In QFC v. Refugee Appeals Tribunal, the Irish High Court granted leave to seek judicial review of a negative asylum decision on the basis that the decision-maker failed to assess the possibility of future persecution if returned to Somalia. The applicant in the case had been refused asylum on the basis of a lack of credibility with regard to the past persecution she allegedly suffered.
Justice Cooke noted the acute dilemma which faces decision makers in such circumstances. This dilemma arises when there is a finding of lack of credibility on the facts but the asylum seeker is indisputably from a very dangerous country. Justice Cooke held that, “any decision maker faced with a claim for asylum based upon a risk of persecution of any applicant who is accepted as being from Somalia must proceed with extreme caution and must reject a claim upon grounds of lack of personal credibility only when it is compellingly necessary to do so”.
Justice Cooke then granted leave on the grounds of possible future persecution. He held that the fact that the applicant had a child with a man who was not her husband could lead to persecution if she was returned to Somalia. The lack of credibility with regard to past persecution did not exclude the possibility of future persecution. He held that “the particular story told by the asylum seeker may correctly be disbelieved but it may yet be important to examine the possibility that the person in question may nevertheless have a valid Convention based reason for being unable or unwilling to return to the country of origin especially where it is known to be a place of internal conflict or of prevalent violence”.
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B.A.O. v. The Refugee Appeals Tribunal concerns a failure on the part of the Appeals Tribunal to give reasons for rejecting documentary evidence. Justice Hogan in the High Court granted leave to seek judicial review of the negative decision on this basis. The applicant is an Iraqi national who claimed that his parents were targeted and killed on the grounds of his father’s past involvement in Sadaam Hussein’s Ba’ath party. Country of origin information and other evidence strongly supported this claim, however the tribunal member did not properly consider this evidence or give reasons thereafter for rejecting it. Justice Hogan also held that the applicant should have been given the benefit of the doubt in relation to the truth of the facts of his claim, particularly considering that there had been no finding of a lack of credibility on the part of the applicant.
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In Akukwe v. Refugee Applications Commissioner, the High Court refused an application for an injunction to restrain the removal of an unsuccessful asylum seeker to the United Kingdom under the Dublin II Regulation. The case turned on the construction of the time limits of the transfer procedures under the Dublin II Regulation. The court considered whether a ‘fair issue’ was raised by the applicants with regard to their submission that the ‘take-back request’ to the United Kingdom was illegal as it was outside the two week time limit contained with the Dublin II Regulation.
The court held that their argument was unfounded and that, “it is important to bear in mind when considering the terms of the European Union legislation of this kind that it is not only the wording of the provision that must be considered, but the context and objective or purpose of the provision”.
Justice Cooke further held that in any event this is a case where the court would use its discretion to refuse to grant an injunction, on the ground that it would be contrary to public order. This finding was made on the basis of the refusal of refugee status by the United Kingdom and the subsequent illegal stay and employment of the asylum seeker within the United Kingdom and then subsequently Ireland.
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