The High Court granted an Algerian applicant leave to seek judicial review of a Refugee Appeals Tribunal decision refusing him refugee status. The court found substantial grounds to argue that the Tribunal had applied the wrong legal approach to assessing whether he faced persecution if returned to Algeria, and to challenge its treatment of his failure to seek asylum in France or Spain.
The decision was delivered by Mr Justice Hogan on 24 January 2012. It concerns a Tribunal refusal dated 26 September 2008. The court granted leave to apply for judicial review; it did not decide the refugee claim or make a final determination of the judicial review. Hogan J said he would discuss the form of the order with counsel.
The judgment records that the Tribunal accepted in broad measure the applicant’s account and that his homosexuality was not in dispute. The applicant said he had been detained for about a year after a wedding where he performed as a singer and drummer in a women’s band. The Tribunal appears to have considered that suspicion of links to terrorists was probably a reason for the detention, while also taking his sexual orientation into account. The applicant’s account of why he was detained had varied during interviews, and the judgment notes that no other specific act of harassment or discrimination amounting to persecution had been identified.
The Tribunal rejected the claim in part because the applicant had remained in Algeria after his release and had not shown specific persecution during that period. It also considered that he could live discreetly and found his explanation for not properly applying for asylum in France or Spain unsatisfactory.
Hogan J said the legal test was forward-looking: the question was whether the applicant had a well-founded fear of persecution if returned, not whether he had already suffered persecution. The judgment said a person should not be expected to conceal their sexual orientation to avoid persecution. It identified questions the Tribunal had failed to ask: how the applicant was likely to be treated on return, and whether that treatment would amount to persecution through significant and severe violations of human rights.
On the asylum applications in France and Spain, the court accepted that the Tribunal could find on the evidence that the applicant could have applied there. But Hogan J held that this was not necessarily decisive. Although failure to claim asylum at an earlier opportunity may bear on credibility, the judgment noted there was no suggestion that this applicant was generally not credible. The court therefore found substantial grounds to challenge the Tribunal’s decision on this issue too.