The High Court has granted limited leave for a South African asylum applicant to seek judicial review of a Refugee Appeals Tribunal decision, finding a substantial ground to examine whether the absence of an oral appeal hearing deprived him of an effective remedy.
The ruling does not decide whether the Tribunal decision was unlawful or whether the applicant qualifies for refugee status. The court said those issues would be considered at a substantive hearing.
The applicant, identified in the judgment as B. J. C. [South Africa], arrived in Ireland in August 2009. He said his parents were born in Zimbabwe and that they and his two siblings were killed in xenophobic attacks in May 2008, during which the family home was burned. The Commissioner’s report questioned his credibility and said he had not shown sufficient evidence of harm or persistent harassment. It also concluded he could relocate within South Africa, including to Cape Town or Johannesburg, and seek assistance from a human rights organisation or NGO.
The Tribunal dismissed his appeal without an oral hearing. Its decision relied on answers in his interview, describing his responses about a fear of persecution linked to his Zimbabwean lineage as “extremely vague, unhelpful and even confusing”. It also questioned the plausibility of his account of travelling to Mozambique and Nigeria.
The court said credibility was at the heart of the Tribunal’s decision. It could not rule out the possibility that an oral hearing would have affected the Tribunal member’s conclusions by allowing a personal assessment of the applicant’s answers. The court therefore found a sufficiently substantial ground to allow a challenge based on whether the safe-country designation, combined with the lack of an oral hearing, denied an effective remedy.
However, the court refused leave to challenge the Commissioner’s asylum report. The judicial review application was filed on 1 February 2010, after the statutory 14-day limit. The court found no evidence adequately explaining the delay in challenging that report and said there was no good and sufficient reason to extend time for that purpose.
The court extended time to 1 February 2010 and granted leave on specified grounds relating to the Tribunal decision. It said no other grounds had been shown to be substantial for the purpose of granting leave.