had been helped by his pastor to finance his travel expenses. He gave an address in South Africa for the period between January, 2010 and December, 2016 in XXXXX, Johannesburg, and for the period January, 2022 to August, 2022 in XXXXX, Johannesburg South. Although he had indicated in his initial application form that he did not know the name, date of birth, or current whereabouts of either of his parents, he was able to give all this information on the IPO questionnaire. 15. In section 4 of the IPO questionnaire the applicant indicated that he was applying for international protection on the grounds of religion and membership of a particular social group. The narrative was that he had been homeless and living in the street for some time after losing contact with his mother before being taken in by a pastor named XXXXX, who gave him accommodation in a church called XXXXX. He was – he said – one of fourteen homeless or previously homeless people living in the church and worked as a caretaker. One day – he said – the residents were approached by a group calling themselves Operation Dudula who threatened to burn down the church because it was owned by a foreigner. The pastor – who was living elsewhere – told his guests that they mustn’t leave as he had purchased the property following the right procedures. Then, one night, the applicant and his companions were awakened by noise and found that the building was on fire. They escaped through a window but one his companions was caught and burned to death by the assailants. The applicant – he said – went to a hiding place but was found after two days. The group was throwing stones and setting the room on fire and demanding to be told the whereabouts of the pastor. After about a week the pastor booked tickets for himself and the applicant to Ireland but disappeared in Dublin airport. The applicant thought that the pastor might have gone to the UK as he was from there. Later the applicant indicated that the pastor had disappeared with all of his – the applicant’s – documents. 16. In section 5 of the questionnaire the applicant indicated that a case of arson and damage to property had been opened by the police and a few of those who had been involved were arrested. Others of those who had been involved in the attack continued to look for the pastor and other church members. They came at night to where the applicant was hiding but he managed to run away. They burned all of his clothing and personal belongings. In section 7 he said that they had burned the church in which he had been living and working, which left him homeless and jobless. 17. On or shortly before 2nd December, 2024 the applicant instructed solicitors and made a couple of amendments to the information previously provided. The particular social group of which the applicant was a member was “Witness to crime, targeted by dangerous gang in S.A.” To the reasons why he should be allowed remain in the State, the applicant added that he would like to work and pay taxes and further his studies and wanted to do volunteering work as well. On 3rd January, 2024 he further supplemented his reasons why he should be allowed to remain in Ireland by saying that he had undertaken volunteer work, added to his work skills, attended an integration programme, had received a work permit and was working and paying taxes, and would like to open his own catering company. 18. On the following day, 4th January, 2024, the applicant added to his account of events after the church had been burned. He said that he went to hospital for treatment and from there to his baby’s mother in XXXXX. He said that he had got a call from a person who said they were a police officer and gave them the address at which he was staying. The police called to see him and said that he might be needed to identify the people who had been arrested. At the same time – he said – the police said that those people were well connected and that he must not identify anyone and would be given something in return for his silence or understanding. He said that he had told the police that he refused to keep quiet and would point out all of the faces he saw and remembered. He said that after the police left, the group attacked his new address and that he somehow thought that those police officers were the ones who revealed his new address to his attackers. 19. The applicant was interviewed by an IPO officer on 12th January, 2024. He gave the same account of the attack on the church, his engagement with the police, his journey to Ireland, and the disappearance of his pastor in Dublin airport. He said that the mother of his child had twice since been contacted by the police to ask about his whereabouts but that she had not been contacted by Dudula since he left. He did not say whether his child’s mother had told the police that he had gone to Ireland or provided the police with his contact details. He said that he feared for his child and her mother as they might be put under pressure to say where he was. I pause here to say that he did not say that they had been put under pressure by the police or why – if he did – he apprehended that Operation Dudula might return to the house in XXXXX. The applicant identified his pastor as XXXXX, white English, who had come to South Africa to open a church. He supplemented the information already given by confirming that he had gone from Johannesburg to XXXXX by Uber, and had been collected from there by Pastor XXXXX. 20. Asked by the interviewing officer whether there was another city in South Africa to which he could have gone for safety, the applicant answered “No.” Asked why he had decided to come to Ireland, he answered that it was not his decision, it was his pastor’s decision. Asked whether he would consider moving to Eswanti to avoid harm, he said “No.” he said that operation Dudula was a group operating in the whole of South Africa: “… if I’m there and try to get to my child they will be able to see me there too.” 21. It was put to the applicant that while corruption was an issue in South Africa, the U.S. Department of State Country Report on Human Rights Practices – South Africa, published on 12th April, 2022 noted that there were legal avenues available to fight those corruptions. Asked why he had not gone to those agencies for help, the applicant answered:- “I could have done that, but now my fear is what will happen to me while I try to get help. These people will stop at nothing to silence me. I’m not even sure how connected Operation Dudula is. I would be risking my life.” 22. As I have said, the applicant’s application for international protection was rejected by the IPO on 2nd February, 2024 and his appeal was rejected by the Tribunal on 8th August, 2025. The deportation order was made on 15th October, 2025, after the applicant had been afforded – and availed of – the opportunity to make representations and submit new information and evidence. 23. The deportation order in respect of the applicant made under s. 51 of the International Protection Act, 2015 was accompanied – as required by s. 50 of the Act – by a report of the consideration of the prohibition of refoulement. That report noted that South Africa was designated as a safe country of origin under s. 72 of the Act and that in deciding to make such an order the Minister must be satisfied that, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution, no torture or inhuman or degrading treatment or punishment, and no threat by reason of indiscriminate violence in situations of international or internal armed conflict. Significantly, the s. 50 consideration referenced the U.S. State Department Country Report on Human Rights Practices for 2024 – South Africa, dated 12th August, 2025. The conclusion of the consideration was that:- “Whilst it is accepted that the applicant’s international protection claim was found to be credible by (both) the IPO (and IPAT) it was found that adequate state protection was available to the applicant in South Africa. The applicant/legal representatives have not submitted any new information, evidence or statements challenging the findings of the IPO (and IPAT) and as such it is found that adequate state protection is available to the applicant and that there are no barriers to their return to South Africa.” 24. I pause here to say that while the written submissions filed on the appeal made passing criticism of the deportation order, it was not the subject of any separate challenge. Thus, the premise of the High Court application and the appeal is that the Minister has made a valid deportation order in respect of the applicant. The High Court judgment 25. The short affidavit of the applicant grounding the motion was largely a chronology of his application for international protection, his judicial review application, and his solicitors’ correspondence with the Minister by which he had urged in vain that his deportation should be postponed. At para. 11 he asserted that he had established an arguable and strong case. At para. 12 he deposed that deporting him to South Africa would pose a risk to his safety and could amount to an injustice. At para. 13 he deposed that he feared a breach of his fundamental human rights if returned to South Africa. At para.14 he deposed that neither the Tribunal nor the Minister would suffer any prejudice if the injunction was granted. And at para. 17 he asserted that he could not continue his application for judicial review from outside the State. 26. I pause here to recall that most of the detailed information in relation to the factual background which I have set out has been gleaned from the large, poorly indexed, folder of papers. I do not believe that it is unfair to say that the grounding affidavit made a number of assertions without providing any explanation or evidence in support of them. 27. In answer to the motion, an affidavit of Ms. Elaine Houlihan was filed on behalf of the Minister. Ms. Houlihan first made the point that both the IPO and the Tribunal had found that the applicant was not a person in need of international protection. She went on to say that there was nothing to prevent the prosecution of the judicial review proceedings without the physical presence of the applicant in the State. Ms. Houlihan also made the point that if the judicial review proceedings were to succeed, the applicant could apply under s. 3(11) of the Immigration Act 1999 for the revocation of the deportation order which – without pre- empting the outcome of any such application – there were good reasons to believe would be successful. 28. There was no justification for the applicant’s averment that the prosecution of the judicial review proceedings might be impeded by the removal of the applicant from the State and it was not pursued. 29. The proposition that in the event that the Tribunal decision was quashed, the applicant could apply for the revocation of the deportation order was not contested. In the written submissions filed on behalf of the applicant on the appeal, the point was made that Ms. Houlihan had not said that if the judicial review proceedings were to succeed the deportation order would be revoked or that, in such event, that the applicant would be granted a visa. I see no substance in this. Ms. Houlihan spelled out that if the decision of the Tribunal was quashed, the applicant could apply to have the deportation order revoked. She could not – she said – pre-empt the outcome of any such application but there was no reason to believe that it would not be granted. This was uncontested. 30. The applicant’s motion was heard by the High Court (O’Connor J.) on 25th November, 2025 and a short written judgment was delivered two days later. Having outlined the chronology and summarised the parties’ arguments, the judge concluded that the applicant had not satisfied the court that as of November, 2025 there was no effective protection in South Africa against the serious harm which he feared and which he had suffered previously. He said that he was obliged to take into account the fact that South Africa was designated as a safe country of origin under s. 72. He said that the applicant had not addressed or referred to the U.S. State Department report of 12th August, 2025 in his attempt to persuade the court that the designation was wrong. The judge said that the applicant could not pick and choose sentences from the Tribunal’s decision while challenging the process which had led to that decision. Citing para. 107 of Okunade v. Minister for Justice [2012] 3 I.R. 152, the judge emphasised the importance to be attached to the exercise by the State of its right to control its borders and implement orderly immigration policy. He acknowledged that the applicant had – I think that he must have meant previously had – reasons to fear for his life and safety but emphasised that the appropriate time for the assessment of that risk was at the date of hearing of the injunction application. For those reasons, the application for an injunction was refused. The appeal 31. By notice of appeal filed on 4th December, 2025 the applicant appealed against the judgment and order of the High Court on eight grounds. 32. There is substance to the criticism – in ground No. 4 – that the judge imposed an erroneous evidential burden on the applicant in the context of an application for an interlocutory injunction. In stating (at para. 10) that the applicant had not satisfied the High Court as to the unavailability to him of effective protection in South Africa, I believe that the judge went too far. The correct enquiry, in accordance with para. 111 of Okunade, ought to have been whether there existed “a particular risk to the individual or a specific risk of irremediable damage.” It is true that Clarke J. prefaced that statement by contemplating that an applicant might be able to “demonstrate that deportation, even on a temporary basis, would cause more than what one might describe as the ordinary disruption in being removed from a country in which the relevant applicant wished to live” but in the context of an interlocutory application, it is sufficient that the applicant should demonstrate a real risk. This, I believe, is quite clear from para. 112 of Okunade where Clarke J. said:- “Where, on an arguable grounds basis, the situation with which a judge of the High Court is faced when considering an interlocutory injunction application in this field is one where there is a credible basis for suggesting that a real risk of significant harm would attach to the applicant on deportation, then it would require very weighty considerations indeed to displace the balance of justice on the facts of that case …” 33. There appears to be substance also in the criticism – in ground No. 5 – that the judge appears to have misunderstood the applicant’s submission in relation to the designation of South Africa as a safe country of origin. Counsel for the applicant insists, and I accept, that it was no part of the applicant’s case that the designation of South Africa pursuant to s. 72 was wrong. Rather, by reference to the statement of grounds, the argument was that, although designated as a safe country of origin, there were grounds for considering that it was not a safe country of origin in his particular circumstances and in terms of his eligibility for international protection. 34. This ground also goes to the significance attached by the judge to the fact that the applicant had not addressed or engaged with the U.S. State Department report of 12th August, 2025. It is not contested that the judge was perfectly correct in taking the relevant time at which the application was to be considered as the date on which it came before the court. The argument, however, is that since the issue was not whether South Africa was generally a safe country of origin but whether there were serious grounds for considering that it was a safe country of origin in his particular circumstances and in terms of his eligibility for international protection, the State Department report was irrelevant. In this I think that the applicant is on less firm ground. 35. In B.D. v. International Protection Appeals Tribunal [2025] IESC 38, the issue was whether a finding that the applicants had shown a well-founded of fear of persecution was severable from a finding that they were able to avail of state protection in, as it happens, South Africa. O’Malley J. (writing for a full Supreme Court) found that the question of fear of persecution is inextricably entwined with the question of state protection and that the two elements must be considered by reference to each other. 36. While the fundamental premise of the applicant’s case is that, if deported, he would be exposed to a risk to his personal safety, the case argued was not that this risk could be seen from the evidence of his experience, rather it was based on the finding of the Tribunal that he had a well-founded fear of persecution. The High Court was not asked to consider whether, objectively, there was sufficient evidence of a risk to his personal safety, Rather, the argument revolved around the question of the availability to the applicant of adequate state protection against that risk. I accept the submission of counsel for the applicant that in principle the issues that arise on an application for an interlocutory injunction restraining deportation may be quite different to the issues in the underlying judicial review, but in this case the foundation of the interlocutory application was the unavailability to the applicant of state protection. 37. It is common case that an applicant is not entitled to pick and choose between the findings of the Tribunal. Counsel for the applicant is adamant that she is not. Counsel for the Minister is no less adamant that she is. I see the argument that the interlocutory application did not – beyond the establishment of substantial grounds – pertain to the validity of the decision of the Tribunal, and that to that extent, B.D. was distinguishable. However, the decision of the Supreme Court as to the basis on which the applications in that case ought to be remitted was based on a principled analysis of the inextricability of the question of fear and the question of state protection. It seems to me that once the applicant put in play what he relied on as his well-founded fear of persecution, the question of the availability to him of adequate state protection was necessarily part of the assessment. Moreover, as I have said, part, at least, of the applicant’s case was that he was unable to seek state protection from the police in South Africa. 38. I mentioned earlier that one of the bundles of documents exhibited by the applicant in support of his judicial review application was a bundle of country of origin information. This – quite properly – was information directed to establishing the state of affairs as of the time at which the applicant’s international protection application and appeal were under consideration. The U.S. State Department report of 12th April, 2022, which was discussed with the applicant in interview and to which regard was had by the IPO and the Tribunal in coming to their decisions, addressed the question of corruption in government and the steps which had been – and which had not been – taken to address it. It seems to me that in precisely the same way that the questions of fear of persecution and state protection are inextricably intertwined, so also are the questions of the availability of state protection generally and the availability of state protection to the applicant. It follows, in my view, that contrary to the applicant’s submission the U.S. State Department report of 12th August, 2025 was relevant to the motion before the High Court. The heart of the appeal 39. The applicant’s first, second and sixth grounds are linked. The first ground is that the judge did not – as required by Okunade – determine where the greatest risk of injustice lay. The second ground is that the judge failed to consider, assess and determine the real risk that the applicant, if returned, would be subjected to further acts of persecution. The sixth ground – which it seems to me is at the heart of the appeal – is that the judge erred in law in not considering the evidence submitted on behalf of the applicant to the effect that, despite the designation of South Africa as a safe country, there was no means by which he personally could secure protection from further xenophobic attack. 40. At the hearing of the appeal there was as much in common between the parties as there was in issue. 41. It was common case that the principles to be applied in considering an application for an interlocutory injunction restraining a deportation pending the hearing of a judicial review application were to be found in Okunade at paras. 106 to 117. It was common case that the overarching consideration was that, recognising the risk of injustice as an inevitability, the court should put in place a regime which minimises the risk of injustice. 42. Counsel for the Minister emphasised that significant weight needs to be attached to the implementation of decisions made in the immigration process which are prima facie valid. Counsel for the applicant did not demur. Counsel for the applicant emphasised the passage which I have already quoted that where there is a credible basis for suggesting that a real risk of significant harm would attach to the applicant on deportation, then it would require very weighty considerations indeed to displace the balance of justice on the facts of that case. Counsel for the Minister did not demur. 43. Citing the decision of this Court in Yoplait Ireland Ltd. v. Nutricia Ireland Ltd. [2025] IECA 163, counsel for the Minister submitted that in his assessment of the balance of convenience, the judge ought to be afforded a considerable margin of deference, with intervention only being appropriate if the Court was satisfied that there was an injustice. I accept that Yoplait is clear authority for the proposition for which it was cited but I do not consider it to be applicable in this case. In the first place, the judge appears to have misunderstood the applicant’s argument. Secondly, the judge articulated a higher standard of proof that that which is applicable. Thirdly, the applicant’s core argument is that he will suffer an injustice if returned to South Africa before his judicial review proceedings have been determined. If that is made out, it will trump any question of the appropriate margin of appreciation. 44. As I have said, it seems to me that the issue at the heart of this appeal is whether the judge erred in failing to consider the evidence said to have been submitted on behalf of the applicant that there is no means by which he personally could secure effective protection from further xenophobic attack. The premise of that ground is that there was in fact such evidence before the High Court. 45. It was common case that the applicant – having obtained leave to apply by way of judicial review – had an arguable case that the decision of the Tribunal should be quashed. 46. It was common case that the test to be applied in assessing an application for international protection is a two part test, and that in this case – as far as the substantial judicial review application is concerned – the Tribunal’s finding of a well-founded fear was inseparable from its finding that there was adequate state protection available to him in South Africa. (B.D. v. International Protection Appeals Tribunal). It was common case that the consequence of the applicant’s success on the substantive application would be a rehearing of his appeal, which would necessarily entail a re-evaluation of each of or both strands of the test of whether he is a refugee. 47. While it appears to have been common case that the question of the existence or non- existence of effective state protection was not a matter for the High Court, whether in the judicial review proceedings or on an application for an interlocutory injunction, yet the applicant’s submission – more or less but not quite following the Okunade formula – was that he had demonstrated that there was a credible basis for believing that he would not receive effective state protection. 48. In his affidavit grounding the interlocutory motion, the applicant deposed that his deportation “would pose a risk to [his] safety and would amount to an injustice” and that “If deported, the Minister would be returning me to a country where I fear persecution and where both the IPO and Tribunal have previously accepted that I was persecuted.” That focussed on one of the inextricable questions to the exclusion of the other. What the applicant did not say, or attempt to substantiate, was that there was no means by which he could secure adequate state protection. On the evidence of his reporting to the IPO, the applicant had not even considered what state protection was or might have been available to him following the visit of the two policemen to the house at which he was staying in XXXXX. On his own case, the reason he had left South Africa was not the unavailability of adequate state protection but because his pastor had suggested it and made the necessary arrangements. 49. In his verifying affidavit (at para. 13) the applicant noted that the Tribunal had accepted that he was the victim of two xenophobic attacks at the hands of Operation Dudula and went on to suggest that it ultimately held that adequate state protection was available to him in South Africa as evidenced by South Africa’s designation as a safe country of origin. That was as far as he went. He did not contest the finding of the Tribunal that adequate state protection would be available to him. 50. The proposition that there was no means by which the applicant personally could secure protection from further xenophobic attack was not among the legal grounds relied on. The nearest the grounds came to it was that the analysis of state protection carried out by the Tribunal was unlawful and/or inadequately reasoned and that there was no, or insufficient, consideration of whether the protection was effective in practical terms and undue weight was attributed to the existence of anti-corruption bodies operating in South Africa. This may or may not be the case and, if it is, may or may not be grounds on which the decision of the Tribunal ought to be quashed. However, a criticism of the reasoning of the Tribunal is not evidence of a real and present danger. 51. Separately, the statement of grounds asserted that the Tribunal acted in breach of s. 33(b) of the Act in failing to consider whether there existed any serious grounds for considering that South Africa was not a safe country of origin in his particular circumstances and in terms of his eligibility for international protection, without unambiguously stating what they were. I do not believe that it is unfair to say that this ground is a formulaic invocation of the only statutory basis on which the applicant might hope to overcome the designation of South Africa as a safe country of origin under section 72. 52. Section 33 of the Act of 2015 provides that:- “33. A country that has been designated under section 72 as a safe country of origin shall, for the purposes of the assessment of an application for international protection, be considered to be a safe country of origin in relation to a particular applicant where – (a) the country is the country of origin of the applicant, and (b) the applicant has not submitted any serious grounds for considering the country not to be a safe country of origin in his or her particular circumstances and in terms of his or her eligibility for international protection.” 53. The statement of grounds and the verifying affidavit squarely made the case that it was the two policemen who came to see the applicant in XXXXX who had informed Operation Dudula of his whereabouts and that their action in so doing went beyond simple corruption and was instead assisting in the commission of a hate crime. However, the statement of grounds stopped short of making the case that the corruption extended beyond the two policemen involved, still less that state protection was unavailable to him. 54. In interview on 12th January, 2024 – upwards of two years ago – the applicant expressed his fear of a further attack by Operation Dudula and his apprehension of the reach of that organisation but did not articulate any factual basis for any such fear or apprehension. It seems to me that any such fear was difficult to reconcile with the fact – as reported in the same interview – that in the sixteen months or so since he had left South Africa there had been no attempt by Operation Dudula to contact his child’s mother, still less any threat or intimidation. 55. It was submitted in the High Court that the applicant maintained that he could not seek state protection from the police in South Africa due to his belief that the police were the ones who informed Operation Dudula as to his whereabouts in hiding and, as a result, actively assisted the group in finding and endangering him. The objective fact of the matter, however, was that he never sought state protection and the fact that he told the IPO that it was not his, but Pastor XXXXX’s, decision that he should leave South Africa tends to show that he never addressed his mind to the possibility. Reassessment of the case for an injunction 56. In circumstances in which the High Court appears to have misunderstood the applicant’s argument and a fortiori misstated the burden of proof, I consider that it is incumbent on this Court to decide whether the applicant has made out a real risk of significant harm if he were to be deported. In my firm view, he has not. 57. For all that he claims to be a fugitive from Operational Dudala, there is simply no evidence that anyone other than the police has been looking for him. There is no evidence as to whether the police investigation into the arson attack is continuing. A purported police report from the XXXXX Central Client Service Centre of the South African Police Service date branded for 17th June, 2025 to the effect that the criminal investigation was continuing was submitted to the Tribunal. The Tribunal found that as it was not in a position to verify the authenticity of the report, it could not place any reliance on it and neither the report nor the information in it were relied on for the purposes of the injunction application. However, if the report was genuine, the fact that it was sought and obtained and deployed by the applicant in support of his appeal goes to the question of the availability to him of state protection in South Africa: which he has failed to engage with directly. There is no evidence in support of his professed fears. The professed fears do not extend to a direct threat to his safety from the police. 58. It is evident from the Tribunal decision that the case he made there was that if returned to South Africa the applicant would have nowhere to go other than the house in XXXXX. This question was not addressed in the affidavit grounding his injunction application. By reference to his reporting to the IPO, the applicant was homeless between December, 2016 when he left the address in XXXXX – which appears to have been his mother’s house – and January, 2022, when he moved into the church in XXXXX. On his own case, the applicant was rendered homeless again when the church was burned. He did not list the address of the house in XXXXX as his address. On his own case, he only stayed there for a few days before he was collected and carried away by Pastor XXXXX. 59. The identification in the legal submissions of the mother of the applicant’s child as his partner is not accurate. He was not living with her before or after the child was born. On the evidence, the lady took the applicant in after he was injured in the arson attack on the church, but there is no evidence as to how long – but for the intervening attack on the XXXXX house – it was intended that he might have stayed there. 60. In my view, there is no evidence in support of the assertion that the applicant’s child or her mother would be exposed to danger if he were to return to the house in XXXXX. That apart, if the expressed apprehension is genuine, he would surely not do so. 61. There is no evidence that the applicant has considered his options if he were to be returned to South Africa. I have no doubt but that his deportation would cause him very great disruption but it would be in the nature of the ordinary disruption of being removed from one country to another. It is quite clear that the applicant is vastly better off in Ireland than he was or would be in South Africa, but that is not enough. 62. On the case presented by the applicant, it was not open to him to seek to disaggregate what the Tribunal found to be a well-founded fear of persecution from the availability to him of adequate state protection. 63. The applicant’s professed fear that he would be exposed to a risk of significant harm is unsupported by the evidence. 64. It is common case that significant weight must be attached to the entitlement of the Minister to exercise a significant measure of control of the borders of the State. It is common case that a high weight needs to be placed on the need to respect orders and decisions made in the immigration and asylum process unless and until they are found to be unlawful. It is common case that the quashing of the impugned decision of the Tribunal will not establish a right to remain in the State but rather a right to a rehearing of his appeal. 65. The case has not been made that in the event that effect were to be given to the deportation order, the applicant would be prejudiced in the conduct of his judicial review application. The tentative argument that any rehearing of the applicant’s appeal would be impeded has not been made out. 66. Albeit for different reasons to those given by the judge, I would dismiss the appeal and affirm the order of the High Court refusing the relief sought by the notice of motion. 67. I would list the matter for 10:00 a.m. on Thursday 26th March, 2026 to deal with the question of costs. 68. As this judgment is being delivered electronically the President and Binchy J. have authorised me to say that they agree with it.