Facts:
The applicant claimed to be a national of the Democratic Republic of Congo (“DRC”). She allegedly arrived in the State in 2007, having travelled from the DRC via Brazzaville and an airport in France. She claimed asylum. Her husband was living in Ireland at the time and had been granted leave to remain in the State. The Refugee Applications Commissioner refused her application and she unsuccessfully appealed to the Refugee Appeals Tribunal, whose decision she impugned in these proceedings.
She claimed to fear persecution in the DRC on account of membership of a particular social group and political opinion. She claimed to be a member of the “AJM” association which provided support for an opposition political party, the Movement for the Liberation of Congo. She stated that she fled the DRC because the authorities wanted to kill her. She claimed that following elections in the DRC she was the victim of an attack, which led to her fleeing her home and coming to the State.
The applicant’s central assertion was that the Tribunal erred in assessing her credibility because it proceeded on the mistaken basis that her claim was based on her husband’s case. She contended that she had two distinct aspects to her claims: first, that she had fled when her husband disappeared after which she relocated and returned to the DRC some years later; and, secondly, that she had also fled when her sister’s home was raided and she disappeared. The applicant also claimed that fellow members of the AJM disappeared and were murdered at that time.
The respondents contended that the applicant’s grounding affidavit did not comply with O. 40, r. 14 RSC, having been sworn in English by the applicant, despite the fact that she had needed an interpreter at her interview and oral hearing and was not fluent in English. In light of these complaints, the applicant had a translator translate her affidavit from English into French, and the translator made the appropriate sworn statement in that regard in a separate affidavit. The applicant then swore the affidavit in French. She submitted that the court had discretion to extend time owing to the oversight and error of her lawyers with regard to the swearing of the affidavit and asked the court to exercise its discretion and not to visit an injustice upon her through no fault of her own.
Reasoning:
The court held that the interests of justice would not be served by permitting a procedural point on the swearing of the grounding affidavit to prevent the applicant from obtaining an order of certiorari of an asylum decision. Therefore, before considering whether its discretion should be exercised to permit the applicant an extension of time in respect of her affidavit, it went on to consider the substantive merits of the application.
The court held that the Tribunal had made a fundamental error of fact by saying that the applicant’s claim for asylum was based on her husband’s failed claim. It pointed out that the applicant’s claim for asylum was based on her own personal involvement in politics. Even though significant negative credibility findings had been made by the Tribunal Member which by themselves might sustain a refusal of asylum, it was unable to sever the error in the decision because it was not possible to assess what weight was given to the misconception that the applicant’s claim was based on her husband’s failed claim. The court surmised that it was likely that it played a major role in the Tribunal’s final decision.
Accordingly, it held that it would be unjust not to extend time for the application for judicial review by reference to the initial defective grounding affidavit. It accepted that the applicant was not personally at fault in that regard and that it would be unjust to deprive her of the benefit of her proceedings because of technical errors by her advisors. In its view, the error of the lawyers acting for the applicant in failing to have the affidavit certified in the appropriate manner amounted to good and sufficient reason for extending the time.
Decision:
The court therefore extended time, granted leave and made an order quashing the Tribunal’s decision.
