The High Court has quashed a Refugee Appeals Tribunal decision rejecting a Nigerian woman’s refugee claim and sent her appeal back for reconsideration by a different tribunal member.
In a judgment delivered on 27 November 2015, Ms Justice Stewart found that the tribunal had not properly dealt with complaints about the first-stage interview and had not given adequate reasons for rejecting the woman’s account of alleged sexual assault.
The case was a judicial review of a tribunal decision dated 5 March 2013, which had affirmed the Refugee Applications Commissioner’s negative recommendation. The woman sought to have that decision quashed and her appeal reconsidered.
The applicant, whose name is anonymised in the judgment, said she was raped in Nigeria and gave birth to a son in 2005. She also said she had a relationship with a female friend, and that community youths later sought her out with cutlasses. These were her claims, rather than findings made by the High Court.
At her initial application in 2008, an authorised officer did not accept that she was a minor. She was interviewed without a guardian or legal representative. The commissioner rejected her claim, citing credibility concerns and the possibility of state protection in Nigeria. The tribunal later relied heavily on the first interview in rejecting her appeal, finding serious credibility issues in her account of her sexual orientation and alleged abuse.
The applicant argued that the tribunal had failed to address her objections to the interview process, including her claimed age and lack of a guardian, and had inadequately considered her further claim concerning sexual assault as a child. The respondents argued that the tribunal was required by law to consider the original interview and report, and that the woman was legally represented at the later tribunal hearing.
Justice Stewart said the tribunal had to consider the interview and report, but was not required to adopt their contents or findings. Because the applicant had challenged the interview documents, the tribunal should have addressed that complaint when assessing their weight. The judge also said the applicant’s account of sexual orientation had to be considered in the context of her age and cultural background, and described the tribunal’s use of “ignorant” as unhelpful.
The judgment said the tribunal’s treatment of the sexual assault claim did not explain why the applicant’s evidence was disregarded. The court did not decide whether the alleged assault occurred or whether the applicant qualified for refugee status. Those matters were for the tribunal to reconsider.
The High Court granted leave and, following the telescoped hearing, made an order of certiorari quashing the tribunal decision and remitting the matter to a separate tribunal member for reconsideration.