The High Court has quashed a negative asylum recommendation after finding that the Refugee Applications Commissioner failed to properly investigate whether an anonymised applicant could obtain Mozambican nationality through his father.
In a judgment delivered on 29 July 2009, Ms Justice M. H. Clark ordered the case to be returned to the Office of the Refugee Applications Commissioner (ORAC) for a fresh evaluation by a new authorised officer. The court did not decide whether the applicant was entitled to refugee status or whether he was a Mozambican national.
The applicant sought judicial review of ORAC’s recommendation that he should not receive refugee status. He said he was Zimbabwean and had been tortured there because of his opposition political and trade union activities. ORAC accepted that he had been tortured, but concluded that Mozambique could provide protection because he was, or could become, a Mozambican national through his own or his father’s origins.
The court considered whether ORAC had breached fair procedures. It rejected the complaint that the officer had improperly relied on a citizenship-law document that had not been disclosed to the applicant: the applicant had already submitted material with substantially similar nationality provisions, and the court found no prejudice on that point.
The central issue was the lack of inquiry into how the applicant or his father might acquire or reacquire Mozambican nationality. At interview, the applicant was asked why he had not claimed nationality through his father, whose birthplace was recorded as Mozambique on some family birth certificates. He replied that his father was born there but was a Zimbabwean national. ORAC did not ask further questions about the father’s nationality or whether he could obtain Mozambican citizenship.
Justice Clark said that if the officer believed the applicant’s potential access to Mozambican nationality defeated his claim to protection, the issue needed to be explored. The court said the applicant might have explained why he or his father could not obtain or reacquire that nationality, or why doing so would be unsafe. Because the nationality question formed the basis of the negative recommendation, the lack of inquiry was a fundamental flaw and breach of fair procedures.
The court also considered whether a paper-based appeal could remedy the defect. It concluded that it might not: the applicant could be required to address complex nationality and credibility questions for the first time on appeal, without an oral opportunity to explain discrepancies. The High Court therefore found certiorari appropriate and quashed the 5 February 2008 decision, directing ORAC to reconsider the case through a fresh evaluation by a new officer.