The High Court granted an Afghan teenager leave to seek judicial review of the Refugee Appeals Tribunal’s rejection of his asylum appeal, but only on a limited ground concerning his claimed risk of trafficking. The court stressed that its decision went no further than finding arguable and substantial grounds at the leave stage.
The applicant, identified in the judgment as M. S., sought to quash the Tribunal’s decision of 8 November 2007. He had applied for asylum in January 2005. His account was that enemies of his father, whom he said was associated with Hizb-I-Islami, threatened his family. He said he was separated from them while leaving Afghanistan and had not seen them since. These were his allegations, not findings made by the High Court.
The Refugee Appeals Tribunal rejected his appeal after a hearing in August 2007. It found his credibility undermined by his failure to mention earlier that his cousin had been killed. It also concluded that he had no political involvement and would not face a greater trafficking risk than other children returning to Afghanistan. The Tribunal noted government efforts to combat trafficking.
The applicant argued that the Tribunal had not properly considered material from his guardian ad litem, including his vulnerability and lack of family support, and had relied on country information about former Hizb-I-Islami members. The respondents maintained that the guardian’s letter had been considered, the credibility finding was for the Tribunal to make, and trafficking risk alone did not establish refugee status without a link to a Refugee Convention ground.
The High Court rejected the challenges concerning consideration of the guardian’s material and the credibility assessment. It also found no arguable ground based on the Tribunal’s use of information about former party members, given that the applicant himself was not a member. The court did not set aside the Tribunal’s decision or decide whether the applicant qualified as a refugee.
On trafficking, however, the court found an arguable question that the Tribunal had treated the risk as indiscriminate without assessing whether an unaccompanied young person without family or community support might face particular risk as a member of a particular social group. It also noted the absence of express consideration of whether children in Afghanistan could themselves constitute such a group at an unacceptably high level of risk.
The court granted leave to seek the specified relief on that trafficking-related ground. The judgment did not determine the eventual judicial review or direct that refugee status be granted.