The High Court has granted a minor applicant leave to seek judicial review of a Refugee Appeals Tribunal decision recommending that he be refused refugee status. The court found substantial grounds on two issues: whether discrimination could amount to persecution through its cumulative effects, and whether the Tribunal materially relied on UNHCR guidance about returns to Kosovo when the applicant’s country of origin was Serbia.
The judgment, delivered by Ms Justice Elizabeth Dunne on 31 May 2011, concerns a Tribunal decision notified on 25 August 2009. The applicant, born in the State in 2006, is identified as E.D., suing through his father and next friend, G.D. His parents are described in the judgment as Albanian-speakers from Serbia and members of the Ashkali ethnic group.
The Refugee Applications Commissioner recommended refusing the application in June 2008. On appeal, the applicant submitted country information alleging severe discrimination against the group in Serbia, including barriers to education, healthcare, housing, employment and identity documents, as well as exposure to attacks and poor living conditions. The Tribunal upheld the negative recommendation, finding it was not persuaded that possible discrimination on return would reach the level of persecution.
In the judicial review proceedings, the applicant argued that the Tribunal had failed to assess whether multiple discriminatory measures could cumulatively amount to persecution, including under principles discussed in the UNHCR Handbook and a book by Professor James Hathaway. The applicant also argued that the Tribunal had misstated UNHCR guidance: the guidance cited concerned Kosovo, not Serbia, and, the applicant submitted, was tied to circumstances in Kosovo that did not apply to Serbia.
The respondents argued that the assessment and weight given to country information were for the Tribunal, that its decision had a clear basis, and that the Kosovo reference did not underpin the decision, which they said concerned Roma in Serbia.
Justice Dunne did not decide whether the Tribunal’s decision was unlawful or whether the applicant qualified for refugee status. At this leave stage, she held that substantial grounds had been raised to challenge the Tribunal’s treatment of cumulative discrimination and to question whether reliance on the Kosovo guidance was a material error going to the heart of the decision.
The proceedings had been brought about a week outside the statutory time limit. The judgment records that the respondents would not oppose an extension if the court found substantial grounds. The court granted leave on the grounds relied on; it did not quash the Tribunal decision or make a final determination of the judicial review.