The High Court has rejected an application for judicial review by an anonymised asylum applicant seeking to quash a report that recommended refusing her refugee application. Mr Justice Cooke ruled on 30 April 2009 that the applicant should pursue her appeal to the Refugee Appeals Tribunal, which had been left in abeyance pending the judicial review.
The Commissioner’s report, dated 15 December 2006, concluded that the applicant had not established a well-founded fear of persecution. The account summarised in the judgment said she married her husband and had a child with him in 1997. She said her problems began in 2004, after discovering he was already married. She alleged that children from his earlier marriage threatened her, that the eldest was involved in a student cult, and that he and his associates set fire to her house. She said police arrested him but released him after three days, and that police would not protect her because they feared student cults.
The applicant challenged the report on two grounds. She argued that the Commissioner had not properly addressed factors listed in section 11B of the Refugee Act 1996, and that country information about student cults in Nigeria was used to assess her credibility without being put to her at interview. The Minister did not dispute that the information had not been disclosed during the interview; it was provided with the report.
The Court said the central question was whether the alleged non-disclosure made the statutory appeal inadequate to remedy the problem. It distinguished the Commissioner’s investigative role from the Tribunal’s adversarial appeal process. An appeal would allow the applicant to give evidence again, challenge the credibility assessment and provide new country information.
Justice Cooke said specific information contradicting personal facts might need to be put to an applicant before a report was finalised. But he found that the document in this case addressed general conditions relating to student cults. It confirmed their existence and nature and was one of several factors in the Commissioner’s credibility assessment. The applicant could challenge that assessment on appeal.
On section 11B, the Court rejected the argument that every listed factor had to be addressed one by one in each report. It said the report’s standard statement that section 11B had been considered was not, by itself, what determined validity. A challenge had to identify a relevant factor, document, evidence or information that was available to the Commissioner but allegedly not considered. The judgment said no serious attempt had been made to identify such factors in this case.
The Court rejected the application. It did not determine the asylum claim on its merits or decide the appeal before the Tribunal.