The High Court has dismissed a South African man’s judicial review of a tribunal decision refusing to recommend that he be recognised as a refugee.
In a judgment delivered on 3 May 2019, Mr Justice David Keane found that the International Protection Appeals Tribunal was not required to put its credibility concerns to the applicant for comment before deciding his papers-only appeal.
The case concerned a tribunal decision dated 5 October 2015. It had affirmed the Refugee Applications Commissioner’s recommendation that the applicant not be declared a refugee. The applicant had sought to have that decision quashed and his appeal sent back for a fresh decision by a different tribunal member.
The man, whose name is anonymised in the judgment, is a South African national of South Asian ethnicity. He said he feared persecution because of his race. In his initial interviews, he described racist remarks at work and an armed robbery and assault during a delivery in December 2013. He said the attackers threatened to kill him and referred to Nelson Mandela’s death. He reported the incident to police, but said he received no update.
The Commissioner found that the account could amount to persecution if true, but concluded that protection was available through relocation within South Africa. The Commissioner also noted that no credibility issue had arisen for the purposes of specified findings under section 13(6) of the Refugee Act. The High Court held that this was not an overall finding that the man’s account was credible.
In a written statement submitted during the appeal, the man added claims that his home had been burgled earlier in 2013 and that he had experienced repeated racist attacks. The tribunal rejected those claims and did not accept that the December robbery was racially motivated, while accepting that he may have been robbed and assaulted. It concluded that there was no need to assess whether the accepted facts established a well-founded fear, a Convention connection, lack of state protection or whether internal relocation was available.
The High Court said the new claims had not been made to the Commissioner and that their credibility therefore had to be assessed by the tribunal. The applicant had an opportunity to address the issues in his appeal submissions, including after the tribunal invited further information from his legal representatives. The court found no requirement to seek another response before the tribunal made its decision.
The court dismissed the judicial review. It did not quash the tribunal decision or order a fresh appeal determination.