The High Court dismissed an application for leave to seek judicial review of a Refugee Appeals Tribunal decision refusing an asylum recommendation, finding that no substantial ground for granting leave had been made out.
The tribunal decision, issued on 16 September 2008, affirmed a negative recommendation by the Refugee Appeals Commissioner. The anonymised applicant, a native of the Republic of Congo (Brazzaville), said he feared persecution because of his ethnicity and his perceived association with his father’s political activities. The court’s judgment records his claim that his father was a member of UPADS, had been imprisoned and escaped to Ivory Coast, and that his mother and sister had been killed by Cobra Rebels. These were claims before the tribunal, not findings by the High Court.
The applicant argued that the tribunal’s decision was unsafe because it repeatedly referred to him as “DR Congolese” and to the Democratic Republic of Congo, although he was from the Republic of Congo. Justice Cooke accepted that the country was misnamed, but held that the error did not show the tribunal had misunderstood the substance of the claim. The decision’s account of the events, locations and political context related to Congo-Brazzaville. The court concluded that the misnaming was not a material factual error invalidating the tribunal’s decision.
The applicant also relied on a 19-month interval between the tribunal hearing on 15 February 2007 and its decision. The respondents accepted that the delay was excessive. The court held, however, that delay alone did not make the eventual decision unlawful or justify setting it aside without evidence that the delay caused another material defect. A separate judicial review proceeding seeking to compel a decision had been initiated after the applicant gave notice in September 2008, but was overtaken when the tribunal issued its decision.
The court also rejected arguments that the tribunal should have obtained more recent country information and addressed the applicant’s documents, including a claimed arrest warrant and summons. It found that the applicant could have raised changes in political conditions during or after the appeal hearing. Information exhibited to the court showed that UPADS had participated in parliamentary elections in 2007 and gained seats; the court said this did not undermine the tribunal’s central reasoning about the claimed risk. It further noted that the tribunal had referred to the arrest warrant and questioned its significance because the applicant remained in the country for years without apparent action on it.
The ruling concerned only whether leave should be granted for judicial review. The court dismissed that application; it did not conduct a new asylum determination.