The High Court quashed the refusal of a Lithuanian national’s refugee application and ordered that it be sent back for investigation, after finding that material relied on in the recommendation had not been disclosed to him before it was made.
In a judgment delivered on 29 April 2005, Gilligan J found that the Refugee Applications Commissioner had not complied with section 11(6) of the Refugee Act 1996. That provision required relevant information gathered during the investigation to be furnished to the applicant before the Commissioner made a recommendation, subject to a confidentiality exception that was not claimed in this case.
The applicant entered the State and applied for refugee status on 16 August 2002. He was interviewed on 27 May 2003 and was told he could provide documentary evidence or other information before, during or within seven working days after the interview. He made no submissions during that period.
The Commissioner notified him on 17 July 2003 of a recommendation that he not be declared a refugee, and provided copies of the reports prepared under sections 11 and 13. The country of origin information at issue was relied on in the section 13 report, but not in the section 11 report.
The applicant argued that he had been denied a chance to address or rebut that information. He said it had supported the Commissioner’s conclusion that redress or state protection would have been available in Lithuania for difficulties he experienced with the State Security Department. The respondents argued that fair procedures did not require disclosure of documents considered before the reports were furnished, and that the applicant could have provided relevant information himself.
The judgment records that the Commissioner also considered the applicant’s evidence about why he said he had been imprisoned “incredible”, and found no country information supporting his allegation of illegal recruitment activities. Those matters were part of the recommendation’s stated basis, but the court’s ruling concerned the undisclosed material and the statutory opportunity to make representations.
Gilligan J concluded that sections 11 and 13 form a linked process: the section 13 report follows the investigation under section 11 and does not begin a new investigation. Because the material was not furnished before the recommendation, the applicant lost his statutory opportunity under section 11(3) to make relevant submissions.
The court granted the relief sought to quash the decision and reports, and to remit the application for investigation in accordance with the court’s directions. The judgment did not itself declare the applicant a refugee.