The High Court has granted M.D.A. leave to pursue a judicial review of a Refugee Appeals Tribunal recommendation to refuse his application for refugee status, but only on three grounds. The court did not decide whether the recommendation was lawful or determine M.D.A.’s entitlement to refugee status.
In a judgment delivered on 20 July 2009, Ms Justice Mary Irvine also extended the time for bringing the proceedings. The application had been issued eight days outside the statutory period. She said the short delay, the potential strength of the claim and the respondents’ position justified an extension.
M.D.A., a national of Togo, said he feared persecution because the authorities would impute an opposition political opinion to him. He alleged that he was caught up in election-related violence in Bé, mistaken for a demonstrator, detained by soldiers and later sought by the authorities over a soldier’s injury. The Tribunal found his account consistent and coherent but concluded that the evidence did not establish an objectively justified fear of persecution.
The court held that M.D.A. had an arguable case that the appeal should not have proceeded without a representative of the Refugee Applications Commissioner, particularly after he objected. It also found an arguable case that the Tribunal had failed to consider country information about the risk to returned failed asylum seekers without an imputed political opinion. The judgment noted that the Tribunal had before it an Amnesty International report referring to returned asylum seekers being arrested in Togo.
A third permitted ground concerns the Tribunal’s finding that two parts of M.D.A.’s account were inconsistent: that his home had not been raided because he had no political affiliations, and that authorities sought him simply because he lived in Bé. The court said it was arguable that this finding was factually wrong and may have affected the decision.
The judge rejected arguments that the Tribunal applied the wrong standard of proof, relied on instinct, failed to consider material facts, or was shown to have disregarded the earlier Tribunal decisions submitted on appeal. She also rejected the claim that references to possible judicial review proceedings affected the Tribunal member’s decision, and found no arguable case of breach of natural justice or fair procedures.
The ruling grants leave to seek the relief claimed in the notice of motion solely on the three specified grounds. It is a preliminary permission decision; the judgment does not quash the Tribunal recommendation.