The High Court has refused an anonymised applicant leave to seek judicial review of a Refugee Appeals Tribunal decision that upheld a recommendation against granting him refugee status. The court did not decide the application for an extension of time, saying it did not fall to be determined after leave was refused.
The applicant, who said he was a national of the Democratic Republic of Congo, argued that the tribunal member had wrongly refused his legal representative permission to question or cross-examine the presenting officer at an oral appeal hearing. He said this breached fair procedures and the 2003 Refugee Appeals Regulations.
The respondent disputed that account. It argued there was no reliable evidence that a request had been made or refused, noting that the Refugee Legal Service caseworker’s attendance note did not record one. The court had allowed time for an affidavit from that caseworker clarifying what happened, but was told the caseworker could not be contacted despite two adjournments.
The court also noted that the applicant’s affidavit was in English, although he said he spoke Lingala and French, and that no translation affidavit had been provided. There was also no affidavit from the interpreter at the tribunal hearing confirming that counsel’s alleged request had been translated to the applicant.
The judge said the record did not show that the applicant’s representative had explained what cross-examination might achieve. The presenting officer was not the official who conducted the asylum interview or prepared the negative recommendation, was not called as a witness and gave no direct evidence. Referring to an earlier case, the court said the tribunal member could control questioning and refuse to cross-examine someone who was not a witness.
The court was not satisfied that the alleged refusal had prejudiced the applicant. It noted that the tribunal appeal had failed on credibility concerns recorded in the tribunal decision, which the applicant did not seek leave to challenge. The court found no substantial grounds for judicial review and refused leave. It therefore did not determine whether the proceedings, issued outside the statutory 14-day period, should receive an extension of time.