Court of Appeal: Refugee Appeals Tribunal breached European Regulations by not evaluating all relevant documents

An asylum seeker who had adverse credibility findings against him in the Refugee Appeal Tribunal has been granted an order of certiorari, quashing the Tribunal’s decision.

Overturning the decision of the High Court to uphold the Tribunal’s findings, the Court of Appeal found that, in making an assessment as to credibility based upon some of the material provided, the Tribunal had failed to comply with the obligation in the European Communities (Eligibility for Protection) Regulations 2006 to examine all relevant material.

Factual Background

In May 2011 the applicant, RA, arrived in Ireland and immediately claimed asylum.

His case was that he had been the leader of the youth section in his local area of the Front Populaire Ivoirien (FPI) in the Ivory Coast and that he had been forced to flee the country after the outbreak of extensive civil conflict. He said that in April 2011, he went to work in Abobo, and was informed by his neighbours that his house had been burnt down. He said that he was arrested as an FPI supporter, but was later released and went into hiding.

In July 2011, the Office of the Refugee Appeals Commissioner (ORAC) found against RA’s principal claims due to several inconsistencies in his narrative that were distinct from the COI information available to the ORAC. Accordingly, “in a very careful ruling”, the ORAC made adverse credibility findings against RA.

Refugee Appeal Tribunal

In November 2011, the Tribunal concluded that RA’s account contained such inconsistencies that his general credibility was undermined.

The Tribunal also noted that some of the documents submitted by RA contained a number of errors; e.g. his electoral card misspelled his first name, and the entry for date of birth read: “Date de naissance: 20 Mais 1978”, so that the French word for “May” was misspelt.

Finding against RA, the Tribunal said that the documents he provided did not “represent a truthful account of circumstances”; that the documentation did not assist RA “in circumstances where his credibility is found wanting to such a degree that the very basis of his claim is not believed”; that he was “vague and evasive in his manner of answering questions raised by the Tribunal”, and that this was “a deliberate attempt by him to confuse the evidence.”

High Court

RA sought judicial review of the Tribunal’s decision. A key part of Justice Humphreys’ judgment addressed the issue of the extent to which the decision-maker was obliged to consider COI information.

Justice Humphreys “felt that he was not obliged to follow” MMS (Sri Lanka) v Minister for Justice and Equality IEHC 659 “in view of the established principles enunciated” in Irish Trust Bank Ltd. v Central Bank of Ireland ILRM 50, “as that decision had been given per incuriam as relevant earlier authority which was directly on point had not been opened to the Court”.

Justice Humphreys rejected RA’s application, concluding that in view of the Tribunal’s rejection of the applicant’s credibility, there was no obligation on the Tribunal to assess the COI in a narrative fashion.

Court of Appeal

In the Court of Appeal the certified point of law raised the question of the extent to which the decision maker is obliged to have regard to COI, namely:

“Whether an asylum decision maker is obliged to engage in a narrative discussion of country of origin information in a case where such information is not being positively rejected (in the sense that the decision is positively inconsistent with such information, as opposed to simply that the information is not considered to be relevant, necessary for the decision or sufficiently supportive of the claim made) including where the credibility of the applicant is being rejected generally.”

Delivering the judgment of the Court, Mr Justice Gerard Hogan held that:

Article 5(1)(a) of the European Communities (Eligibility for Protection) Regulations 2006 did not impose an obligation to consult COI in every case, regardless of the circumstances. The decision-maker is obliged to do so only where such information is relevant in the circumstances of the particular case.

The certified question does not readily lend itself to fixed, a priori rules, since the extent to which (if at all) the decision maker should consult COI and refer to such material in the decision must depend on all the relevant circumstances. The principles articulated in IR v. Minister for Justice IEHC 353, 4 IR 144 provide very useful guidance in any assessment of credibility issues in cases of this kind.

The Tribunal was obliged in this instance to consider the COI relevant to any credibility assessment of RA’s claims, given that these claims involved particular and specific details in relation to events which allegedly took place in April and May 2011 and which were not generally known to those who did not live in the Ivory Coast. The failure to do so in this instance amounted to a breach of the requirements of Article 5(1)(a) of the 2006 Regulations and rendered the decision invalid; and the High Court fell into error in failing to quash the decision on this ground.

While, in principle, the Tribunal member was entitled to draw adverse credibility findings from the inconsistencies contained in RA’s own testimony, he fell into error in failing to consider key documents relied on by RA. If these documents were indeed authentic, they would place RA’s claims regarding his political involvement in an entirely new light. The Tribunal member’s obligation was to make an overall assessment of credibility based upon an evaluation of all potentially relevant information and not just some of that material.

Allowing the appeal and granting an order of certiorari, Justice Hogan held that the Tribunal member failed to comply with the obligation in the 2006 Regulations to examine all relevant documents supplied by RA; and subsequently the High Court had erred in not quashing the Tribunal’s decision on this ground.