The High Court has refused the State respondents leave to appeal to the Supreme Court in an asylum judicial review, declining to certify that the case raised a point of law of exceptional public importance.
Mr Justice Herbert delivered the ruling on 5 December 2008. The respondents had sought a certificate under section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, following a High Court judgment in the case on 11 December 2007. The provision allows an appeal only if the High Court certifies both that the decision involves a point of law of exceptional public importance and that an appeal is desirable in the public interest.
The judge rejected the respondents’ submission that the earlier judgment had created uncertainty about the rule in Henderson v Henderson, which can prevent parties from reopening matters that could have been raised in earlier litigation. He said the rule was settled and that whether it applied depended on the specific facts of each case. He also said there was no evidence the legal issue had arisen before or was likely to recur frequently.
The earlier judgment had found special circumstances in the applicant’s case and held that applying the rule would cause serious injustice. In explaining that decision, Mr Justice Herbert said the Refugee Appeals Tribunal generally had no duty to go beyond the grounds stated in a notice of appeal. But he said a different situation arose where it was obvious from the documents the tribunal had to consider that the applicant’s original asylum case had not been considered, or had effectively been disregarded, by the Refugee Applications Commissioner.
In those circumstances, the earlier judgment said, the tribunal had a duty to inquire whether the applicant had abandoned the original grounds for seeking asylum. If asked, it should allow an opportunity to amend the appeal grounds; an unrepresented applicant should also be given the opportunity to seek legal advice if desired. The judge stressed that this duty arose only where both the original claim and its total or effectively total failure to be considered were clear from the documents.
The ruling did not decide whether a court reviewing an asylum decision performs an inquisitorial function. It addressed only whether the statutory conditions for a Supreme Court appeal certificate were met. Mr Justice Herbert concluded they were not and declined to certify an appeal.