The High Court refused X. L. C. leave to seek judicial review of a negative asylum recommendation, ruling that the pending appeal to the Refugee Appeals Tribunal was an appropriate remedy and that no substantial ground for early court intervention had been shown.
Mr Justice Cooke delivered judgment on 10 February 2010. The applicant had challenged a report by the Refugee Applications Commissioner under section 13 of the Refugee Act 1996. An appeal against the report had been lodged with the tribunal but was being held pending the judicial review proceedings.
The report recorded a finding that the applicant had, without reasonable cause, failed to apply for asylum as soon as reasonably practicable after arriving in Ireland. The judgment said that finding meant the tribunal appeal had to be decided without an oral hearing. The applicant argued that, because the report also found against his credibility, he would be unable to give oral testimony to persuade the tribunal to take a different view.
The court rejected that argument on its reading of the report. It found the report accepted the applicant’s account that he distributed Falun Gong leaflets in China in 1998, but assessed his stated fear of persecution on return as exaggerated and unrealistic. It also concluded that any consequences arising from the loss or cancellation of his identity documents would follow Chinese laws applying generally to citizens who left without proper exit formalities, rather than establish a risk of persecution.
The judgment noted that the applicant could submit evidence to the tribunal challenging country information, and could provide testimony in a written statement despite the absence of an oral hearing. The judge said the issues identified did not turn on an assessment of the applicant’s personal truthfulness that required oral evidence for the appeal to be effective.
The court held that judicial review of a section 13 report before the tribunal appeal concludes should be reserved for exceptional cases involving a material illegality that the appeal cannot remedy. It refused leave both because the appeal was an appropriate and suitable alternative remedy and because no substantial ground had been made out to challenge the report’s preparation or recommendation.