R.A. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 830
• Docket Number: [2011 No. 1186 J.R.]
• Court: High Court
• Date: 21 December 2015

IN THE MATTER OF THE REFUGEE ACT 1996, AS AMENDED

IN THE MATTER OF THE IMMIGRATION ACT 1999 AND

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

R. A.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELAND

RESPONDENTS

(No. 2)

[2015] IEHC 830

[2011 No. 1186 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – The Refugee Act 1996 – The Immigration Act 1999 – The Illegal Immigrants (Trafficking) Act 2000 – The European Convention on Human Rights Act 2003 – Leave to appeal to the Court of Appeal – Issue of utmost public importance – Conflict of opinion between two High Court judgments – Obligation to consider country of origin information where credibility is in question – Award of costs

Facts: Following the refusal of the High Court to grant an order of certiorari against the decision of the first named respondent, the applicant now sought leave to appeal to the Court of Appeal on two grounds: whether the first named respondent should request the Refugee Applications Commissioner (RAC) to investigate the authenticity of documents whenever required and whether the decision-maker was obliged to engage into the narrative discussion of country of origin information where such information was not positively rejected, including rejection of the credibility of the applicant.

Mr. Justice Richard Humphreys refused to certify the question as to whether the first named respondent should request the Refugee Applications Commissioner (RAC) to investigate the authenticity of documents whenever required on the basis that the question was already pending determination in the Court of Appeal in another case and subsequent certification would dilute the public interest. The Court, however, granted leave to the Court of Appeal on the second question concerning the obligation of the decision-maker to consider narrative discussion of the country of origin information being inconsistent with the decision and inclusive of negative credibility finding. The Court granted an order to award the costs of the proceedings including the reserved costs to the applicant on the condition that the applicant would expeditiously file an appeal before the Court of Appeal subject to a stay of 28 days from the date of perfection of the said order. The Court held that if the applicant failed to file an appeal within the prescribed time, there would be a permanent stay on the order for costs. The Court held that it was the discretion of the decision-maker to decide the extent to which he/she wished to engage into the narrative discussion of the country of origin information and not a legal obligation. The Court, however, found that since there were conflict of opinions on that issue, it would be appropriate to seek the redressal of the aforesaid issue in the public interest and to end the uncertainty of the law. The Court opined that there would be a departure from the normal rule "costs follow that event" in the present case as the applicant had met the threshold required under s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of December, 2015

1 Following my decision refusing certiorari in this case, R.A. v. Refugee Appeals Tribunal (No. 1) [2015] IEHC 686, Mr. Mark de Blacam, S.C. for the applicant has applied for leave to appeal by way of a certificate in that regard under s. 5 of the Illegal Immigrants (Trafficking) Act 2000. The application is opposed by Ms. Cindy Carroll, B.L., for the respondents. Costs also fall to be determined at this stage.

2 The application for leave to appeal centres on two issues, firstly whether the tribunal should have required the Refugee Applications Commissioner to investigate certain documents said to be of relevance to the claim, and secondly, whether I was correct in deciding not to follow the judgment of Eagar J. in M.M.S. v. Minister for Justice and Equality [2015] IEHC 659, delivered on 13th October, 2015.

Issue regarding investigation of documents

3 The issue under this heading is whether the Refugee Applications Commissioner should be requested by the tribunal to investigate the authenticity of documents where this is possible and in issue in an appeal. This issue has already been recognised as one of exceptional public importance by reason of the grant of a certificate allowing leave to appeal in the A.O. v. Refugee Applications Commissioner [2015] IEHC 253. However, in the substantive judgment in the present case, I did not enter into an examination of the issue for the simple reason that it was not pleaded (see para. 20 of the substantive judgment). There was no application to amend the pleadings in this case, although in fairness to Mr. de Blacam I would quite possibly have been reluctant to allow such an amendment as it would have potentially required this case to be adjourned until the conclusion of the A.O. case, and such an application would be more appropriate prior to the hearing date. The point relating to A.O., therefore, would not immediately appear to come within the category of issues arising out of the judgment itself, as required by the judgment of MacMenamin J. in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250.

4 Furthermore, it seems to me that the fact that there is already an appeal to the Court of Appeal on this issue would normally dilute any public interest in the point being certified a second time. Mr. de Blacam accepted the force of that proposition but suggested that the present case was a particularly good one to advance the argument, because of the importance of the documents in this case to his client. However, without absolutely ruling out such considerations in an appropriate case, such tactical considerations could at best only be part of the overall circumstances and do not seem to me to be necessarily decisive in terms of question of where the balance of public interest lies. Having regard to all of the foregoing matters I would decline to certify a question of law under this heading.

Whether the court was correct not to follow M.M.S.

5 Mr. de Blacam relies under this heading on the fact that in the present case, I declined to follow the decision in M.M.S. A conflict between the approach adopted by two High Court judges can normally only be resolved either by consensus of opinion over a long period of time at High Court level or alternatively by way of appeal to a higher court. The latter course is considerably faster and generally more in the public interest in terms of rule of law considerations, as it avoids the uncertainty associated with the first approach.

6 Mr. de Blacam also stresses that the issue of the extent to which a narrative consideration of country of origin information needs to be carried out is an important one as far as asylum decisions are concerned and one of very general application, arising potentially in every case.

7 It might be said that best practice would indicate that protection decisions should begin with a general consideration of the situation in the country of origin information, to set a context for the applicant's account, a proposition supported by some best practice manuals such as the Home Office Asylum Policy Instruction: Assessing credibility and refugee status (Version 9.0, 6th January, 2015) and Chapter 18 of Best Practice Guide to Asylum and Human Rights Appeals by Mark Henderson and Alison Pickup (Electronic Immigration Network, 2015). However while best practice is to be encouraged, it cannot be ordered unless it is also a legal requirement, which I have held it is not in a case where the credibility of the applicant is being rejected generally. A general practice of having some narrative discussion of the country of origin information by way of a scene-setting introduction in protection decisions may have some benefits in terms of promoting better decision-making and minimising unnecessary challenges on that ground. But because this is not a general legal obligation (except where the information is being positively rejected), that is a matter for the decision-makers themselves.

8 In the decision of the Court of Justice of the European Union in Case C-277/11, M.M. v. Minister for Justice and Equality, 22nd November, 2012 at para. 64 – 66, the court referred to a two-stage assessment of a need for protection, the first involving the establishment of factual circumstances and the second relating to the legal appraisal of that evidence, under Article 4 of the EU Qualification Directive, 2004/83/EC. While, for the reasons I gave in the substantive judgment in this case, I would not consider that the M.M. decision requires a narrative discussion of country of origin information in a case where on the facts, the applicant is considered generally incredible, it nonetheless is part of the background to the issue of the requirements of the Qualification Directive in this context. The factual circumstances referred to by the Court of Justice appear to be those of the applicant rather than wider and irrelevant circumstances in the country concerned, which do not assist an incredible applicant.

9 The essential point remains that the resolution by the Court of Appeal of a conflict between two High Court judgments is classically a potential point of law of exceptional public importance particularly where there is a huge and inevitable potential for the same issues to be raised time and again in future High Court cases.

10 Ms. Carroll submitted that it was so clear that M.M.S. was decided per incuriam that there was no necessity for a certificate, and that in any subsequent case where M....