TSS v Refugee Appeals Tribunal

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Respondent/Defendant:Refugee Appeals Tribunal
Court/s:High Court
Citation/s:[2016] IEHC 491
Nature of Proceedings:Judicial Review
Judgment Date/s:29 Jul 2016
Judge:Humphreys R.
Category:Refugee Law
Keywords:Protection (International), Protection (Subsidiary), Refugee
Country of Origin:Zimbabwe
Geographic Focus:Other


The applicant was born in Zimbabwe in 1987. He was the victim of a kidnapping and beatings by government supporters in the Misulongo area. He came to Ireland in June 2008 and applied for asylum. This was refused by the Refugee Applications Commissioner and on appeal by the Refugee Appeals Tribunal. He then applied for subsidiary protection, which was refused by the Commissioner and on appeal by the Tribunal. The Tribunal accepted the applicant’s credibility but found that there was no sufficient forward-looking risk of serious harm, internal relocation to Bulawayo was available, state protection did not need to be considered and there were no compelling reasons arising from past serious harm such as to warrant the grant of subsidiary protection.

The applicant challenged the Tribunal decision by way of judicial review, and in the High Court the Tribunal did not stand over the finding of no risk of serious harm. However, it was argued that because the tribunal found that internal relocation was available, that constituted a free-standing ground on which the application was properly refused. The decision of the High Court therefore focused on the validity of the internal relocation finding.


Humphreys J. held that a valid finding that internal relocation is available must consist of a two-step process. Firstly, in a case where the question of state action could arguably arise, it must identify whether the risk of future harm which exists (or in the case of an alternative finding, is alleged to exist) in fact arises from the state or from non-state actors (“state” actors in this sense including political, military, police or factional entities in power at national level rather than merely state institutions in the strict sense). If the harm emanates from the state, it is to be presumed that the risk will exist throughout the country unless the authority of the state does not run throughout the country. The second step depends on the answer to the first question. If such a presumption arises due to state-sponsored risk, the decision must go on to consider whether it is rebutted in the particular circumstances of the case. For example, persecution by a local branch of a national ruling party may not be likely to be repeated if the person relocates to the capital city, for example. Alternatively, if the presumption does not arise, because the case relates to non-state action or state action where the state does not control the whole territory, the decision-maker must still be satisfied that the risk will not arise in an identified area of the country to which it is reasonable for the applicant to relocate.

As the Tribunal decision in this case did not comply with this two-step test, Humphreys J. concluded that it must be quashed.


Refusal of subsidiary protection quashed.


The decision in TSS is significant as it provides guidance to decision-makers on the two step test that must be applied in protection decisions based on a finding that there is an internal protection alternative.

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