The High Court stayed an Afghan national’s asylum-related judicial review application for a short period so he could file a fresh affidavit that complied with the court rules. It declined, at this stage, to strike out the proceedings over the affidavit defect.
The preliminary issue arose during an application for leave to seek judicial review of a Refugee Appeals Tribunal decision dated 22 September 2008 rejecting the applicant’s asylum claim. The applicant said his claim was based on membership of the Afghan People’s Liberation Army, known as SAMA, and a fear of Taliban persecution if returned to Afghanistan.
The judgment records that the applicant had identified Hazaraghy and Dari as his first languages in an asylum questionnaire. His interview under section 11 was conducted in Dari with an interpreter, and his tribunal appeal sought a Dari interpreter. However, his grounding affidavit was sworn in English. The judgment says no explanation had been offered about how he had sufficient familiarity with English or how his solicitor had taken instructions.
The respondents argued that the proceedings should be struck out at the outset for non-compliance with Order 40, rule 14 of the Rules of the Superior Courts. The court agreed with the interpretation of that rule in an earlier High Court case: where a deponent does not speak English, the affidavit should first be sworn in the language the deponent speaks, with a qualified translator’s translation and verification filed as evidence. On the information before it, the court held that the affidavits were inadmissible because the English-language affidavit did not meet the rule’s requirements.
That finding did not automatically dispose of the judicial review. The judge said procedural rules should be applied with discretion and that a party should be allowed to correct an error where doing so would not cause material injustice. He also noted that this case concerned an asylum claim and, unlike the earlier case discussed in the judgment, there was no suggestion at this stage that the applicant had repudiated a key part of an affidavit because he had not understood it.
The court stayed the application briefly to allow the applicant and his advisers to file a compliant fresh affidavit. The judgment did not determine the underlying asylum claim or the validity of the tribunal decision. If no compliant affidavit is filed, the respondents may re-enter their motion and apply again to strike out the proceedings.