The High Court has granted F.K.S. leave to seek judicial review over whether the Refugee Appeals Tribunal could hear her appeal without a presenting officer for the Refugee Applications Commissioner. It refused leave on her separate ground that the Tribunal took too long to issue its decision.
The ruling, delivered by Ms Justice Dunne on 30 October 2009, concerns the threshold for bringing a judicial review challenge. It does not decide whether the Tribunal acted unlawfully, or alter the Tribunal’s decision on her asylum appeal.
F.K.S. said she was from Cameroon and feared persecution because she was a woman and mother, and because she was HIV-positive. She also described fearing violence from her partner after opposing his wish to have their daughter circumcised. These were the grounds of her asylum claim as recounted in the judgment, not findings made by the High Court.
Her appeal hearing took place on 25 February 2008. Her lawyer objected to the absence of a presenting officer, but the Tribunal member proceeded. During the hearing, the member offered to adjourn if an issue about internal relocation was pursued, so that an officer could attend. The applicant’s lawyer declined the adjournment and continued with the hearing.
The applicant argued that the legislation and regulations required the Commissioner or an authorised representative to be present. The respondents argued that the Tribunal had to enable the Commissioner’s representative to attend, but that attendance was not mandatory. They also submitted that any breach would be technical and had caused no demonstrated prejudice.
Justice Dunne said the competing arguments about the statutory provisions required a full hearing. Because the applicant had objected at the outset, the court found a serious issue about whether the Tribunal had jurisdiction to proceed without a presenting officer. It granted leave on that ground, allowing the applicant to bring the challenge; it made no final ruling on the legal question.
The Tribunal delivered its decision on 12 November 2008, more than eight months after the hearing. The applicant argued that the delay was unreasonable and breached her rights. The court noted there was no allegation that the delay had prejudiced her or undermined the Tribunal’s credibility findings. Although the delay was “less than satisfactory”, Justice Dunne refused leave on that ground, finding no basis in this case to conclude it made the decision unsafe.