The High Court has given an Afghan asylum seeker permission to seek judicial review of a Refugee Appeals Tribunal decision that rejected his asylum claim, finding substantial grounds to challenge how the tribunal assessed his alleged responsibility for crimes committed by the Taliban.
In a judgment delivered on 5 May 2011, Mr Justice Hogan granted leave on one ground: that the tribunal may not have conducted the individualised assessment required to determine whether the applicant was personally complicit in crimes against humanity attributed to the Taliban. The court did not decide the judicial review itself or overturn the tribunal’s decision.
The applicant, identified in the judgment as A.B. and Mr B., said he had been a Taliban prosecutor and later a regional commander in Helmand, Afghanistan. He said he fought against Afghan government and NATO-led International Security Assistance Force (ISAF) troops between 2001 and 2006, and feared persecution, imprisonment or death if returned. The judgment records an Afghan arrest warrant relating to his activities.
The tribunal accepted that he had a credible, apparently well-founded fear of harm. It nevertheless rejected his asylum request, reasoning that he was fleeing prosecution for activities he had volunteered, rather than persecution. It also said that, if he otherwise qualified as a refugee, his senior position and participation in fighting would exclude him from protection under the Convention’s exclusion provisions.
Justice Hogan said the tribunal’s findings appeared to make the applicant eligible for refugee status under the ordinary definition, subject to whether an exclusion applied. He reviewed European and international decisions which, in his account, allowed a senior role in a terrorist organisation to support a presumption of responsibility, but still required examination of the person’s role, knowledge and circumstances. He found substantial grounds to argue that the tribunal had relied on senior membership and participation in combat without making that individual assessment.
The judge also observed that the applicant’s admitted combat against ISAF troops, whose presence had been authorised by UN Security Council resolutions, could itself fall within the statutory exclusion for acts contrary to the purposes and principles of the United Nations. But because the tribunal had not rejected the claim on that specific basis, Hogan said it would not be appropriate to refuse leave on that ground alone.
The permission granted is limited to the challenge concerning the individual assessment of complicity in Taliban crimes against humanity. The judgment makes no final finding on the applicant’s refugee status or on whether an exclusion applies.