The High Court has refused leave to seek judicial review of a Refugee Appeals Tribunal decision that upheld a recommendation against granting refugee status to a child applicant.
The child, identified in the judgment as J. T., was born in Ireland in 2005 and brought the asylum claim through his mother. His claim depended on her asserted fear of persecution in Benin. She said she had lived and worked in a brothel there and feared its owner, referred to as “Mama”. She feared the woman might harm her son if they returned. Her own application for refugee status was unsuccessful, and the child’s claim was also rejected.
The challenge focused on an oral appeal hearing before the Tribunal. The applicant argued that the Tribunal Member had refused to allow his legal representative to question the presenting officer, who represented the Refugee Applications Commissioner. Counsel submitted that this breached fair procedures and left the underlying report unchallenged, relying on regulations that provide for examination and cross-examination at appeal hearings.
Justice M. H. Clark said the regulations allow for questioning the Commissioner’s representative in appropriate circumstances, such as questions about the source of information. But the presenting officer had not prepared the report and was not a witness. The Tribunal Member controlled the hearing and could assess whether questioning was relevant.
The court said the appeal issues related mainly to country-of-origin information, medical reports and social supports for the child, which had been exchanged before the hearing. It was unclear what had happened when the alleged request to question the presenting officer was made. The mother’s affidavit said the representative was told the request was unusual, but the solicitor who attended the hearing did not describe any request or refusal in her affidavit. Counsel could not establish what happened next or identify prejudice caused by the absence of questioning.
The judge also said the Tribunal’s process was not adversarial in the way a criminal trial is, and that the Tribunal Member had to make an independent assessment of the facts. The court was not satisfied that the applicant had shown actual prejudice or that the report had gone untested simply because the presenting officer was not cross-examined.
The ruling was limited to the application for leave to bring judicial review. The court found that the required substantial grounds had not been shown and refused leave; it did not quash the Tribunal decision.