Granting certiorari of entire decision of International Protection Appeals Tribunal is appropriate in the circumstances

By: James Cross BL

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High Court grants an application for certiorari of a decision of the International Protection Appeals Tribunal refusing refugee status, where the application is not opposed by the respondents, but the issue arising is whether the court can and, if so, should, grant partial certiorari, as the applicants seek, or quash the entire decision of the Tribunal, as the respondents assert should occur, with the court determining that granting certiorari of the entire decision is the most appropriate order in the circumstances, but not because the court is unable to ever grant a partial or severed order for certiorari.

International protection and immigration – South African nationals challenging decision refusing them refugee status – feared persecution on grounds of race – whether the Court can quash part of the decision – International Protection Appeals Tribunal agree that decision on State protection was flawed and argue that the full decision should be quashed – the South African nationals seek to have the state protection finding only quashed and to have the matter remitted for rehearing with the existing finding that the applicants have a well- founded fear of persecution in South Africa – argued that the applicant would be caused to suffer distress if she had to give evidence again - satisfied that the court has jurisdiction to make a partial order of certiorari - court’s jurisdiction to grant partial certiorari - Tribunal’s decision - ex nunc hearing of an appeal - Tribunal ought to make its entire decision on an ex nunc basis applying the precise and up-to- date information - absence of medical evidence – not consider the applicant’s anticipated distress, in itself, could merit the partial order of certiorari - not more delayed process than a partial remittal – decision quashed in full –

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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