R.S. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 24 March 2017
• Neutral Citation: [2017] IEHC 187
• Court: High Court
• Docket Number: [2011 No. 634 JR]
• Date: 24 March 2017

[2017] IEHC 187

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2011 No. 634 JR]

BETWEEN

R.S.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

BERNARD MCCABE (SITTING AS THE REFUGEE APPEALS TRIBUNAL)

IRELAND

ATTORNEY GENERAL

RESPONDENTS

(No. 2)

Asylum, Immigration & Nationality – S. 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000 – Leave to appeal to the Court of Appeal – Point of law of exceptional public importance – Assessment of evidence

Facts: The applicant sought leave to appeal to the Court of Appeal on the basis that certain questions raised by the applicant pertaining to the substantive judgment involved the point of law of exceptional public importance. The questions formulated by the applicant were in relation to the obligation of a decision-maker in providing reasons for choosing one piece of information over another while assessing fear of persecution; weight attached to medical reports; and application of s. 11B(b) of the Refugee Act 1996.

Ms. Justice Stewart refused to certify all the questions. The Court held that it was well settled that a decision-maker was not mandated to offer any explanation as to why he had chosen one piece of information over another while making an assessment of fear of persecution. The Court held that it was also known that a decision-maker was at liberty to give appropriate consideration and weight to the medical reports presented before it. The Court held that the applicant did not assert any procedural lapses or lacunae in the manner in which the medical evidence was assessed by the decision-maker. The Court held that a finding made under s. 11B(b) of the Refugee Act 1996 was severable from the rest of the decision and the law pertaining to s. 11B(b) was not of extreme public importance, thereby warranting the grant of the certificate.

JUDGMENT of Ms. Justice Stewart delivered on the 24th day of March, 2017.

1 This is an application pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000, as amended, which provides that:

‘The determination of the High Court of an application for leave to apply for judicial review [pursuant to s. 5 of the Act] shall be final and no appeal shall lie from the decision of the High Court to the [Court of Appeal] … 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 [Court of Appeal].’

The facts of this case are set out in the Court's previous decision in this matter, R.S. v. Minister for Justice and Equality & Ors [2016] IEHC 550.

2 The principles and requirements governing the grant of a certificate are set out in Cooke J.'s decision in I.R. v. Minister for Justice [2009] IEHC 510 and are as follows:

A. The requirement goes substantially further than the point of law as it emerges in or from the case currently before the Court. It must be one of exceptional public importance, in being a clear and significant requirement.

B. The jurisdiction to certify such a case must be exercised sparingly.

C. The point of law in question must stand in a state of uncertainty. It must be in the common good that this point be clarified, so as to enable the courts to administer that law, not only in the instant case, but in such future cases.

D. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

E. The requirements regarding exceptional public importance and desirability in the public interest are cumulative requirements. Although they may overlap to some extent, they require separate consideration by the Court.

F. The appropriate test is not simply whether the point of law transcends the individual facts of the case, since such an interpretation would not take into account the requirement of exceptionality.

3 The applicant has raised three points on which he seeks a certificate to appeal to the Court of Appeal. The first question the Court will deal with is as follows:

‘In assessing the applicant's fear of persecution is objectively justified, is an asylum decision-maker obliged to provide a reason or reasons for preferring one relevant piece of country of origin information over others where the latter information is consistent the applicant's claims, even where the personal credibility of the applicant regarding his account of events which occurred in the country of origin and during his travels from the country of origin has been rejected?’

4 It is well established under the law in this jurisdiction that the assessment of country-of-origin information (COI), and the weight to be accorded to it, is a matter for the decision-maker. The Courts have repeatedly found that a decision-maker does not have to set out every item of COI and state why each item is rejected or accepted. The applicant places heavy reliance on the decision of Edwards J. in D.T.V.S. v. MJELR & Ors [2007] IEHC 305 where, at p. 16 thereof, he states that it was not appropriate for the Tribunal Member to arbitrarily prefer one piece of COI over another. However, such a statement must be balanced against the facts of the case currently before this Court, namely the sheer volume of documentation furnished to the Tribunal Member. In my previous decision, I pointed out that little or no attempt was made by the applicant to synopsise or particularise same. Further, during the course of the hearing before the Court, it was conceded by the applicant that not all of the submitted COI (which exceeded some 1,200 pages, bound in 3 large ring binder folders) was relevant. A slim volume of the pertinent material was furnished to the Court in their place. I found that the applicant inundated the Tribunal with a large volume of non-specific documentation and then sought to challenge the Tribunal Member for not addressing all of that information, with the intent of attracting doubt to the process and the work of the decision-maker. I was not satisfied then, nor am I satisfied now, that this was a proper discharge of the applicant's responsibilities as a participant in the asylum process. The assessment of COI, and the weight to be attached thereto, is a matter peculiarly within the remit and responsibility of the Tribunal Member. I am not satisfied that there is any point of law of public importance that would warrant the grant of a certificate of appeal on this point.

5 The next point raised by the applicant relates to the treatment of the SPIRASI Reports. The Court is asked to certify the following question:

‘In assessing the expert medical evidence regarding torture, may an asylum decision-maker find that the medical practitioner using the Istanbul Protocol did not state with any particularity how and in what circumstances such sequelae, as set out in the medical report, came about and/or may he/she lend the report little or no weight on the basis of other credibility findings related to the applicant?’

6 I have already found that the manner in which the Tribunal Member dealt with the SPIRASI Report was within his remit and he was entitled to arrive at the conclusions set out in the impugned decision. The applicant is effectively arguing that a definitive statement by the Court of Appeal on how SPIRASI medical reports should be treated by Tribunal Members would be of assistance to asylum applicants and the operation of the Refugee Appeals Tribunal going forward. On the other hand, he has not pointed to any error in the manner in which this Court arrived at its decision. While it could be argued that it would of benefit the applicant if the Court acceded to an...