The High Court granted an extension of time and leave for an Afghan applicant to seek judicial review of a Refugee Appeals Tribunal decision, but only on grounds concerning the Tribunal’s assessment of his failure to seek asylum in Iran or Turkey. The court did not quash the Tribunal’s decision or determine the applicant’s entitlement to refugee status.
The judgment, delivered by Mr Justice Daniel O’Keeffe on 20 November 2012, concerned a Tribunal decision dated 26 April 2011 that affirmed a negative recommendation on the applicant’s asylum claim. Proceedings were issued after the statutory time limit. The court considered the merits before deciding whether to extend time.
The applicant challenged several credibility findings, arguing that they failed to account for his age and mental health difficulties. The Tribunal had said it would treat him as a minor because of the dispute over his age. The High Court found that, even if he was a minor, the evidence indicated he had sufficient maturity to give a generally coherent and consistent account. It upheld several challenged credibility findings, including those concerning his delay in leaving his village, his evidence about Pashtuns in government, the circumstances of relatives who remained in Afghanistan, and discrepancies in accounts given to asylum authorities and a medical professional. It also found no infirmity in the Tribunal’s treatment of letters said to come from commanders.
The court did, however, find substantial grounds to challenge the Tribunal’s conclusion that the applicant’s reasons for not seeking asylum in Iran or Turkey were “not in accordance with reality”. The applicant had said those countries did not provide an asylum system for Afghans. The country information before the Tribunal included reports describing serious difficulties for asylum seekers and Afghan nationals in both countries. The court said that information was consistent with the applicant’s account and that the Tribunal’s conclusion was arguably unsupported and involved impermissible conjecture.
The court also noted that failing to seek asylum in the nearest or first safe country is not, by itself, a bar to refugee status or necessarily inconsistent with a genuine fear of persecution. The reason given for travelling through another country may still be considered when assessing credibility.
In light of the arguable error and the explanations for the delay, the court granted an extension of time. It granted leave on parts of grounds (b) and (c), concerning the Tribunal’s reasons, its treatment of country information and its conclusion about the failure to apply in Iran or Turkey. This was permission to pursue those judicial review grounds, not a final ruling on them.