The High Court quashed a Refugee Appeals Tribunal decision refusing refugee status to an applicant identified in the judgment as M.T.T.K. and remitted the case for rehearing. The court found that the tribunal had failed to address material parts of the applicant’s claim and had made an unsupported assumption about possible protection in South Africa.
The judicial review concerned the tribunal’s October 2008 decision, which had affirmed an earlier recommendation that the applicant not be granted refugee status. The applicant sought to have that decision quashed and his claim reheard. Mr Justice Kevin Cross delivered judgment on 20 April 2012.
The applicant, who claimed to be a national of the Democratic Republic of Congo, said his father was Congolese and his mother was Rwandan of mixed Tutsi ethnicity. He alleged that authorities in the DRC arrested and tortured him in 2004 because they suspected him of supporting the Rwandan government or militia. He said he escaped during an attack on his place of detention, then was detained in Rwanda before travelling to Ireland. The tribunal had rejected his appeal after finding his account not credible.
The court held that the tribunal had not separately assessed the claimed risk arising from the applicant’s alleged Tutsi ethnicity or perceived links to Rwanda. It rejected the argument that the tribunal’s silence meant those claims should be treated as accepted. The court also declined to decide whether the applicant had that ethnicity or affiliation, saying that was for the tribunal to consider.
The tribunal had said that assessing the situation of failed asylum seekers returning to the DRC was outside its role. The High Court ruled that the tribunal could assess such a claim. It said courts may review whether supporting country information reaches a minimum level of materiality and credibility, while leaving the weighing of qualifying evidence to the tribunal. The court considered material including a UNHCR response advising against forced returns to Kinshasa of people of Banyamulenge ethnic origin. It did not decide whether the applicant belonged to that group or whether he faced a particular risk.
The court also found that the tribunal had gone beyond credibility when it assumed the applicant was entitled to protection in South Africa because he had married a South African citizen. The tribunal had not supported that conclusion by reference to South African law or policy, and the issue had not been put to the applicant.
The court quashed the tribunal’s decision and remitted the matter for rehearing. It said it would hear submissions on an injunction if one was required; the judgment does not record an injunction being granted.