The High Court refused Ajoke Kayode leave to seek judicial review of the Refugee Application Commissioner’s decision not to declare her a refugee. It found that substantial grounds had not been established and that her appeal to the Refugee Appeals Tribunal was the more appropriate remedy. The court noted that the appeal remained open to her.
The judgment, delivered by Mr Justice O’Leary on 25 April 2005, concerned a decision communicated to Kayode by letter dated 28 April 2004. She appealed to the tribunal on 20 May and filed her judicial review motion on 27 May, seeking to quash the refusal, have her claim assessed again and obtain related relief.
The court accepted her explanation for filing outside the statutory period and extended time to the extent necessary to consider the application. It then considered the effect of bringing judicial review proceedings while an appeal was pending. An appeal does not automatically prevent judicial review, the judge said; the court must consider which remedy is more appropriate in the circumstances.
Kayode’s submissions challenged the age and assessment of country-of-origin information, the evaluation of internal protection in Nigeria, the treatment of her credibility and travel arrangements, and the weight given to missing documents. She also argued that the decision did not properly account for her mother’s refugee status and that the burden of proof had been applied incorrectly.
The judge considered most of these complaints to concern the quality of the decision and to be matters better raised on appeal. He said the respondent’s consideration of the mother’s status fell within its decision-making discretion. On the burden-of-proof argument, the court distinguished a possible duty to produce or disclose evidence from the burden of proving the claim, which it said remained with the applicant.
The court concluded that the application lacked substantial grounds for leave. It also considered the case on the assumption that judicial review might be available and held that an appeal was more appropriate. The ruling refused leave; it did not determine the merits of the refugee claim or the pending appeal.