The High Court granted an asylum applicant leave to seek judicial review on a claim that the Refugee Appeals Tribunal made a fresh adverse credibility finding without giving him an opportunity to respond. It refused leave on the applicant’s other grounds.
The ex parte application concerned the Tribunal’s decision of 5 October 2015, which affirmed a recommendation that the applicant not be declared a refugee. In a judgment delivered on 29 April 2016, Mr Justice Mac Eochaidh considered whether the applicant should have been able to address a negative credibility finding that arose for the first time on appeal.
The applicant, identified in the judgment as S. H. I., said in an affidavit that he was a South African citizen of Indian ethnicity and had faced regular racial abuse from work colleagues while working as a truck driver in South Africa in 2013. The Office of the Refugee Applications Commissioner had recommended against refugee status in January 2014, while finding that no credibility issues arose during its assessment. It also found that, as a national of a country designated safe under the Refugee Act, the applicant had no right to an oral appeal hearing.
On the papers-only appeal, the Tribunal disbelieved the applicant’s account of racially motivated abuse at work. It considered the account implausible because he had not reported the abuse to police or his employer.
The applicant argued that the Tribunal breached fair procedures by making that finding without putting the issue to him. He also challenged the Tribunal’s failure to assess the risk he might face if returned to South Africa, and raised related grounds alleging factual error and irrationality.
Justice Mac Eochaidh found a substantial ground for judicial review on the fair-procedures claim. He said it might have been unlawful to raise a credibility issue for the first time in a papers-only appeal when credibility had been accepted at first instance. The concern was heightened because the papers-only process followed from South Africa’s safe-country designation, which the judge said had no necessary connection to the credibility issue.
The court granted leave only on the pleaded fair-procedures ground. It refused leave on the other grounds, including the forward-looking risk assessment claim. The judge said such an assessment was not required after the Tribunal rejected the applicant’s credibility; it would have been required if credibility had been accepted. The judgment decided whether the applicant could bring a judicial review challenge. It did not determine that challenge or overturn the Tribunal’s decision.