The High Court granted F.V. leave to challenge a Refugee Appeals Tribunal decision on one limited ground: whether the tribunal wrongly considered itself unable to assess a claim that F.V. would face persecution as a failed asylum seeker if returned to Togo. The court did not decide that claim or overturn the tribunal’s decision at this stage.
In a judgment delivered on 21 January 2009, Mr Justice Birmingham said he had indicated the previous day that leave would be granted on that ground alone. He found substantial grounds to argue that the tribunal member may have erred by treating the question as outside the tribunal’s jurisdiction, rather than considering the case advanced. The judgment records that the judge was not deciding whether the claim was ultimately strong or whether F.V. would face persecution.
F.V. claimed to be a Togolese national and said he was an opposition activist detained and tortured after the disputed 2003 election. He said he escaped, travelled through Ghana and arrived in Ireland. The tribunal had rejected his account, citing concerns including gaps in his knowledge of Togolese political matters, inconsistencies, aspects of his escape and travel story it considered implausible, and a medical report it found did not corroborate his account.
The High Court rejected the other challenges discussed in the judgment. It held that the tribunal member was entitled to assess the medical report’s limited findings and to conclude that it could not establish how injuries were caused. The judge also found that the applicant had not displaced the tribunal member’s statement that country-of-origin information had been considered. He treated the tribunal’s conclusions about the escape and travel account as inferences rather than impermissible speculation, and found its assessment of the delayed disclosure of alleged electric shocks was open to it.
On the failed-asylum-seeker issue, the judge distinguished between what happens after an asylum application is rejected and whether a person may still qualify as a refugee because of feared persecution on return. He said there was nothing objectionable in the tribunal’s view that post-rejection arrangements were for others. But its apparent exclusion of the possibility that a failed asylum seeker could be a refugee was more troubling. The judgment notes that the applicant’s papers did not clearly show that he had personally expressed this fear, but the judge said the tribunal appeared to have relied on lack of jurisdiction without considering the case advanced.
The order was limited to granting leave to pursue that ground. The judgment contains no final ruling on the judicial review or order setting aside the tribunal decision.