The High Court has quashed a Refugee Appeals Tribunal decision rejecting an Afghan man’s asylum appeal and ordered the case to be reconsidered from the beginning by a different tribunal member.
In a judgment delivered on 20 January 2015, Ms Justice Stewart said the tribunal had not properly considered documents submitted by the applicant after an earlier decision by the Refugee Applications Commissioner. The court found the documents were personal to the applicant and were, on their face, capable of supporting his account.
The applicant said he feared persecution in Afghanistan because authorities attributed the political views of Hezb-e-Islami to him. He claimed his father and brother were associated with the party, and that his brother had been abducted. Documents later provided to the tribunal included identity cards and a document that named the applicant and his brother in connection with alleged terrorist activities and called for their arrest.
The tribunal rejected the appeal in 2011, finding the applicant’s account not generally credible. The respondents argued in the judicial review that the tribunal had considered the documents and was entitled to decide what weight to give them. They also said an error in the tribunal’s account of an alleged abduction was a typographical mistake without material effect.
Justice Stewart found that the tribunal had relied too heavily on the Commissioner’s earlier report, which had been prepared before the documents were available. She also found a material factual error: the tribunal referred to the applicant’s mother as having been abducted, although the questionnaire repeatedly referred to his brother’s abduction. The court said the error affected the tribunal’s assessment of the applicant’s account.
The judge further found that the tribunal had misunderstood the claim by treating the applicant’s lack of membership in Hezb-e-Islami as a reason he would not be at risk, when his case was based on imputed political opinion. The tribunal’s treatment of internal relocation also failed to address the later documents alleging that state authorities sought the applicant’s arrest. The court additionally found an error of law in the tribunal’s approach to the applicant’s failure to seek asylum in an earlier safe country.
The proceedings were brought outside the 14-day time limit. The respondents did not object to an extension, and the judge accepted there were good and sufficient reasons to extend time.
Justice Stewart said she would grant leave and an order of certiorari quashing the tribunal decision dated 5 April 2011. She also ordered the matter remitted for reconsideration de novo by a different tribunal member. The judgment did not decide whether the applicant qualified for refugee status.