The High Court refused an applicant’s request to quash a Refugee Applications Commissioner’s report on his asylum application, finding that the issues raised could be dealt with on appeal to the Refugee Appeals Tribunal.
Mr Justice Cooke delivered the reserved judgment on 29 April 2009. The applicant had been granted leave to seek judicial review of the Commissioner’s report and recommendation, issued on 27 June 2006. His appeal to the Tribunal had been left in abeyance pending the judicial review case. The judge noted that a full oral hearing would be available on that appeal.
The application challenged the report on four grounds. The applicant argued that there was insufficient evidence for a suggestion that state protection might have been available in Nigeria; that the Commissioner relied on hearsay or speculation in treating his departure as flight from prosecution rather than persecution; that country information about the NDPVF was not disclosed; and that adverse factual concerns were not put to him.
The judge said the first two grounds could be contested before the Tribunal, including through new country information and fresh testimony. On the disclosure complaint, he noted that the applicant had been questioned in interview about “bunkering” activity and the applicant’s and the NDPVF’s involvement. The Commissioner did not appear to have relied on information from the document that had not been put to the applicant and addressed in the interview.
As to the alleged adverse findings, the judge said the disputed passages might instead be observations and queries supporting an overall credibility assessment. A challenge seeking a different assessment of the applicant’s account was, he said, the proper work of the Tribunal on appeal.
The court stressed that the Tribunal could reach its own view of the evidence, consider new evidence, hear the applicant’s testimony and substitute its assessment for the Commissioner’s. Judicial review could be appropriate where a fundamental error made the appeal inadequate, but the judge was not satisfied that this was such a case.
The court refused the application for certiorari and the other reliefs sought. The judgment did not determine the asylum appeal; that appeal remained available to be pursued before the Tribunal.