The High Court has quashed a Refugee Appeals Tribunal decision refusing an asylum appeal after finding that the tribunal did not consider whether a protection regulation applied to the applicant’s claimed risk from a man identified in the judgment as “Ernest”.
Mr Justice Richard Humphreys delivered judgment on 20 March 2018 in judicial review proceedings brought by S.N. (South Africa), an anonymised South African applicant. The court ordered certiorari of the tribunal’s refusal and remitted the matter to the tribunal under a procedure set out in a letter from the Chief State Solicitor’s Office dated 15 March 2018.
The applicant said that, after her father’s death in 2012, her mother forced her to have sex with a man for payment when she was 16. She also said that, at 17, her mother told her she had to marry “Ernest”, a 60-year-old businessman with several wives. The judgment records that the applicant left South Africa for Ireland, arriving on 9 July 2014.
Her asylum application was rejected on 28 July 2014, and the tribunal dismissed her appeal on 30 September 2016. She sought judicial review. The High Court extended time for the challenge, then rejected several grounds, including arguments about the balance of proof, country information and the tribunal’s consideration of appeal materials.
The judge upheld the tribunal’s assessment of the claimed risk from the applicant’s mother. The tribunal had given reasons for finding that a future risk from her was not established, including the applicant’s age and changed circumstances and the country information. Those reasons were within the range open to the tribunal, the judge said.
The issue concerning “Ernest” was different. The tribunal had found insufficient evidence that he would cause problems in future, but the judgment said it had not considered regulation 5 of the 2006 protection regulations in relation to him. The judge noted that, on the applicant’s accepted account, Ernest had made an agreement and paid a price connected with the proposed marriage.
Where past persecution is accepted, the decision-maker must positively consider whether there is good reason to conclude that future risk will not arise, the judge said. He held that the tribunal should have considered whether regulation 5(2) applied to the alleged past persecution linked to Ernest and whether it supported a fear of future persecution. The court did not decide that the applicant qualified for asylum or determine the outcome of the remitted assessment.