High Court declines to certify point of law regarding obligation to justify preference of country of origin information.

Neutral Citation Number: [2007] IEHC 451

THE HIGH COURT

DUBLIN

2005/1026JR

D.V.T.S

APPLICANT

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM & ORS

RESPONDENT

Mr Justice Edwards delivered his Judgment on Friday, 30th November 2007

1. This case was decided by me in July, and subsequent to my judgment an application was recently made to me on behalf of the

Minister for Justice Equality and Law Reform and the Refugee Appeals Tribunal, represented by Ms. Sara Moorhead S.C. for a

certificate pursuant to Section 5(3)(a) of the Illegal Immigrants Trafficking Act 2000, which is in the following terms:

"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."

2. I have been asked to certify a point of law for the consideration of the Supreme Court on the basis that the point in question is

both exceptional and of public importance. The question that I have been asked to certify is:

"Whether a tribunal member is obliged, when he has indicated that he has considered all the documents submitted and

perused same, to set out on the face of the decision the reason for preferring certain 'country of origin information' over

others."

3. I have had regard, in considering whether I would certify this question to the Supreme Court, to the decision in Raiu v. Refugee

Appeals Tribunal, which is reported or at least is available. The actual judgment that I have says "2003 Jill High Court", but I am not

sure if it's reported or not. In any event, a copy of the decision was handed in to me by Ms. Moorhead S.C., representing the

Applicant. I have considered it and I wish to refer, in particular, to the following passage from the judgment of Finlay Geoghegan J

which was delivered on the 26th February, 2003. She says, at page four of the judgment - that is, of the copy provided to me:

"The Oireachtas having exercised its discretion in a constitutionally permissible manner, the restriction enacted should be

construed in accordance with the normal rules of statutory interpretation. The general policy of section 5(3)(a) of the Act

of 2000 is to exclude all appeals from the High Court decisions referred to and only by way of exception from that general

principle to permit an appeal where the High Court grants the certificate specified in the subsection.

In considering the similar wording in Section 82(3)(b)(b1) of the Local Government Planning and Development Act 1963, as

amended in Irish Aspalt Ltd. V. An Bord Pleanála [1996]2IR, 179, Barrington J with whom all the other members of the

Court agreed, stated at page 185:

"The correct interpretation appears to me to be that the first portion of the provision under discussion is a

statutory provision and does exclude all appeals from the High Court to the Supreme Court in questions of Judicial

Review. This result is achieved by the words: "The determination of the High Court of an application for leave to

appeal for Judicial Review as aforesaid or for 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".

The subsection having excepted these cases from the appellate jurisdiction of the Supreme Court then goes on to create

what Mr. Collins, the Respondent, called "an exception to the exception". As Mr. Collins puts it, it is the subsection which

excludes the appeals but at the same time there is a provision whereby the High Court may as an exception to this

exception allow an appeal if the case involves a point of law of exceptional public importance and it is in the public

interest that an appeal should be taken to the Supreme Court.

Requirements that the point of law is of "exceptional public importance" and that "it is desirable in the public interest that

an appeal should be taken to the Supreme Court" are cumulative requirements, which, whilst they may overlap to some

extent, require separate consideration by the High Court. This was the view taken by McKechnie J in Kenny v. An Bord

Pleanála with which I agree.

The Oireachtas has clearly indicated in section 5(3)(a) of the Act of 2000 by the use of the word "exceptional" that not

all points of law of public importance may be certified. Many, if not most points of law which arise in a Judicial Review to

which Section 5(3)(a) of the Act of 2005 applies, will be of "public importance" in the sense that that term has been

construed by the courts particularly in the juris prudence relating to applications for security for costs on appeals to the

Supreme Court."

4. In this particular case, I have decided that I will not certify an appeal to the Supreme Court. I take the view that while on one

view of it there may be a point of law of public importance involved, I do not believe that it is a point of law of such exceptional

public importance that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

5. The reasons for my view in that regard are as follows. I do not consider that I decided anything particularly new or radical in the

judgment that I gave in July. Rather, I sought to apply well established principles which led me to a particular conclusion and gave

rise to a particular result in the case.

6. If I might just rehearse some of those well established principles. First of all, there is the principle that a judicial or quasi judicial

tribunal must have regard to all of the evidence before it and cannot cherry pick the evidence. If it is to act judicially it must consider

all of the evidence put before it. If there is a conflict with respect to the evidence, such that the tribunal cannot resolve that

conflict, other than by preferring one piece of evidence over another piece of evidence for good and substantial reasons, then it is

incumbent on the tribunal or court, as the case may be, to state clearly its reasons for doing so. It is well established that a court or

tribunal may not act arbitrarily, it must act judicially and it must proceed on the basis of what is reasonable and rational. In order that

an appellate tribunal might know whether the tribunal at first instance has behaved reasonably and rationally it must know the

reasons for, or basis on which, the lower tribunal acted.

7. Furthermore, justice must not only be done but be seen to be done. There must be transparency in the process. In certain

circumstances, particularly in the administrative context, decisions can be taken without reasons necessarily having to be given. In

that regard I can think of one example; the Director of Public Prosecutions for good policy reasons does not in general give reasons

for his decisions. However, where you are talking about a court or a tribunal which is determining a lis inter-partes and a ruling on a

matter of substance as opposed to a matter of procedure is involved, it is, in my view, the duty of such a tribunal to give reasons for

its decisions.

8. I think all of that is well established. I don't think I decided anything new in approaching the case on the basis that that was the

established law. What we are concerned about in the Simo case primarily - certainly in terms of the question that I have been asked

to certify to the Supreme Court - is the way in which the Refugee Appeals Tribunal treated 'country of origin information'. I took the

view, and I don't think there was anything new or radical in this, that the Refugee Appeals Tribunal was obliged to consider all of the

'country of origin information' put before it. It is true to say, and I acknowledge that the tribunal member did state that he had

considered all of the documents submitted, but he went on to prefer a portion of the 'country of origin information' over other

'country of origin information' relied upon particularly by the Applicant, and he did not give a reason for doing so. This was not a

peripheral issue in the case. This was a central issue in the case. In my view, he was obliged to engage in a rational analysis of the

'country of origin information' and justify the preferment of one piece of evidence over another. Again, I do not believe there is

anything new or radical in that proposition.

9. Moreover, I think this court has to have regard to - and I certainly had regard to it in the decision that I arrived at in this case -

the fact that these were not proceedings of a wholly adversarial nature. The proceedings were largely of an inquisitorial nature,

though there were aspects to them of a broadly adversarial nature. Certainly when it comes to the consideration of 'country of origin

information', while this is evidence, it is not evidence of the sort that would normally be receivable in the ordinary courts, at least in

the form which it is received in cases before the Refugee Appeals Tribunal. The reasons for saying that are, as follows. First of all, it

is largely hearsay material. Secondly, it is very largely evidence in the nature of opinion evidence. The normal rules of evidence with

respect to opinion evidence are that opinion evidence can only be given by a properly credentialed expert who is giving an opinion as

to a matter which is within his field of expertise. Of course, experts are never called before the Refugee Appeals Tribunal, and the

source and provenance of the material is in general never challenged, or rarely challenged. The third thing to be said is that this

material is almost invariably - in fact, invariably in the cases that I have come across - not the subject of any kind of testing or

cross-examination. It is not in the nature of the material that it could be easily tested or cross-examined upon, because of course the

opinion giver is never available to the tribunal and there is no realistic basis on which the material can be tested in the crucible of the

cross-examination.

10. So, it's material in a category which, as I said, would not normally be receivable in either criminal or civil proceedings before a

court, but it is receivable in a tribunal of the type that is run by the Refugee Appeals Tribunal. Because of the differences that I have

alluded to it seems to me that exceptional care must be taken by the tribunal in considering 'country of origin information'. This is

particularly so in circumstances where material is easily downloaded these days from the internet, the source and provenance of

which might be dubious. On the other hand, it might be entirely authoritative. But there are no restrictions or inhibitions on any party

who wishes to put any matter in the nature of 'country of origin information' before the tribunal. The tribunal must consider all of the

material put before it. However, it is then entitled, having considered that material, to prefer certain material over certain other

material, but it must do so for good and substantial and reasonable and rational reasons. The sort of reasons that come to mind,

though this is by no means exhaustive, are that the tribunal might take the view that the source or provenance of a particular piece

'country of origin information' is dubious or less than authoritative.

11. It might also take the view that certain information is more up to date than other information. There might also be a view that

certain information produced, particularly by an agency who was perhaps pursuing a particular agenda, might not be entirely impartial.

As I say, there may be many other reasons. It is perfectly within the province and jurisdiction of the Refugee Appeals Tribunal, or any

other body considering information of that type, to prefer some information over other information. What is critical, however, is that

they give a reason for doing so. That doesn't mean that every piece of 'country of origin information' must be alluded to in the

judgment, but where there is a major conflict and where the status of one piece of 'country of origin information' versus another piece

of 'country of origin information' is an issue of very significant importance in the case, then the judgment should deal with that, and if

there is a preferment of one piece of evidence over another it should be justified so that the tribunal can be seen not to have acted

arbitrarily but to have acted reasonably, rationally and impartially.

12. I am supported in my view as to the way in which one should treat evidence of this sort by the views of Professor Guy Goodwin-

Gill in the Third Edition of his book on The Refugee in International Law. I wish to allude to the following passage at page 547 of the

work. In fact, I would first of all go to page 545 and just read in the following short passage from the beginning of paragraph 4.2,

under the heading "Uses and Abuses of Country and Other Information", he says:

"The hearing rarely provides enough information and although nowadays there are few limits to the sources that might be

consulted, extensive searches often raise rather than answer questions. Credible and trustworthy information is

nevertheless increasingly recognised as the essential foundation for good decisions. States and decision makers have long

maintained document collections of newspaper items, foreign broadcast reports, Governmental and non-Governmental

human rights assessments, analyses from embassies in countries of origin and so forth."

13. That is all true, of course. However, I just add to that, reiterate rather, the comment that I made earlier that in addition to that

there is a wealth of material from other sources available nowadays on the internet, and material from the internet is routinely

downloaded and proffered before the Refugee Appeals Tribunal and, as I say, there is no inhibition on that.

14. In assessing material of this sort what Professor Goodwin Gill says the approach should be, and it is an approach that I adopt and

endorse, set out at page 547 of the work, as follows:

"Documentary evidence, particularly electronically accessible country reports, has a seductive air, often seeming

sufficient to decide the case, but like any other material documentary evidence must still be assessed and put in context,

whether it relates personally to the claimant or to conditions in the country of origin. Information of the latter kind often

gives only a general impression, more or less detailed of what is going on. The refugee determination process itself has an

artificial quality of freezing time in a way which can lead to single events requiring greater significance than is their due.

Situations remain fluid. However, recognising that and drawing the right sorts of inference from evidence acknowledged as

credible and trustworthy are nevertheless the hallmarks of sound decisions."

15. So, it seems to me that that is a very apposite quotation. It identifies correctly, in my view, the infirmities of 'country of origin

information' and the need for caution in approaching 'country of origin information'. It also emphasises the need to take a holistic

view, which is what I referred to in my judgment in July, and that one has to have regard to the whole picture. Once one does that,

the tribunal is nevertheless entitled for good reason, if it sees fit to do so, to prefer one piece of evidence over another, but, as I

have said, it must justify it.

16. The process of assessment and acceptance or rejection of a particular piece of evidence must be transparent.

17. As I have said, I do not think that there is anything new or radical or profound in that. That is, commonsense and based upon

long and well established principles of the law of evidence and indeed of due process.

18. So, while the question posited does on one view of it canvass an issue of public importance, I do not think that there's anything

so new in this case as to place it in the category of something of exceptional public importance. For the reasons I have outlined, I am

declining to certify the point requested. I hope that the comments I have made will be of some assistance in clarifying the approach

that I believe ought to be adopted in the use of 'country of origin information'.

19. That is my decision.