The High Court dismissed an applicant’s request for leave to seek judicial review of a negative asylum recommendation, finding that she had not shown errors serious enough to justify court review at that stage.
The judgment, delivered by Ms Justice Faherty on 6 September 2016, concerned a Nigerian woman who said she feared persecution by Boko Haram because she had converted from Islam to Christianity. She claimed her church in Kano State was attacked in April 2010 and that she was separated from her daughter during the attack. These were claims in her protection application, not findings made by the High Court.
The Refugee Applications Commissioner issued a negative report in September 2014. It identified credibility concerns, including inconsistencies about when she moved to Kano, her work history, the alleged church attack and her delay in seeking asylum. The Commissioner also concluded that state protection was available in Nigeria and that internal relocation was possible. The applicant argued that the Commissioner had not expressly decided whether she had converted, had not adequately explained the treatment of her documents, and had erred on state protection and relocation.
The applicant had lodged an appeal to the Refugee Appeals Tribunal, but it had not yet begun. She argued that the appeal would not cure the failure to decide a central part of her claim. The respondents said the Tribunal could rehear the case, consider new evidence and replace the Commissioner’s findings.
Justice Faherty held that the alleged shortcomings concerning credibility, documents, state protection and relocation went to the quality of the Commissioner’s decision and could be raised on appeal. She also found that the Commissioner’s reference to a cumulative assessment concerned the credibility issues, rather than a combined assessment of credibility, state protection and relocation.
The judgment acknowledged that there was no express finding on whether the applicant had converted to Christianity and said it would have been preferable for one to be made. But the court found that omission did not amount to a jurisdictional error or unfairness requiring judicial review. The Commissioner had considered the claimed risk through the state-protection and internal-relocation assessments, whose merits the applicant could contest before the Tribunal.
The court rejected the argument that the limits on judicial review were incompatible with the right to an effective remedy under EU law. It said the statutory appeal provided a full rehearing and that disputed findings would be neutralised unless the Tribunal affirmed them. The court granted a short extension of time for the proceedings, but dismissed the application for leave to seek judicial review. It did not determine the asylum appeal or make a final determination of the applicant’s protection claim.