The High Court has ruled that an asylum applicant whose claim was rejected mainly on credibility grounds must have access to an oral appeal hearing where the hearing would otherwise be lost solely because the applicant is from a designated safe country of origin.
In a judgment delivered on 30 March 2012, Mr Justice Cooke answered a preliminary issue in favour of S.U.N., a South African national. The court held that excluding an oral rehearing in those circumstances would make the appeal remedy ineffective under the EU Procedures Directive and render the procedure unfair under Article 40.3 of the Constitution.
S.U.N. arrived in Ireland in November 2006 and later claimed asylum. He said he feared persecution in South Africa because he belonged to the Venda ethnic group and that he and his family had been targeted by a criminal gang whose members were Zulu. He also said state protection was unavailable.
A Refugee Applications Commissioner report dated 26 September 2007 recommended that he not be declared a refugee. The report rejected his account as not credible and said he had not shown that he could not obtain state protection. It also expressly found that he was a national of a safe country of origin. Under the statutory scheme, that finding removed the right to request an oral hearing on appeal to the Refugee Appeals Tribunal.
The court concluded that the Commissioner had discretion over whether to include a statutory finding that triggers the loss of an oral hearing. Where the negative recommendation rests exclusively or predominantly on personal credibility, the court said, that finding should not be included if doing so would deny an oral appeal hearing. It reasoned that personal truthfulness may be difficult to reassess from written material alone, and nationality has no necessary connection to whether a hearing is needed to assess credibility.
The judgment concerned a preliminary issue in judicial review proceedings. The applicant had also been granted leave to challenge the safe-country designation of South Africa and the relevant legislation. The court did not make a final order quashing the report, invalidate the designation, or decide those remaining matters in this judgment. It said the parties would be heard on whether its preliminary findings were sufficient for a final order or whether further issues or consequential matters remained.