The High Court quashed a decision and negative recommendation on a Sudanese man’s refugee claim, finding that the Refugee Applications Commissioner had not stated whether it accepted his claim to be a member of the Zaghawa tribe and had applied the wrong test to individual risk of persecution.
Ms Justice Iseult O’Malley said the tribal membership issue was central to the claim. The Commissioner’s report said the allegation could not be verified, but did not say whether it was accepted or rejected. The court rejected the respondents’ argument that the applicant could simply proceed on appeal as though no adverse finding had been made: the Refugee Appeals Tribunal would make a fresh assessment, so the tribal membership question would be determined for the first time there rather than reheard.
The judge also found that the report’s statement that the applicant had provided no convincing reason why he “as an individual” would be a target conveyed that he had to show an individual reason for persecution. The respondents did not argue that such a test was correct. The applicant’s case was based on his claimed membership of a group that the judgment said was targeted by government-backed militia forces in Sudan.
The court considered that the combination of errors likely explained why the Commissioner had not assessed future risk. It ordered the decision and recommendation quashed and the matter remitted for reconsideration. The judgment did not determine whether the applicant was a refugee or whether he faced persecution on return.
The applicant said his village in Darfur was attacked in March 2004 and that family members were killed. He claimed to have left Sudan in May 2005 after further attacks on Zaghawa people. The Commissioner accepted that he was from Sudan and that the Zaghawa were among groups targeted by Sudanese government militia forces, but concluded that he had not established a well-founded fear of persecution.
The judicial review hearing addressed whether the alleged errors were sufficiently fundamental to justify court intervention instead of relying on the statutory appeal. The applicant had also lodged an appeal to the Tribunal. The court noted that the appeal would be a full oral hearing, but concluded that this did not resolve the problem of the central tribal membership issue being determined there for the first time.
This is a private unchecked draft based on the supplied judgment text; the structured extraction below is unverified.