The High Court has granted a woman leave to seek judicial review of a decision refusing her refugee status, finding it substantially arguable that the Refugee Appeals Tribunal assessed her case too narrowly. The court also extended the time for bringing the challenge because the application was only a short period late and the respondents did not object.
The woman, a Burundian national, said her parents were of Hutu and Tutsi ethnicity and that her family had suffered killings connected to its mixed background. She also described fleeing Burundi after an incident involving a captain who, she said, had pursued her mother and later threatened her. The Refugee Applications Commissioner recommended refusing her claim, in part questioning her credibility.
The tribunal affirmed that recommendation in November 2004. It concluded that the woman’s immediate reason for leaving was to escape the captain’s sexual interest, rather than persecution because of her mixed ethnicity. It found no connection, or “nexus”, between the claimed risk and a refugee convention ground.
In her judicial review application, she argued that the tribunal had overlooked the broader circumstances of her claim, made a fundamental factual error and reached an irrational decision. The High Court considered the first two grounds together. It noted that the tribunal made no adverse credibility finding, so the review had to proceed on the basis that her account was substantially true.
The court said a refugee decision-maker must assess the risk at the time of the decision and may need to consider harm to relatives and others connected to an applicant, as well as the applicant’s own experiences. The country information before the tribunal recorded ethnic difficulties in Burundi and fresh fighting in February 2004 that displaced thousands. Although it also described attempts to reduce the conflict, the court said it was not clear that the problems had fully abated.
The judge did not rule that the woman was a refugee. He found it substantially arguable that the tribunal had focused on the immediate cause of her departure and failed to assess her wider account against the country information and family circumstances. The court considered the tribunal’s view of the captain incident rational on its own, and rejected irrationality as a substantial ground for review.
The order grants leave to seek judicial review on the grounds set out in the applicant’s statement, except ground (vii), and extends time. It does not overturn the tribunal’s refusal or decide the underlying refugee claim.