AO v The Refugee Appeals Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 16 June 2015
• Neutral Citation: [2015] IEHC 382
• Court: High Court
• Date: 16 June 2015
• Docket Number: Record No. 2009/1194JR

[2015] IEHC 382

THE HIGH COURT

JUDICIAL REVIEW

Barr J.

Record No. 2009/1194JR

Between/

A. O.

Applicant

and

THE REFUGEE APPEALS TRIBUNAL

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

ATTORNEY-GENERAL AND IRELAND

Respondents

Asylum, Immigration & Nationality – S. 5 (3) (a) of the Illegal (Immigrants) Trafficking Act 2000 – S. 75 of the Court of Appeal Act 2014 – Certificate for leave to appeal to the Court of Appeal – Issue of exceptional public importance

Facts: The respondents applied for a certificate granting leave to appeal to the Court of Appeal arising out of the judgment of the Court in A.O. v Refugee Appeals Tribunal & Ors. [2015] IEHC 253. The respondents contended that there existed three questions that needed to be decided in the public interest.

Mr. Justice Barr granted the certificate for leave to appeal to the Court of Appeal regarding two questions: whether the effect of the court's judgment was to require the first named respondent to adopt an investigative role not provided in the Refugee Act, 1996 and whether by placing an obligation on the first named respondent to contact the creator/author of a document given in evidence by the applicant, the first named respondent was required to act contrary to s. 19 (1) of the said Act. The Court, however, refused to grant the certificate on the question as to whether the effect of the Court's judgment was to reverse the statutory burden of proof under s. 11A (3) of the said Act. The Court held that before granting a certificate under s. 5 of the Illegal (Immigrants) Trafficking Act 2000, the Court must ensure that the issues raised were of exceptional public importance, serving the common good and needed to remove uncertainties of law, with the first two requirements being cumulative. The Court found that the first named respondent, by requesting the Office of the Refugee Applications Commissioner to make reasonable inquiries regarding veracity of documents, would have fulfilled its duties under s. 16 (6) of the Refugee Act, 1996, and hence it was not obligatory on the first named respondent to itself conduct the investigations. The Court opined that the obligation of the first named respondent to preserve the confidentiality of the asylum seeker under the said Act and the effect of the judgment that required the first named respondent to contact the author of the document ran opposite to each other and thus led to ambiguity, which must be resolved in public interest.

JUDGMENT of Mr. Justice Barr delivered on the 16th day of June, 2015

1 This is an application by the respondents for a certificate of appeal to the Court of Appeal pursuant to s. 5(3)(a) of the Illegal (Immigrants) Trafficking Act 2000 (‘the 2000 Act’) in respect of points arising from this court's judgment in A.O. v. Refugee Appeals Tribunal & Ors. [2015] IEHC 253, delivered on 17th April, 2015. Section 5(3)(a) of the 2000 Act provides as follows:

‘(3) (a) The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

‘(b) This subsection shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.’

2 Under Section 75 of the Courts of Appeal Act 2014 this section applies to the Court of Appeal as it has, and still does, to appeals to the Supreme Court.

3 Arising out of the judgment of this court in A.O. v. Refugee Appeals Tribunal & Ors. [2015] IEHC 253, the respondents now request that this court certify the following questions as involving a point of law of exceptional public importance such that it is desirable in the public interest that an appeal should lie:

(i) Whether the effect of this court's judgment is to require the Refugee Appeals Tribunal to adopt an investigative role not provided for in the provisions of the Refugee Act, 1996 (as amended)?

(ii) Whether the effect of the court's judgment is to reverse the statutory burden of proof as provided for in section 11A(3) of the Refugee Act, 1996 (as amended)?

(iii) Whether by effectively placing an obligation on the Refugee Appeals Tribunal to contact the creator/author of a document tendered as evidence by the applicant, the court's judgment requires the Refugee Appeals Tribunal to act contrary to the duty of confidentiality imposed on it by section 19(1) of the Refugee Act, 1996 (as amended)?

Principles applicable to an application for a Certificate

4 The test under s. 5 of the 2000 Act for when an appeal will lie is a replica of provisions which previously applied to judicial reviews in the planning and environmental area. As a result, a degree of consensus has emerged from the case law in both the planning and environmental area and the asylum and immigration area. These were summarised by Cooke J. in I.R. v. Minister for Justice [2009] IEHC 510(‘ I.R. (No. 2)’), where he considered the principles established in Raiu v. Refugee Appeals Tribunal (Unreported, High Court, Finlay Geoghegan J., February 26, 2003), Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, and Arklow Holidays Ltd. v. An Bord Pleanála [2008] IEHC 2. The case of I.R. (No. 2) concerned an application for a certificate in relation to Cooke J.'s seminal decision in I.R. v Minister for Justice, Equality and Law Reform & Ors [2009] IEHC 353(‘ I.R. (No. 1)’).

5 On the basis of those authorities, Cooke J. stated, at para. 6 of his judgment in I.R. (No. 2), that the relevant principles were as follows:

(i) ‘It is not enough that the case raises a point of law: it must be one of exceptional importance;

(ii) The jurisdiction to grant a certificate must be exercised sparingly;

(iii) The area of law involved must be uncertain such that it is in the common good that the uncertainty be resolved for the benefit of future cases;

(iv) The uncertainty as to the point of law must be genuine and not merely a difficulty in predicting the outcome of the proposed appeal or in appraising the strength of the appellant's arguments;

(v) The point of law must arise out of the court's decision and not merely out of some discussion at the hearing;

(vi) The requirements of exceptional public importance and the desirability of an appeal in the public interest are cumulative requirements.’

6 In its judgment in A.O. v. Refugee Appeals Tribunal & Ors. [2015] IEHC 253, this court held as follows at paras. 29-30:

‘29. In relation to the questioned authenticity of the AREF documents, being the letter and the identification card, there was a duty on the decision maker to take steps to investigate the authenticity of the documents. They could have telephoned the numbers given in the letter itself, or as found on the website, and tried to ascertain whether the letter was genuine. Neither of these steps were taken. In the Australian case, Sun Zhan Qui v. Minister for Immigration and Ethnic Affairs [1997] FCA 1488, the following was stated in relation to the duty on a decision maker to carry out investigations in relation to questioned documents before the hearing:-

‘In my opinion these omissions [referring to investigations which could have been carried out] rendered her decision manifestly unreasonable, within the principle explained by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. It is now established that a failure by a decision maker to obtain important information, on a central issue for determination, that the decision maker knows to be readily available may result in the decision being branded an exercise of power so unreasonable that no reasonable person could so exercise the power…’

30. In the circumstances, I am satisfied that the Tribunal did not carry out sufficient investigation of the letter and ID card. The discrepancies identified in the letter certainly raised serious questions in relation to its authenticity. It was up to the Tribunal to take active steps to ascertain the authenticity of the documents. As already noted, the Tribunal could have tried to make contact with the Federation to see if the documents were genuine. They could have sent copies of the documents to the Federation and asked them to verify whether the documents were genuine. In the circumstances, it is appropriate to quash the decision of the RAT dated 28th September, 2009, on this ground.’

7 It is on foot of this part of the court's judgment that the present application for a certificate arises.

8 Counsel for the applicant did not disagree with the respondents' recitation of the law governing an application for a certificate. In particular, the applicant agreed that the key authority upon which this court should determine the respondents' application is the decision of Cooke J. I.R. (No. 2).

9 In relation to the respondents' submissions that a certificate should be granted, counsel for the applicant stated that he did not regard the questions which the respondents wish to refer to the Court of Appeal as being ones of exceptional public importance such that it is necessary to refer them to the Court of Appeal in the public interest.

10 I now turn to consider the three questions which the respondent has asked this court to certify.

The First Question – an investigative role for the RAT?

11 The first question which the respondent has asked the court to certify is whether the...