N v The International Protection Appeals Tribunal and Anor

THE HIGH COURT JUDICIAL REVIEW [2026] IEHC 212 Record No. 2025/1339JR BETWEEN N APPLICANT AND THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL and THE MINISTER FOR JUSTICE, HOME AFFAIRS AND MIGRATION RESPONDENTS JUDGMENT of Ms Justice Miriam O’Regan, delivered on the 14th day of April 2026. Introduction 1. The within judicial review proceedings come before the Court on foot of a Statement of Grounds of 8 September 2025 wherein the applicant is seeking to quash a decision of the first named applicant (“IPAT”) dated 8 August 2025 and issued on 12 August 2025 wherein IPAT confirmed the first instance refusal of 29 February 2024 to afford the applicant international protection status in Ireland (“the Decision”). 2 2. Following the refusal decision of IPO on 29 February 2024 the applicant appealed on 11 March 2024 and subsequently submitted written submissions of February 2025 in respect of the appeal. 3. Various legal grounds are set out in the Statement of Grounds to support condemning the Decision of 8 August 2025. However, at the hearing of the matter the applicant confirmed that the legal grounds identified in para. E(2) of the Statement of Grounds comprise the basis for the relief claimed. This paragraph provides: – “The analysis of state protection carried out by the first respondent was unlawful and/or inadequately reasoned. Said analysis did not comply with section 31 of the 2015 Act or Article 7 of Directive 2004/83/EC.… There was no, or insufficient, consideration of whether the protection was effective in practical terms and undue weight was attributed to the existence of anticorruption bodies operating in South Africa.” 4. The basis for seeking international protection by the applicant was that he was the victim of two xenophobic attacks in South Africa and further he believed that the second attack was assisted by the police force who the applicant believes identified his whereabouts to members of Operation Dudula, an anti-migrant group, who then carried out the second xenophobic attack. 5. Although the applicant was born in Zimbabwe on 21 November 1988, he is a South African citizen. 6. In the impugned decision it was accepted that the applicant was South African and suffered from two xenophobic attacks in South Africa and further found that if returned to South Africa there was a reasonable chance of further persecution so that the applicant had a well-founded fear of such persecution or serious harm if returned. However, IPAT was satisfied that there was adequate state protection available to the applicant in South Africa including by reason of South Africa being designated safe country of origin. The Impugned Decision 3 7. Insofar as whether or not IPAT accepted the allegation of police corruption, it is not specified clearly in the Decision nevertheless in submissions on behalf of IPAT it is argued that by reason of reference in the Decision to “alleged” police corruption it is clear that IPAT did not accept the applicant's allegations in this regard. That having been said however, it is noted that after mention of “alleged” police corruption within the Decision, the decision-maker made substantial reference to ten separate bodies that are available in South Africa to investigate and deal with police corruption there. In the Court’s view, if indeed IPAT did not accept the allegation of police corruption then there was no necessity to further deal with the manner in which the applicant might avoid persecution based on police corruption in the future and/or deal with country of origin information (“COI”) in this regard. Submissions of the Parties 8. The applicant points to the fact that it is not for the respondent in submissions to the court to indicate that IPAT did not accept the allegation of police corruption when the Decision itself did not make any clear statement in this regard. The Decision is far from clear in relation to this aspect of the Applicant’s claim. 9. In resisting the applicant's argument as to the deficiencies in this Decision the respondents have referred to the IPO decision of 29 February 2024 wherein reference to COI was included in or about coming to its determination that the applicant might be returned to South Africa. The IPO decision refers to the relevant COI as to xenophobia in three separate portions of its decision namely: (1) In the last sub paragraph of paragraph number one of IPO decision it is stated: – “Under section 72 of the International Protection Act 2015 and the International Protection Act 2015 (Safe Countries of Origin) Order [2018] (no. 121 of 2018), the Minister for Justice has designated certain countries as safe countries of origin. South Africa is one of these countries. As a result, the applicant's country of origin will be considered to be a safe country of origin in relation to their application where the applicant does not submit any serious 4 grounds for considering the country not to be a safe country of origin in their particular circumstances and in terms of their eligibility for international protection.” (2) At page 14 of 27 it is recorded “The US Department of State 2022 Country Report on Human Rights Practices: South Africa describes the pattern of the xenophobic violence in the country: ' the country experienced more than 1500 incidents of vigilantism and mob violence, including xenophobic and anti-crime vigilantism, often targeting Zimbabwean migrants. These attacks led to more than 200 fatalities and hundreds of injuries between January and September. Police were sometimes involved in the violence; however, more frequently, police were accused of condoning violence, particularly, xenophobic, vigilantism or political violence.’ Shenilla Mohammed, Executive Director of Amnesty International South Africa, stated in April, ‘this ongoing violence also highlights the inaction of police and a lack of political will within government to address the problem. In each case, the deaths of locals and migrants were entirely preventable.’” (3) At page 16 of 27 under the heading of ‘persecution and objective bases' within the IPO decision the following statement is included in respect of the applicant's fear that he will be killed by Operation Dudula if he returns to South Africa: – “Amnesty International's report The State of the World’s Human Rights South Africa 2022 states as follows: ‘sporadic xenophobic attacks continued throughout the year and led to the killing of a Zimbabwe national… He was burnt to death in… a township north of Johannesburg, after he failed to present proof of his identity to vigilante groups who demanded it. Seven men were arrested in connection with his death and granted bail. The case continued to be postponed. Migrants in the area reported living in constant fear. An anti- migrant movement, Operation Dudula which emerged in ... 2021 was launched in other provinces.’” The respondent during the hearing also referred to a further extract from COI on South Africa, namely South Africa 2022 Human Rights Report Executive Summary published by the US Department of State which contains the 5 following additional detail not included in the IPO decision and quoted above as follows: – “The Government sometimes responded quickly and decisively to xenophobic incidents, sending police and soldiers into affected communities to quell violence and restore order, but responses were sporadic and often slow and inadequate. Civil society organisations criticised the Government for failing to address the causes of violence, for not facilitating opportunities for conflict resolution in affected communities, for failing to protect the property or livelihoods of foreign nationals, and for failing to deter such attacks by vigorous investigation and prosecution of perpetrators….The anti-immigration group Operation Dudala, which was created during the riots in July 2021, was able to organise and mobilise quickly and escalated the pace of its demonstrations and attacks, particularly in Soweto and Johannesburg.” 10. In s.31 of the International Protection Act 2015 (“the 2015 Act”) it is provided that protection against persecution or serious harm:- “(a) must be effective and have a non-temporary nature; (b) shall be regarded as being generally provided where inter alia the State takes reasonable steps to prevent the persecution or suffering from serious harm including the operating of an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm and (c)the applicant has access to such protection.” 11. Section 33 of the 2015 Act provides: – “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 only where… (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.” 12. In the section of the impugned decision dealing with assessment of facts and circumstances and in particular from p.12 of the said decision the respondent points to a 6 heading entitled “that the applicant could not access effective state protection against the attacks and threats from xenophobic gangs when he was living in South Africa”, there follows three separate paragraphs, namely paragraphs 34.12, 34.13 and 34.14, prior to the next heading. It is not disputed that paragraphs 34.13 and 34.14 do not deal with xenophobic attacks at all but rather police corruption. Furthermore, the respondent is unable to rely on the full paragraph 34.12 as the third sentence thereof, being the most substantial sentence within paragraph 34.12, relates only to police corruption. Accordingly, the following two sentences comprise the only basis within the impugned decision upon which the respondent is able to point to support a consideration of state protection from xenophobic gangs and to establish that it had before it sufficient information to make the finding in the Decision vis-à-vis state protection from xenophobic attacks: – “The Tribunal is satisfied from the COI available to it, and also as has been set out extensively in both the body of the section 39 report of the IPO and in the references appended thereto, that proper state protections were and are available to the appellant in South Africa.” The applicant argues that these sentences in fact also refer to the allegation of police corruption. 13. The applicant does not argue that specific stand-alone consideration must be given to either s.31 or s.33 of the 2015 Act aforesaid but rather looking at the Decision in the round the consideration of both s.31 and s.33 should be incorporated. Neither does the applicant argue that there was any lapse by the decision-maker in taking into account the designation of South Africa as a safe country of origin. 14. The respondent suggests that after the first xenophobic attack the applicant did report same to the police and following same the police did communicate with the applicant to investigate the matter and took a statement. In this regard the applicant points to the fact that the respondent, according to submissions, appears to be satisfied with the veracity of the applicant’s statement to the effect that he did make a report in respect of the first attack and the 7 police did communicate with him including by taking a statement from him but does not accept the balance of the applicant’s statement with regard to this incident where the applicant complained that a short time following the police attending at the property where the applicant was then staying such property was attacked by Operation Dudula. Discussion 15. Assuming that IPAT did accept a portion of the applicant’s statement in respect of the involvement with the police but not the portion where it was asserted there was police corruption, it should be borne in mind that such understanding emanates from submissions and is not clear from a reading of the Decision itself that the decision-maker did not accept the police corruption allegations notwithstanding that reference is made in the body of the Decision to “alleged” police corruption. In the impugned decision, in dealing with state protection from xenophobic attacks reliance is placed on the COI quoted above and COI in respect of steps taken to deal with police corruption. 16. In my view the height of the COI basis the Respondent could point to support it’s finding that there is adequate State protection from xenophobic attacks is that contained in: (a) the South Africa 2022 Human Rights Report published by the US Department of State where it was said: – “The Government sometimes responded quickly and decisively to xenophobic incidents, sending police and soldiers into affected communities to quell violence and restore order, but responses were sporadic and often slow and inadequate.” And (b) the Amnesty International 2022 report identified in the IPO determination at page 16 of 27 where it is recorded that 7 men were arrested and granted bail in respect of the burning of a Zimbabwean national. 8 without any engagement with the provisions of s.31, either explicitly or by implication notwithstanding that the content of the quotations relied on does not app support s.31 compliance. 17. In ZM and NG v IPAT and the Minister for Justice [2025] IECA 208 (relied on by both parties) Butler J considered, among other matters, the level of protection required under s. 31 of the 2015 Act to be considered satisfactory for the purpose of establishing a safe country of origin for a relevant applicant. The Court noted that although s.31 was not in identical terms to Article 7 of E.U. Directive 2004/83/EC (“the Qualifying Directive”) this difference arose because s.31 also had regard to jurisprudence from the CJEU since the implementation of the qualifying directive. In paragraphs 123 et seq the Court noted that no absolute guarantee was required but rather reasonable protection in practical terms/a minimal level of law and order/capacity and willingness to prevent persecution. Reasonable steps must be reasonably effective. 18. In written and oral submissions, the Respondent argued that the decision-maker examined what was submitted and gave reasons why the applicant had not established an absence of state protection. However, it seems from the first two sentences of para. 34.12 reasons as such are left to a review of the COI, without engagement, discussion or explanation as to how the extracts (quoted above) demonstrated “proper state protections were and are available to the Applicant”. 19. There is no engagement with the literature relied on which identified the sporadic nature of the interventions and the fact that often such sporadic intervention is often slow and inadequate. There is no discussion on the threshold requirement under s.31 or Art 7. In my view COI relied on, without more, cannot be said to support the threshold requirement of s.31. 9 20. In the circumstances I am satisfied that the applicant is entitled to an order of certiorari in respect of the Decision of 8 August 2025 which issued on 12 August 2025 on the grounds set forth in para. E(2) of the Statement of Grounds. Costs 21. As this judgment is being delivered electronically, I shall address the issue of costs. Given the applicant has been entirely successful, it is my provisional view that he should be entitled to his costs, to be adjudicated in default of agreement. As the parties have not had an opportunity to make submissions as to costs, I shall allow the Respondents to make written submissions of not more than 1,000 words within ten days of this judgment being delivered, should they disagree with the order proposed. If such submissions are made, filed and served within that 10 day period, the Applicant shall be entitled to make, file and serve submissions in response, of not more than 1,000 words. In default of such submissions being filed, the proposed order will be made.