The High Court quashed a Refugee Appeals Tribunal decision refusing refugee status to an anonymised Togolese applicant, finding that the tribunal member did not engage with explanations in his appeal notice for credibility concerns. The matter was remitted for reconsideration by a different tribunal member.
The judgment, delivered by Ms Justice Stewart on 11 December 2015, concerned a judicial review of the tribunal’s decision of 18 December 2012. The appeal had been decided on the papers, without an oral hearing, following a finding that the applicant had previously applied for asylum in another state party to the Refugee Convention.
The applicant’s account was that he had supported and later joined Togo’s opposition Union des Forces du Changement party. He alleged that authorities persecuted him because of his political activity, including stabbing him in the eye during a 2005 demonstration, detaining and beating him, destroying his shop in 2007, and beating and detaining him again in 2010. He said he escaped to Ghana in late 2011 and travelled to Ireland in January 2012. These were allegations in his asylum claim, not findings made by the High Court.
The tribunal had affirmed a negative recommendation by the Refugee Applications Commissioner. It found aspects of the applicant’s account not credible, including his explanation of his earlier stay in France, his return to Togo, his connection with the opposition party and how he was freed from detention. It also concluded that a medical report describing injuries as “typical of” abuse did not overcome those credibility findings. The tribunal further said that, even if the account were credible, information about opposition party members working with the Togolese government did not support an objectively well-founded fear.
The applicant argued that the tribunal had ignored explanations in his detailed notice of appeal and had not properly assessed the medical report or alleged past persecution. The respondents disputed those claims, arguing that the case was inadequately pleaded and that the tribunal had considered the evidence and was entitled to assess its weight.
Justice Stewart said a tribunal deciding a paper-only appeal must exercise “extreme care,” because the applicant cannot appear to explain perceived inconsistencies. While the tribunal decides what weight to give each item of evidence, it must take the notice of appeal into account. The judge found that the explanations offered there for the negative credibility findings “were not engaged with” in the tribunal’s decision, leaving the applicant unable to tell from the decision whether they had been considered.
The court rejected the respondents’ pleading objection in the circumstances. It did not address the applicant’s other complaints, which arose from the credibility findings it had held untenable. Because the hearing was telescoped, the court granted leave and an order of certiorari quashing the decision, and remitted the case for reconsideration by a different tribunal member. It did not determine whether the applicant qualified for refugee status.