Court holds decision-maker not obliged to independently verify asylum documents absent special circumstances.

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 51

Record No. 2015/534

Peart J.

Hogan J.

Hedigan J.

BETWEEN/

A. O.

APPLICANT

- AND -

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

ATTORNEY GENERAL AND IRELAND

RESPONDENTS

- AND -

HUMAN RIGHTS COMMISSION

NOTICE PARTY

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 27th day of February 2017

1. To what extent is the decision-maker on an application for international protection obliged to investigate the authenticity of

documents relied upon by the applicant in those cases where the credibility of her account is under challenge? That is essentially the

issue which arises on this appeal from a decision of the High Court (Barr J.) delivered on the 17th day of April 2015 which quashed the

earlier determination of the Refugee Appeal Tribunal which had ruled adversely to asylum claim of the applicant in the present

proceedings: see AO v. Refugee Applications Commissioner [2015] IEHC 253.

2. The applicant is a Nigerian national who was born in May 1991. She arrived in the State as far back as 9th January 2007 when she

was 15 years old and was still a minor. The fact that, some ten years on from that date, she remains in the asylum system with her

case thus far unresolved is wholly unacceptable and, in its own way, speaks volumes as to how dysfunctional the entire immigration

system has been allowed to become. I recognise, of course, that the Oireachtas has recently endeavoured to reform and overhaul our

system of international protection with the enactment of the International Protection Act 2015. One can merely hope that the new

system will not produce cases like the present one where apparently endemic delays blight the lives of those forced to wait

indefinitely in our system of direct provision, while at the same time undermining public confidence in the effectiveness of our system

of public administration and the general integrity of our system of immigration control.

3. Turning now to the facts of the present case, the applicant’s case is that she was orphaned at the age of 13 and then sent to live

with her uncle. He in turn neglected her, forced her to live as a street vendor and denied her any education. The applicant claimed

that in 2006 - her uncle tried to force her to marry a friend of his known as “the Chief”. Both her uncle and his friend were, it is said,

members of a secret society known as the Ogboni Society. The applicant stated that when she refused to marry the Chief, her uncle

compelled her to leave his house.

4. The applicant then maintains that at that point she was abducted by a number of men who brought her to the Chief. She was then

falsely detained and not provided with any food. On the following day the Chief came and tried to rape her, but she screamed and the

Chief left the room. Sometime after that, while there was a party going on at the Chief’s house, one of the Chief’s servants allowed

her to escape.

5. The applicant next states that she was unwilling to go the police as she was very young and was not even sure where the Chief’s

house was located and nor did she know what to say to the police. The applicant maintained that while she was roaming the streets

she was then knocked down by a motorcycle. A woman who witnessed the accident came to her aid and brought her to hospital. The

applicant was unsure as to the duration of her stay in the hospital.

6. When the applicant was discharged from the hospital she went with the lady who had come to her aid with a view to staying with

her for a few days. When they reached the lady’s house, however, they saw that it was burning. The applicant stated that there was

a letter on the gate which instructed the lady to bring the applicant to the Chief and told her that if she did not do so, she and the

applicant would be killed. The letter did not give the name of the Chief, nor did it give any contact details for him, nor for that matter,

any address.

7. The lady who had assisted her up to that point now told the applicant that she could not stay at the house as she did not want

any further trouble. The applicant stated that when she was on the road crying, another lady came to her aid and brought her to the

African Refugee Foundation (“AREF”). The applicant said that she stayed at the Foundation for a period of ten days and was not

allowed outside. The lady who brought her to the Foundation brought the applicant her food in her room and this lady apparently told

Ms. O. to call her “aunty”. The applicant stated that people came to the Foundation and made threats as it was known that she was

residing there.

8. The applicant then says that after a number of days at the Foundation she was brought by the lady called “aunty” to an airport.

She did not know the name of the airport that she departed from. At the airport she was given a refugee card and a letter from the

Foundation. During the journey, the lady known as aunty would walk in front of her. They landed in an unknown country which, the

applicant said, was not an African country, but she was not informed where she was going. After they arrived in Ireland the applicant

said that she could not find this lady and she then proceeded to apply for asylum.

The application before the Office of the Refugee Applications Commissioner

9. In its report dated 3rd July 2009 prepared under s. 13(1) of the Refugee Act 1996 (as amended), the ORAC concluded that the

applicant’s claim failed on credibility grounds, saying that her statements lacked coherence and plausibility. While the ORAC could not

vouch for the authenticity of the two documents said to have come from AREF, it also pointed to difficulties presented by the letter

from the Foundation. The website given on the notepaper did not refer to the website used by AREF, but appeared rather “to be a

domain name for sale”. The telephone number given was not accurate and the email address was also missing a letter. The ORAC then

observed:-

“It is expected that the official letterhead paper for an organisation such as this would not contain these mistakes. This

serves to undermine the authenticity of this document.

The letter from the African Refugees Foundation states that the applicant was under their care for three months.

However, the applicant has stated that she was with this group for 10 days. There are other inconsistencies such as the

date when the applicant was thrown out of her uncle’s house. These inconsistencies also serve to undermine the veracity

of the information contained in the letter.”

The decision of the Refugee Appeals Tribunal

10. The applicant then appealed this decision to the Refugee Appeals Tribunal (“RAT”) which ultimately ruled adversely to her claim.

In its decision of 28th September 2009 the RAT made a number of adverse credibility findings against the applicant which can be

summarised as follows.

11. First, in relation to the note left at the lady’s gate, the applicant stated that there was no name on the note. The applicant was

not aware of the Chief’s name or address. The lady did not know the Chief. The note apparently stated that the lady should bring the

applicant to him, or he would kill both of them. The Tribunal member held that it was not credible that the Chief would not have given

some indication of his address or contact details to enable the lady to comply with his instructions. The Tribunal member furthermore

held that it was not credible that the Chief would not send someone to get the applicant, rather than leave a note on the front gate,

thereby allowing the applicant a further opportunity to escape.

12. Second, the Tribunal member pointed out that the applicant did not know the name of the lady who had first brought her to

hospital and who had thereafter brought her to her home with a view to the applicant staying with her for a number of days. The

Tribunal member held that it would be reasonable to expect that the applicant would have known at least the first name of this lady.

13. Third, the Tribunal member noted that the applicant had stated that:

“…the lady who organised her travel did not tell her where she was going and she did not see her travel documents. The

applicant was unaware of what country they transited in and could only say that the country was not African. The

applicant said that the only document she had signed in Nigeria was her refugee card and she was not told if a passport

had been prepared for her travel. After she arrived in Dublin airport this lady left the applicant and never returned. It is

difficult to believe that a lady who wanted to assist the applicant would not have allowed [her] to travel with such limited

information about her travel arrangements and then would have abandoned [her] in a foreign country.”

14. Fourth, the Tribunal member pointed to the fact that the document submitted by the applicant as having emanated from the

Foundation contained a number of discrepancies. This letter from the Foundation – which, as the Tribunal member observed, was

undated - had set out the applicant’s background and requested that she be treated as a refugee.

15. The first discrepancy was that the document stated that the applicant had been raped, whereas the applicant’s own evidence

was that she was not raped. The second discrepancy was that the document had claimed that the applicant remained under the care

of AREF for three months, whereas the applicant’s own evidence was that she remained at the Foundation for ten days. The third

discrepancy was that the document recounted that the applicant had left her uncle’s home in August 2006, whereas the applicant’s

evidence at her s. 11 interview was that she left her uncle in November/December 2006. The fourth discrepancy was that the name

of the auditors of the Foundation on the letterhead is spelt incorrectly (“Price Waterhouse Coppers” instead of

“PricewaterhouseCoopers”) as is the acronym UNHCR (spelt UNICR). The fifth discrepancy was that, as outlined in the s. 13(1) report

prepared by ORAC, some contact details on the letterhead do not match the details contained on the AREF website, something which

the Tribunal concluded would be unusual for the official letterhead of such a reputable organisation.

16. The Tribunal member further added that the identity card which the applicant claimed had been supplied by the Foundation:

“declared the applicant to be a refugee despite the fact that she was under the care of this organisation in Lagos, her

home country….The applicant’s claim of having stayed in this facility [and being] deemed a refugee by this organisation

and then subsequently assisted to Ireland by a person in this organisation is not credible.”

17. The Tribunal accordingly found that “many discrepancies arise with these documents and it is unlikely that they are authentic”.

The High Court decision

18. In his judgment Barr J. concluded that the Tribunal’s findings on credibility could not be sustained. He first noted that:

“In relation to the credibility findings on the matters other than the letter from AREF, I am satisfied that in reaching a

conclusion that the narrative was not credible, the Tribunal failed to take adequate account of the fact that the

applicant was a minor and an orphan at the time of the matters recounted by her. On her account she was subjected to

a very frightening experience. The fact that she did not know the name of the lady who came to her aid after the road

traffic accident, was understandable given her young age at the time. Furthermore, the fact that she did not know the

name or address of the Chief was likewise understandable.”

19. Barr J. also concluded that the Tribunal had fallen into error by not scrutinising the documents itself and taking further steps to

establish whether it was a forgery. As the judge explained:

“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 M.R. in Associated Provincial Picture Houses v

Wednesbury Corporation [1948] 1 K.B. 22. 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…”

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.”

20. Barr J. then delivered a supplementary judgment in which he granted the appropriate certificate of leave to appeal pursuant to s.

5(3)(a) of the Illegal Immigrant (Trafficking) Act 2000 (as amended): see AO v. Refugee Appeals Tribunal [2015] IEHC 382. The two

certified points of law of exceptional public importance were in the following terms:

(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 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 s. 19(1) of the Refugee Act 1996 (as amended)?

The challenge to the Tribunal’s credibility assessment

21. As I have already noted, the Tribunal found against the applicant on essentially two separate grounds. The first was that her

narrative account was not found to be credible and the second was that the documentary materials submitted on her behalf were

found to contain discrepancies and inconsistencies. While both grounds are linked, it is nevertheless convenient to consider both

grounds separately.

22. So far as the narrative account is concerned, I find myself taking a different view from that of the High Court. I appreciate that,

as Barr J. has indicated, the applicant was a minor (and, indeed, an orphan) at the time of these events, but this was also a factor of

which the Tribunal member said that she was fully cognisant and which she sought to bear in mind. Even if it might be thought it was

understandable that a young orphan (then aged just 15 years) might not know the name of the lady who came to her assistance

after the traffic accident, it should also be observed that, on the applicant’s own account, this lady also came to visit her in hospital

and upon discharge she went with this lady to the latter’s house with the expectation of staying with her for at least a few days. If

the Tribunal considered that it was to be expected in the circumstances that the applicant would have known at least the first name

of the lady in question, I cannot say that this was an unreasonable conclusion on the part of the Tribunal member.

23. One might likewise agree that the applicant should not necessarily be expected to know the name or address of the Chief. The

applicant’s failure to know these particular details was not, however, at the heart of the Tribunal’s adverse credibility conclusions: it

was rather that the entire story lacked – to borrow the language of ORAC – “coherence and plausibility.” This in its own way is

illustrated by the account given by the applicant in respect of the second lady (“aunty”) who is said to have assisted her in her trip

from Nigeria by plane to one (unknown) destination and then on arrival in Dublin suddenly left her. As the Tribunal member observed, if

this lady had indeed wished to assist the applicant, it is hard to understand why she imparted such little information to her about the

travel arrangements and then suddenly departed on arrival in Dublin airport, effectively abandoning the applicant in a totally strange

country in which she knew no one.

24. There was, moreover, an oral hearing before the Tribunal and the Tribunal member noted in her determination that she had had an

opportunity to observe the applicant at the appeal hearing. The general lack of coherence, detail and plausibility in the applicant’s

narrative stem directly from her own account to both the ORAC and the Tribunal member. In these circumstances, I cannot say that

the careful and thorough treatment and examination of the applicant’s narrative by the Tribunal member in the determination can be

impugned on grounds of reasonableness and, to that extent, I respectfully disagree with the conclusions of the trial judge to the

contrary.

The assessment of the documentary material supplied by the applicant

25. Turning next to the assessment of the documentary material, I agree that the issue as to whether these documents are authentic

is of central importance to the credibility assessment. If, for example, the documents which the applicant maintained came from the

Foundation were shown to be authentic, they would certainly cast the asylum claim in a new light.

26. This was the very point made by Cooke J. in his seminal decision in IR v. Minister for Justice and Equality [2009] IEHC 353. In that

case the applicant claimed to have been imprisoned and suffered persecution in Belarus by reason of his involvement in an opposition

party. The applicant had, however, been found to have given incorrect (or, at least, substantially incorrect) answers to certain

questions concerning contemporary Belarusian politics in the course of the interview process. These omissions led the Tribunal to the

conclusion that he could not have been politically involved in the manner in which he claimed, since if he had been so involved it

might have been expected that he would have been able to answer these questions correctly.

27. Although Cooke J. held that this conclusion could not in itself be faulted, he also found that the matter did not end there. The

applicant had also claimed that he had, for example, been convicted for his political activities by a Belarusian court and sentenced to

a term of imprisonment and he produced what he claimed were Court documents relating to his conviction and sentence. The Tribunal

had made no finding concerning the authenticity of these documents, reasoning that this was unnecessary given the earlier credibility

finding.

28. Cooke J. noted, however, that the applicant’s case also rested on documentary evidence, including a police report, a court

decision and verdict, a handwritten letter said to be from the applicant’s cell mate in the Belarus prison, the newspaper article said to

have been written by the applicant’s girlfriend with his photographs and a sample of a “wanted” poster or leaflet said to have been

issued by the Belarus authorities naming the applicant and one other individual. Cooke J. then said:

“The Court considers that what is crucial about this material so far as concerns the legality of the process by which the

conclusion on credibility in the contested decision was reached, is that none of it is referred to anywhere in that decision

except insofar as it might be said to have been included in the phrase “The Tribunal has considered all the relevant

documentation…” which appears in the Conclusion at section 7….. It is true, of course, ….that the mere existence and

submission of such documents does not necessarily render untenable a judgment as to the lack of credibility of the oral

testimony of the applicant. Indeed, counsel pointed out that even on a cursory examination of the translations of the

court documents there were discrepancies which might put their authenticity in question. Different amounts appear to be

given for the same fine and the Bereza court verdict of 15th May, 2004 refers to the applicant having no previous

convictions and yet a few lines later it refers to a previous conviction as an aggravating factor in the sentence.”

29. The judge added:

“Indeed, it might well be that on closer scrutiny, some or all of these documents might be shown to be false and even to

have been fabricated for the very purpose of the asylum application. However, the girlfriend’s article, for example, looks

superficially to be in an original newspaper surrounded by other typical items, advertisements and so on, but it could

conceivably be shown perhaps that the names of the author and the photographer in the by-line are names the girlfriend

and the applicant have adopted in order to claim asylum. Thus, it may all be shown to be an elaborate contrivance and

fraud.

Nevertheless, unless and until such issues are addressed by the appropriate decision-maker, from the point of view of the

validity of the contested decision as it now exists, the fundamental point is that this was, at least on its face, original,

contemporaneous documentary evidence of potentially significant probative weight in corroborating key facts and events.

If it is authentic, it may prove that the applicant has suffered persecution for his political activities. If that is so, then the

judgmental assessment that is made of the quality of his answers to the questions about the BPF may possibly assume an

entirely different weight when all of the evidence, both testimony and documentary, is objectively weighed in the

balance.”

30. All of this led Cooke J. to the following conclusions:

“The Court accepts that there may well be cases in which an applicant relies partly on oral assertions, partly on

documents, and partly on country of origin information and in which the decision-maker has sound reason to conclude

that the oral testimony is so fundamentally incredible that it is unnecessary to consider whether the documents are

authentic and whether the conditions in the country of origin are such that the claim could be plausible. The decision-

maker in such a case is finding that what the applicant asserts simply did not happen to him. In the present case,

however, the situation is materially different because the adverse finding of credibility is effectively based on the Tribunal

member’s premise as to the level of knowledge to be expected and the apparent lack of that knowledge, while the

documents have the potential to establish that specific events did happen and happened to the applicant. It is this which

gives rise to the need for the whole of the evidence to be evaluated and the analysis to be explained.

In the Court’s judgment, the process employed by the Tribunal member in reaching the negative credibility conclusion as

disclosed in the contested decision was, therefore, fundamentally flawed because the documentary evidence which had

been expressly relied upon before the Commissioner and in the notice of appeal and which was on its face relevant to the

events on which credibility depended, was ignored, not considered, and not mentioned in the contested decision. It is

correct, as counsel for the respondents submitted and as is confirmed by the case law summarised at the beginning of

this judgment, that a decision-maker is not obliged to mention every argument or deal with every piece of evidence in an

appeal decision at least so long as the basis upon which the lack of credibility has been found can be ascertained from

the reasons given. However, in the view of the Court, that proposition is valid only when the other arguments and

additional evidence are ancillary to the matters upon which the substantive finding is based and could not by themselves

have rendered the conclusion unsound or untenable if shown to be correct or proven.

That cannot be said to be the case here. When the Tribunal member says in the decision, “He claims to have spent six

months in prison on account of his political activities,” and then finds that the applicant lacks the political knowledge one

would expect from someone with that commitment, the Tribunal member is clearly indicating that he believes the applicant

was never in prison or, at least, never imprisoned for the political offences he claimed. But if the documents are authentic

and are correctly translated, the applicant was indeed in prison and the premise on which the conclusion has been made

is therefore no longer tenable. The process is, therefore, flawed and the analysis incomplete.

Accordingly, the Court finds that the contested decision in this case is sufficiently flawed to warrant its being quashed.

The Tribunal member has erred in law in failing to consider all of the relevant evidence on credibility and adequately and

objectively to weigh it in the balance in reaching a conclusion on that issue. Where, as here, documentary evidence of

manifest relevance and of potential probative force is adduced and relied upon, the Tribunal member is under a duty in law

to consider it and if it is discounted or rejected as unauthentic or unreliable or otherwise lacking probative value, there is

a duty to state the reason for that finding.”

31. The same can broadly be said here. If the AREF documents were indeed authentic they would lend considerable weight to the

general credibility of the applicant’s account. They would, at a minimum, tend to show, for example, that she did stay at the

Foundation’s premises and they thus corroborate at least one significant element of her general narrative. But are these documents

authentic?

32. As Barr J. pointed out in his judgment in the High Court, the general approach of the courts to the question of the authenticity of

documents submitted as part of an international protection claim was addressed by Clark J. in her judgment in Nya v. Refugee Appeals

Tribunal (High Court, 5th February 2009). In that case Clark J. referred to two UK decisions which were on point.

33. In the first of these, R.P. (Proof of Forgery) Nigeria [2006] UKIAT 00086, the only evidence of forgery was limited to the Entrance

Clearance Officer’s own assessment of the authenticity of a remittance advice. The (UK) IAT held that evidence to be “wholly

insufficient to establish that a document is a forgery”. In the second case, O.A. (Alleged Forgery; Section 108 Procedures) Nigeria

[2007] UKIAT 97, the question involved whether a bank statement was a forgery. The immigration judge, having heard evidence

pursuant to s. 108 of the (UK) Immigration Act 2002, accepted the evidence of forgery given at the private portion of the hearing,

but without giving reasons for doing so. An order for reconsideration was made on the basis that the judge’s determination gave rise

to a procedural irregularity in respect of the s. 108 hearing.

34. When the matter was reconsidered by another immigration judge, that judge affirmed the following general principle:-

“In RP (Proof of Forgery) [2006] UKIAT 00086, the Tribunal emphasised that any allegation of forgery must be proved by

the person making the allegation. The standard to which the allegation must be proved is the civil standard of a balance

of probabilities but, due to the seriousness of the matter in issue, it is at the upper end of the scale. Whether the

document in question is proved to be a forged document will have to be decided on the evidence as presented in the

case as a whole. It will not be determined solely on the basis of the evidence (if any) which shows whether the document

is a forged one.”

35. Having referred to these two UK decisions, Clark J. then continued as follows:-

“I am satisfied that although these cases relate in part to the procedures under s. 108 of the UK legislation, of which

there is no Irish equivalent, the general principles set out in relation to the evidentiary obligations of the decision-makers

in cases where documents are alleged by the decision makers to be forged are equally of application in this jurisdiction. I

accept that in the vast majority of cases where documents of dubious authenticity and provenance are produced, the

cases are invariably determined on a multifaceted credibility assessment and rarely rely on the acceptance or rejection of

a single document…it may well be documents are forged. This Court cannot tell whether they are genuine or fake, but fair

procedures require that if the Tribunal Member makes findings pertinent to the authenticity of key documents, that finding

should be based on something more than the Tribunal Member’s own opinion. If the falsity of the documents was patently

obvious, he ought at the least to have explained in his decision how and where the documents were found to be falsified,

fake or contrived.”

36. Applying these principles to the present case, I think it plain that the Tribunal member did not base her conclusion that these

documents were false simply by reference to her own opinion. Rather, she gave detailed reasons for her conclusion that the

documents were not authentic. The reasons given included the fact that the letterhead contained obvious errors (e.g., “Price

Waterhouse Coppers”, “UNICR”), the domain name given was clearly a generic domain name for sale and the email address given for

the Foundation was incorrect.

37. Counsel for the applicants relied heavily on the decision of the European Court of Human Rights in Singh v. Belgium (Application

No. 33210/11)(2 October 2012). That was a case where the applicants had originally arrived in Brussels Airport on a flight from

Moscow. They objected to their deportation to the Russian Federation because they feared in turn repatriation to Afghanistan in

breach of Article 3 of the European Convention of Human Rights. The applicants maintained that they were Sikhs who had fled from

Afghanistan in 1992.

38. Their claim for refugee status was, however, rejected by the Belgian asylum authorities because they had failed to prove their

Afghan nationality. In the course of an appeal the applicants provided new documents, namely, emails between their legal

representatives and a representative of the Belgian Committee for the Support of Refugees (a partner of the High Commission of the

United Nations for Refugees (UNHCR)) and the UNHCR in New Dehli. The UNHCR representative in New Delhi had furnished, by way of

attachments to the emails, “attestations” which indicated that the applicants had been recorded as refugees under the UNHCR

mandate. Despite the emergence of this new documentation, the Belgian appeal tribunal nonetheless ruled adversely to the claim of

Afghan nationality. The appeal tribunal determined that the new documents were to be treated as having no convincing value on the

basis that they were of a type that were easy to falsify, saying that the applicants had failed to provide the original copies of the

relevant documents.

39. In its judgment the ECtHR found a breach of Article 13 ECHR (the effective remedy provisions) coupled with Article 3 ECHR.

Pointing to the otherwise potentially serious consequences for the applicants, the Court concluded (at para. 103 of the judgment)

that the obligation of the state authorities was to show that they had been as rigorous as possible and that they had carried out a

careful review (“un examen attentif”) of the complaints based on Article 3 ECHR. The Court observed that since the documents were

at the heart of the request for protection, the rejection of them without “checking their authenticity” fell short of the careful and

rigorous review expected of national authorities by the effective remedy requirements of Article 13 ECHR in order to protect the

individuals concerned from torture, harm or inhuman or degrading treatment under Article 3 ECHR in circumstances when a simple

process of enquiry of the UNHCR would have resolved conclusively whether they were authentic and reliable.

40. For my part, however, I do not read Singh as laying down a universal, ex ante obligation on all Contracting States to conduct

their own review of the authenticity of every foreign document supplied by an asylum claimant in the manner urged by counsel in the

present case. It is clear, of course, that there may be special cases with particular facts where it would be simply remiss of the State

not to conduct such an inquiry of its own volition. But not every case will be potentially as straightforward as Singh: considerations of

relevance, feasibility and cost are also relevant considerations. There may also be many instances where the claimant is in a position

to make his or her own inquiries and supply further documentation or other information to the authorities.

41. At all events, I do not see that the Singh obligation is triggered here. The documents which had been supplied in that case were

rejected by the Belgian appeal tribunal on the basis that documents of that kind were easy to falsify and no originals had been

supplied. Critically, however, that tribunal had never concluded, following its own review of the documents, that they were not

authentic: it simply said that they were of a kind that were easily falsified.

42. The circumstances of the present appeal are rather different. Here the Tribunal member reviewed the documents and concluded

that they were “unlikely to be authentic” by reference to a series of quite obvious discrepancies which she described and identified.

While making all due allowances for the applicant’s minority, it was open to her (or, at least, her legal advisers) to take their own

steps to verify the AREF documents had they been minded to do so. Indeed, in one case at least, a conclusion that documentation of

this kind was inauthentic has been quashed on judicial review when it emerged in the course of the judicial review proceedings that

the Tribunal’s conclusion regarding the falsity of a key detail was simply factually incorrect: see K. v. Minister for Justice and Equality

[2011] IEHC 473.

43. In that case a critical feature of the applicant’s claim was that family members had been shot dead and this was the reason she

needed to flee. To support this claim death certificates issued by a particular hospital in Uganda had been tendered in evidence

before the Tribunal. The Tribunal rejected the authenticity of the death certificates on the ground that the wrong post office box

number for the address of the hospital in question had been entered on the certificates. On further examination it emerged that the

Tribunal had been in error and that in fact the certificates actually bore the correct box number. The decision was accordingly

quashed.

44. By analogy with the reasoning in K., it would have been open to the applicant in the present case to show that, for example, the

ORAC and the Tribunal were in error in concluding that the website address was simply a domain name or the email address contained

on the document’s letterhead was in truth correct.

Conclusions

45. Summing up, therefore, I would answer Question 1 of the certified points of law by saying that a decision-maker is not obliged as

a general rule to conduct his or her own investigations in order to vouchsafe the authenticity of a document relied on by an applicant

for international protection, although there may be special circumstances where this is indeed required. While it is clear from the

decision of the European Court of Human Rights in Singh v. Belgium that Contracting States may be under such an obligation in

particular cases where the authenticity of the documentation is critical and the implications for the claimants otherwise potentially

grave, there is, however, no general rule to this effect.

46. Contrary to the conclusion of the High Court in the present case, the Tribunal member cannot be faulted on this account. She

plainly conducted a careful review of the documents relied on by the applicant and concluded for stated reasons that they were

unlikely to be authentic. As I cannot say that the adverse credibility conclusions which she reached in present case (whether so far

as the plausibility of the applicant’s narrative or the inauthentic nature of the documentary materials relied on by the applicant) were

unreasonable in law, I would therefore allow the Minister’s appeal.

47. In these circumstances it is unnecessary to express any view on Question 2.