The High Court has refused to quash the rejection of an anonymised applicant’s refugee claim, finding that the disputed decision involved an individual assessment and that an appeal was the appropriate remedy.
In a judgment delivered on 9 February 2017, Ms Justice O’Regan extended the time for the judicial review proceedings but refused the applicant’s request for certiorari, which would have quashed the Refugee Applications Commissioner’s decision.
The applicant’s claim was based on an asserted fear of persecution in Malawi because of his stated homosexuality. The Commissioner’s report instead assessed the claim on the basis that he was a Zimbabwean national. The applicant challenged the decision on several grounds, including the use of the balance of probabilities, the assessment of his sexual orientation and the fact that the person who interviewed him did not sign the later report.
The report relied in part on the applicant’s Twitter activity, including his following and apparent approval of heterosexual pornography. It concluded that this supported a finding, on the balance of probabilities, that he was heterosexual. The applicant argued that the assessment relied on stereotypes. The respondents submitted that it was an individual assessment based on material the applicant had made publicly available.
The judge rejected the challenge to the sexuality assessment, finding that the decision was based on an individual assessment rather than stereotyped notions or questions the applicant could not answer. She also found no unfairness arising from different personnel conducting the interview and making the recommendation: the report relied on contradictions and discrepancies, not the applicant’s demeanour.
On the standard of proof, the judge relied on her earlier decision in *ON v Refugee Appeals Tribunal* [2017] IEHC 13, which she said supported using the balance of probabilities, coupled where appropriate with the benefit of the doubt. She concluded that the applicant’s arguments on the proof standard, interview arrangements and suitability of judicial review failed under the relevant case law.
Because she found no indication that the decision was affected by lack of jurisdiction or a breach of natural justice, the judge held that an appeal, rather than judicial review, was the appropriate remedy. The court therefore extended time but refused certiorari; the judgment did not overturn the refugee-claim rejection.