The High Court refused a Romanian woman leave to seek judicial review of a Refugee Appeals Tribunal decision refusing her refugee status, finding she had not established substantial grounds to challenge the decision. It also rejected her constitutional challenge to a law governing whether the Tribunal directs witnesses to attend, finding she had not shown the standing required to bring it.
In a judgment delivered on 29 April 2005, Gilligan J said the woman’s asylum appeal had been dismissed after the Tribunal member found she had not established an objective basis for her claimed fear of persecution as a member of the Roma community. Her account included a 1996 house fire, which she suspected was caused by a petrol bomb, and claims of discrimination in housing, work and healthcare in Romania. The Tribunal member noted there was no evidence that the fire was deliberate or that her difficulties resulted from ethnic persecution. A newspaper submitted with her husband’s application attributed the fire to a gas heater, according to the judgment.
The woman sought leave to have the Tribunal decision quashed and to challenge the constitutionality of section 16(11)(a)(i) of the Refugee Act 1996. Her grounds included claims that the Tribunal member had not properly assessed her fear or evidence, and that her husband should have been called as a witness. The respondents argued that her evidence and her solicitor’s affidavit did not support the substantial-grounds threshold for judicial review.
The judge said the Tribunal member had considered both the woman’s account and country-of-origin information. Given the evidence before the Tribunal, he was not satisfied its conclusion was clearly irrational or unreasonable. The court’s role at this stage was to decide whether there were substantial grounds for challenging the decision; it did not rehear the asylum claim or itself determine refugee status.
On the witness issue, the judge said the appeal notice listed the woman’s husband as a proposed witness, but there was no evidence that the Tribunal had refused a request to direct his attendance, what evidence he would have given, or whether his attendance had been sought at the hearing. The judgment said he could have attended voluntarily and an application could have been made to hear his evidence. The judge found no departure from constitutional justice on the evidence before him.
The judge also found the woman had not shown she was adversely affected by the statutory provision, which gives the Tribunal discretion to direct a witness to attend. He refused the reliefs sought: leave to seek certiorari and the constitutional challenge.