The High Court has granted A.O. and her minor son leave to seek judicial review of a Refugee Appeals Tribunal decision, but only on a challenge concerning their claim that they could face persecution if returned to the Democratic Republic of the Congo (DRC).
Mr Justice Cooke delivered the judgment on 25 November 2009. The Tribunal had rejected the applicants’ appeal against a recommendation that they not be recognised as refugees. The applicants sought to have that decision quashed.
The judge rejected the proposed challenge to the Tribunal’s finding that A.O.’s account of persecution was not credible. That account concerned her claimed work for a Kinshasa newspaper and alleged detention and mistreatment by state security agents. The Tribunal identified discrepancies and implausibilities in her account. Although the judge noted ambiguity about how often the newspaper was published, he considered that issue insufficient to undermine the Tribunal’s broader credibility assessment.
The court also found no material basis for a separate complaint that the Tribunal had relied on undisclosed country information. No specific undisclosed material was identified, and the newspaper’s publication frequency had been discussed at the hearing.
A separate issue arose because the Tribunal had briefly declined to examine A.O.’s fear as a returned asylum seeker, saying the consequences of its decision were for the Minister. The judge said that if this meant such a fear could never fall within the statutory refugee definition, the Tribunal’s position was wrong in law. A fear of persecution on return may fall within that definition if its requirements are met, including a connection to an imputed political opinion or membership of a particular social group.
The court considered two documents submitted in support of the return-risk claim, including an interview alleging that Congolese authorities treated people who had claimed asylum abroad as political dissidents. The judge did not decide whether those allegations were reliable or whether the applicants would face persecution. He found the documents sufficient at the leave stage to require inquiry into more authoritative and current evidence.
Leave was granted on a single ground: that the Tribunal erred by refusing to consider whether the applicants qualified as refugees because of a claimed risk on return, based on imputed political opinion or membership of a group of returning failed asylum seekers. The judge said the substantive claim could succeed only if supported by cogent, authoritative and contemporaneous evidence of systematic targeting amounting to persecution. The court did not quash the Tribunal’s decision or determine the substantive judicial review. Costs were reserved.