The High Court has granted an anonymised asylum applicant leave to seek judicial review of a decision refusing his appeal against a recommendation that he was not entitled to refugee status. The ruling does not decide whether he qualifies for refugee status or quash the Tribunal’s decision.
In a judgment delivered on 4 May 2007, Gilligan J also extended the time for the application. The judge said the delay was minimal and, on the evidence in an affidavit sworn on 26 April 2007, was not attributable to the applicant.
The applicant said he was from Kosovo and of Roma ethnicity, and had sought asylum on grounds of race or membership of a social group. The Refugee Applications Commissioner recommended against refugee status on 16 December 2004. The Refugee Appeals Tribunal affirmed that recommendation on 28 June 2005, and the decision was communicated by letter dated 19 July. The judicial review motion issued on 5 August 2005.
The applicant alleged that the Tribunal member failed to observe natural and constitutional justice, overlooked relevant matters, and selectively relied on country information that undermined his account. The High Court considered whether there were substantial grounds for allowing the challenge to proceed.
The Tribunal member had reasoned that the applicant had not complained to state authorities and that the state could not be said to have failed to protect him without an opportunity to do so. The member also considered that peacekeeping forces in Kosovo indicated protection was available, and that the alleged persecution was not persistent. The judge noted that the applicant had told the Tribunal that peacekeeping forces could not help him.
The court found an arguable case that the material before the Tribunal did not establish that Roma people could obtain effective state protection in the circumstances of the March 2004 violence in Mitrovica. It also found an arguable case that the forward-looking assessment of potential persecution lacked supporting country information beyond July 2004.
A psychological report dated 16 May 2005 said the applicant showed substantial evidence of trauma and remained psychologically vulnerable. The judge found an arguable case that the Tribunal member had not considered the report.
The court granted leave to apply for judicial review for the reliefs identified in the application, on those three grounds. The judgment records a grant of leave; it does not determine the eventual judicial review or make a final ruling on the applicant’s refugee status.