The High Court has refused an applicant leave to seek judicial review of a negative asylum recommendation, finding that the disputed credibility evidence could be reconsidered in his pending appeal.
Mr Justice Cooke delivered the judgment on 25 June 2010. The applicant, identified in the judgment as F. M. J., had sought leave to challenge a report dated 23 April 2008 and a negative recommendation dated the following day by officers of the Refugee Applications Commissioner (RAC).
The RAC’s assessment relied on the applicant’s answers about Somalia and on a linguistic analysis by Sprakab, a Scandinavian language analysis undertaking. The RAC concluded that he was not credible in saying he came from Somalia and spoke the Bajuni dialect of Swahili, and that his language indicated he came from Kenya. The applicant’s representatives disputed the analysis, including the interviewer’s ability to speak Bajuni, the interpretation of the recording and the report’s comments on his knowledge of country and culture. They also argued that the applicant had been unable to respond to the analysis using the interview recording before the RAC made its recommendation.
The court said the application concerned the assessment of credibility, a matter for the RAC and the Refugee Appeals Tribunal (RAT) in the asylum process, rather than the High Court on judicial review. It described the language analysis as evidence whose probative value, authors’ qualifications and contents could be challenged; it rejected the claim that the report was inadmissible.
The judge found that the applicant had been given an opportunity to make submissions on the Sprakab report and had done so. The fact that he might have made different or better submissions if the recording had been available earlier did not, in the court’s view, invalidate the RAC report. The court also held that the RAC had given clear reasons for its credibility conclusion, while whether those reasons were mistaken or legally flawed was a separate question.
The judgment said the pending RAT appeal was a full appeal on fact and law. At an oral hearing, the applicant could challenge the language report, offer his own expert evidence and seek a fresh assessment of credibility. The court therefore concluded that the case did not warrant exceptional intervention before the appeal was completed. It refused leave to apply for judicial review. As a result, it did not consider the separate issue of whether there was sufficient reason to extend the time for bringing the application by about eight weeks.