The High Court refused B. N. N. leave to seek judicial review of a negative asylum recommendation, finding that she had not shown an injustice that could not be addressed on appeal to the Refugee Appeals Tribunal (RAT).
In a judgment delivered on 9 October 2008, Mr Justice Hedigan extended the time for bringing the proceedings. He said the applicant’s reasons for delay were unconvincing, but an important legal point arose about when judicial review was available in relation to decisions by the Refugee Applications Commissioner (ORAC).
The applicant, a national of the Democratic Republic of the Congo and a member of the Banyamulenge community, said she had worked analysing security reports for the country’s intelligence agency. She alleged that she passed confidential information about threats to the Banyamulenge to an adviser to a transitional-government vice-president. She said she was arrested, interrogated and tortured, escaped detention and fled to Ireland. These were her claims in support of asylum; the judgment does not make findings that those events occurred.
ORAC interviewed her in June 2006 and later recommended that she not be declared a refugee, citing negative credibility findings. She appealed to the RAT and requested an oral hearing. She also sought judicial review, arguing that the interview procedure was flawed. Her complaints included that the officer did not put relevant material to her, wrongly assessed her credibility, insufficiently explained consideration of statutory credibility factors, and failed to call her back to comment on country information.
The court rejected the substantive grounds. It found that the officer was not required to put every item of country-of-origin information or each credibility concern to the applicant. The court also found nothing unreasonable in the credibility conclusions. Although it would have been desirable for the report to explain why a statutory factor was considered particularly relevant, the court said the omission was not fatal and could be dealt with on appeal. The applicant’s request for an oral hearing meant she would have a further opportunity to address the issues before the RAT.
The judgment set out a general limit on judicial review at this stage: leave should be granted only in rare cases where a fundamental flaw caused an injustice that could not be remedied on appeal. It gave as an example cases in which statutory provisions deny an applicant an oral appeal hearing. The court considered this case different because an oral hearing was available and had been requested.
The court concluded that there were no substantial grounds to find the ORAC recommendation invalid or liable to be quashed. It refused leave to apply for judicial review. The ruling did not decide the asylum appeal or determine whether the applicant qualified for refugee status.