The High Court granted Nelly Mokili Biti limited leave to seek judicial review of a decision upholding the refusal of her application for refugee status. The ruling, delivered by Ms Justice Finlay Geoghegan on 24 January 2005, did not determine the judicial review itself or quash the tribunal decision.
The challenge concerns a Refugee Appeals Tribunal decision dated 22 March 2004. The applicant, a national of the Democratic Republic of the Congo, said her claim was connected to the arrests, imprisonment, beatings and torture her husband had suffered after authorities suspected him of involvement with or providing information to rebel forces. She said she had been threatened and verbally abused during his arrests. Her husband had received refugee status at first instance in 2002.
The applicant’s appeal hearing was held on 7 January 2003, after an earlier hearing was adjourned because the presenting officer was unavailable. Her husband, who had been present for the earlier date, could not attend the rescheduled hearing because of illness. The High Court found substantial grounds to allow a challenge alleging that refusing an adjournment breached fair procedures, given the importance of his evidence to her claim.
The court also allowed challenges based on the time taken to issue the tribunal decision and its use of country information. The decision came about 15 months after the oral hearing. The judge said there were substantial grounds to argue that the delay could make the decision unsafe because the applicant’s claim required careful scrutiny of her account of past events and fears. The court noted that no transcript was taken of the tribunal hearing.
The tribunal had sent the applicant’s solicitors country information dated from July to December 2003 and invited submissions. After the applicant objected, the tribunal explained its approach and offered a further opportunity to make written or oral submissions. The applicant’s representatives sent brief written submissions and declined the invitation to make oral submissions. The High Court rejected the grounds alleging that this process was unfair.
However, the judge allowed a challenge concerning the tribunal’s failure to consider information after 9 December 2003 about political issues, events and the peace process in the Congo. The decision was issued more than three months later and relied on changes said to have occurred in 2003. The judge found substantial grounds to argue that the tribunal should have checked whether those changes were continuing.
Leave was refused on other grounds, including an allegation that interruptions at the hearing prevented the applicant’s lawyer from questioning her effectively. The court said the evidence did not establish that she had been unable to give relevant evidence. The ruling grants permission to pursue only the specified grounds; it makes no final finding that the tribunal acted unlawfully.