The High Court refused to quash a decision refusing refugee status to F.V., despite finding that the Refugee Appeals Tribunal (RAT) had made a technical error about its jurisdiction to consider refoulement.
In a judgment delivered on 28 May 2009, Ms Justice Irvine said the RAT was generally required to consider matters relevant to whether an asylum seeker’s fear of persecution could bring them within the refugee definition. That included matters that could later be relevant to the Minister’s assessment of whether deportation would breach the prohibition on refoulement.
The case concerned the RAT’s 10 April 2008 decision affirming the earlier negative recommendation of the Office of the Refugee Applications Commissioner. The applicant sought certiorari to quash that decision and an order remitting his claim for rehearing. The challenge was limited to whether the RAT had properly considered his claim that he would face persecution in Togo as a failed asylum seeker.
The applicant claimed he had been active in Togo’s opposition party and had been arrested and tortured after the 2005 election. The RAT rejected key parts of that account, including his claimed political activity, detention and ill-treatment. It also made adverse findings about his credibility. The High Court did not revisit those findings in this judicial review.
The judge found that the RAT member’s statement that “refoulement is not within the remit of the RAT” misconstrued the tribunal’s general jurisdiction. However, the court considered whether the applicant’s claimed fear, if accepted, could establish a well-founded fear of persecution for a Convention reason. It concluded that failed asylum seekers as a group do not necessarily share a particular political opinion or qualify as a social group. A clear Convention connection would still be required.
The court reviewed country information submitted to the RAT, including reports about arrests and risks to returnees. It was not satisfied the material showed that failed asylum seekers who were not known, active opposition supporters faced a real risk of persecution in Togo for a Convention reason. The judge also noted the RAT had received the documents and heard the submissions about this claim; its jurisdiction error had not excluded evidence or shortened the hearing.
The court concluded that considering the claim expressly would not have changed the outcome. It found no prejudice or injustice from the technical error and held that quashing the decision would serve no useful purpose. The requested relief was refused. The judgment did not grant refugee status or order a rehearing.