The High Court has allowed a Chinese national to bring a limited judicial review challenge to a Refugee Appeals Tribunal decision rejecting his asylum appeal, after extending the time for him to apply.
In a judgment delivered on 11 February 2009, Mr Justice Cooke said the application was brought about two months and 20 days after the applicant was likely to have received the tribunal decision. The statutory deadline was 14 days. The court said the delay requiring explanation was about 11 and a half weeks.
The applicant’s solicitor said papers had been mislaid after being delivered to counsel, who was later away during August. The judge noted there was no real explanation for why the applicant waited a month after receiving the decision before seeking legal help, and questioned whether sufficient diligence had been shown. But, taking a “most benign view possible” and with hesitation, the court granted an extension. It noted that the applicant had instructed his solicitor to proceed about 14 days after the deadline expired and that parts of the proposed challenge appeared arguable.
The applicant said he had practised Falun Gong in China, had been detained and assaulted in 2000, and feared persecution if returned. The tribunal had rejected his account on credibility grounds, including inconsistencies about when he began practising, his delay in claiming asylum, his cessation of practice after arriving in Ireland, and uncertainty about whether scars identified in a medical report resulted from torture.
The court did not decide whether those conclusions were correct. It found an arguable lack of clarity in the tribunal’s reasons for rejecting the applicant’s account. It also found it arguable that the tribunal should have considered his stated fear that Chinese authorities would target him because he had applied for asylum in Ireland. The judge noted that this issue had been raised obliquely and might ultimately be found not to be properly before the court.
The court granted leave to seek specified relief, limited to two grounds: that the tribunal failed to consider and make a finding on the claimed fear of persecution because of the asylum application; and that it gave no adequate reasons for rejecting as not credible the claimed fear based on Falun Gong activities. The judgment records that these grounds warrant further consideration at a substantive hearing. It does not quash the tribunal decision or determine the underlying asylum claim.