The High Court has granted a South African mother and her two daughters leave to pursue parts of a challenge to a Refugee Appeals Tribunal decision rejecting their asylum appeal. The court found substantial grounds for further argument about how the tribunal handled the older daughter’s reported rape, its credibility findings and its use of country information.
The ruling does not decide whether the family qualify for protection. It grants leave to seek judicial review on specified grounds; the tribunal decision has not been quashed at this stage.
The family’s asylum claim initially centred on the mother’s fear of a man she believed had killed her husband. She said she saw the man in her neighbourhood in January 2011 after he escaped from prison, and came to believe he was following her. The family left South Africa in December 2011. The mother’s two daughters, then aged 16 and 10, were included as dependants and later joined the proceedings as co-applicants.
After the appeal was lodged, the family’s solicitor told the tribunal that the older daughter had been raped on her way to school in early November 2011 and that the incident had been reported to police. The solicitor provided a police report and an affidavit recording the mother’s complaint. The judgment says the tribunal questioned the late disclosure and accepted that rape of children was alarmingly common, but concluded there was no clear and convincing evidence of a lack of state protection.
Justice M.H. Clark said the rape allegation materially changed the claim and should have been properly and independently assessed, with relevant, up-to-date country information. The court said substantial grounds existed to argue that this had not been done. It also found grounds to argue that the tribunal made unnecessary and exaggerated negative credibility findings about the mother in a paper-based appeal, and failed properly or at all to consider the country information submitted.
The court also noted that the credibility findings could potentially affect later decisions on subsidiary protection or permission to remain. It said there were substantial grounds to argue that the appeal determination breached natural and constitutional justice and might be incompatible with the Qualification Directive.
The family had also argued that the paper-based appeal was not an effective remedy because the mother could not give oral evidence. The court refused leave on that issue. It said the family should have challenged the earlier decision requiring a paper appeal when it was made, rather than after the tribunal had ruled. The court did, however, extend the time for bringing the judicial review, citing administrative delays including a missing page from the tribunal decision.