The High Court dismissed a Nigerian man’s application for leave to seek judicial review of a decision refusing him refugee status, after also refusing to extend the time for bringing the challenge by nine days.
The judgment, delivered by Mr Justice E. Smyth on 30 March 2011, concerned a Refugee Appeals Tribunal decision affirming a recommendation that O. E. should not be declared a refugee. The applicant claimed he was gay and had been assaulted in Nigeria after his sexual orientation became known. He said his parents sent him to a spiritualist to be “cured” and that he feared persecution by his community, society and the government if returned.
The Tribunal rejected his account, citing several credibility concerns. These included inconsistencies about how long he stayed with the spiritualist, his account of travelling with a passport whose name he said he did not know, and his explanation that he did not seek asylum in the Netherlands because he was uncomfortable with the language. The Tribunal also considered whether he could relocate within Nigeria, including to a larger city such as Lagos.
The applicant argued that the Tribunal had applied the wrong legal test by expecting him to conceal his sexual orientation to avoid persecution. The judge found no such pivotal finding in the Tribunal’s decision. He distinguished an earlier case in which a decision-maker had failed to consider guidance on concealment, noting that the 2008 UNHCR guidance post-dated the Tribunal’s decision in this case. The court did not determine the guidance’s legal effect generally.
The judge said the Tribunal’s credibility assessment rested on multiple matters, not just the spiritualist account, and that judicial review was not an appeal in which the court could substitute its own view of credibility. He also rejected the challenge to the Tribunal’s use of country-of-origin information, finding no substantial ground that it had been selectively presented or misused.
On the time extension, the applicant said he had been waiting for legal assistance and counsel’s opinion before instructing solicitors to proceed. The judge described an affidavit from the Refugee Legal Service as unsatisfactory, but found that the applicant had not shown a sufficiently arguable case to justify extending the statutory time limit. The court therefore refused the extension and dismissed the application. It did not make a separate order quashing the Tribunal’s decision.