The High Court has granted a Nigerian asylum applicant leave to seek judicial review of a recommendation that he not be recognised as a refugee, finding substantial grounds to argue that the decision-making process was unfair.
Mr Justice Herbert’s judgment, delivered on 8 May 2008, concerned an application challenging a report by the Refugee Applications Commissioner. The Commissioner had concluded that the applicant had not established a well-founded fear of persecution. The High Court’s ruling was at the leave stage: it did not determine whether the recommendation was invalid or make an order quashing it.
The applicant said he had joined the Niger Delta Political Party and its associated Niger Delta Peoples Volunteer Force, and claimed that members of the Itshekiri ethnic group threatened him and attacked his car. He said he left Warri for Lagos and later Nigeria because he feared for his life. These were his claims, not findings made by the High Court.
The applicant argued that the Commissioner reached adverse credibility conclusions without putting key matters to him. He also challenged reliance on country information about “bunkering” drawn from a Wikipedia extract, which he said had not been disclosed or put to him for response. His counsel further argued that the Commissioner’s conclusions about possible state protection and flight from prosecution rather than persecution lacked evidential support.
The respondents argued that the Commissioner could reach the conclusions on the evidence and that an appeal to the Refugee Appeals Tribunal was a more appropriate remedy. The applicant had lodged an appeal notice, but the judge found he had done so cautiously and had taken no further steps on it; he was therefore not barred from seeking judicial review.
The judge found substantial grounds to contend that the apparent conclusion that state protection was reasonably available lacked sufficient support in the country information before the Commissioner. He also found substantial grounds to argue that the conclusion that the applicant was fleeing prosecution or lawful punishment, rather than persecution based on political opinion, rested on hearsay, speculation and conjecture. The court further found substantial grounds to argue that country information used to form credibility conclusions had not been properly disclosed and put to the applicant.
The judge did not accept, considered alone, that every factual credibility issue had to be put to the applicant. Taken together with the other complaints, however, those issues reinforced the case for leave. The court granted leave to seek judicial review. The judgment did not grant the substantive judicial review remedies sought.