The High Court has granted an applicant leave to challenge a Refugee Appeals Tribunal decision rejecting her appeal for refugee status, after finding a substantial issue about whether the Tribunal adequately determined her country of origin or nationality.
Mr Justice Cooke’s judgment, delivered on 15 July 2009, also extended the time for bringing the proceedings to 30 May 2008. The court did not decide the substantive challenge or rule that any proposed ground would succeed.
The applicant, identified in the judgment as E.S., said she was Zimbabwean and had fled threats that she be forced to marry an older man. The Refugee Applications Commissioner recommended rejecting her claim in 2005, citing doubts about her credibility and whether she was from Zimbabwe. The report also relied on other factors, including her travel and the delay in applying for asylum. Because it found she had not applied as soon as practicable after arrival, the report excluded an oral hearing on appeal.
The Tribunal rejected the appeal in April 2008. In the judicial review proceedings, the applicant’s counsel advanced two proposed grounds: that the Tribunal had failed to consider her claim of persecution as a returned failed asylum seeker, and that it wrongly treated her claim based on HIV-positive status as a matter for another forum.
The High Court focused on uncertainty in the Tribunal’s decision about whether it had concluded that the applicant was not Zimbabwean. The judgment noted that a technical examination found the South African passport she had used was stolen and false. Although the Tribunal decision listed the examination report, it did not discuss the significance of that result for the nationality question. The applicant had acknowledged from the outset that the passport was false and said she had bought it from a man.
The court also noted that later material showed the church the applicant said she attended existed. It said these changes to information relevant to the earlier credibility assessment, together with the absence of an oral hearing, raised a substantial issue about whether the Tribunal adequately investigated and determined her country of origin.
The court added a proposed ground alleging that the Tribunal failed to investigate and determine the applicant’s country of nationality or origin to an adequate degree of likelihood, and failed to state its reasons. It observed that the Tribunal referred to the returned-asylum-seeker claim as considered but gave no explanation for rejecting it, while expressly leaving the HIV-related claim to another forum.
The judge stressed that leave meant only that substantial issues had been raised. The respondents were given an opportunity to oppose the additional ground, and the court expressed no view on the eventual merits. It also said the substantive hearing could find that the refugee claim had been rejected for independent credibility reasons, or that the Tribunal was not required to address claims raised late and unsupported by the applicant’s own evidence.