High Court dismisses certiorari application against Refugee Appeals Tribunal for errors of fact regarding applicant's credibility.

Neutral Citation Number: [2009] IEHC 383

THE HIGH COURT

2007 800 JR

BETWEEN

S.A.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

JUDGMENT of Mr. Justice McCarthy delivered on the 28th day of July, 2009

1. On 31st March, 2009, my colleague, Clark J. afforded leave to the applicant to seek, inter alia, an order of certiorari quashing the

decision of the Refugee Appeals Tribunal recommending to the Minister the refusal of the applicant’s application for a declaration that

she was a refugee (being a decision of 30th April, 2007). Whilst additional grounds had been sought on the applicant’s initial

application for leave on notice to the respondents, Clark J. afforded liberty to seek such relief on the following grounds only:-

“The first named respondent placed reliance on the following two significant errors of fact in rejecting the applicant’s

credibility and in refusing the appeal.

(i) The first named respondent found a contradiction in the applicant’s evidence of the whereabouts of her passport

between what she stated in her questionnaire and her explanations at s. 11 interview and before the Tribunal. In

fact, there was no such contradiction.

(ii) The first named respondent found an unresolved discrepancy between the applicant’s evidence before the

Tribunal as to whether or not she returned home on the 14th March, 2006, and her statements at s. 11 interview.

In fact, there was no such unresolved discrepancy.”

2. In her judgment of 31st March, 2009, Clark J. comprehensively set out the background to the present proceedings and I do not

think that I need do so again here. I might, however, briefly say that the applicant arrived in the State on 17th May, 2006, thereupon

made an application for refugee status utilising that form commonly known as “ASY 1” being what one might term a brief initiating

document, that she subsequently completed a form of questionnaire (again of a standard form) on 24th May, 2006, and later she was

interviewed by an officer of the Refugee Applications Commissioner on 14th August, 2006. The Commissioner recommended a refusal

of a declaration that she be afforded refugee status by a decision ultimately dated 19th September, 2006. She appealed to the

Tribunal on 17th October, 2006. She had the benefit of an oral hearing before the Tribunal on 20th March, 2007. The appeal was

rejected on 13th April, 2007, notice of such decision being afforded to her under cover of letter of 4th May, 2007.

3. The applicant says that she has a well-founded fear of persecution in the event that she is returned to her home State (Belarus),

and by reason of her political opinion, the latter arising as a result of her membership and activity with a political party which is known

as the Belarusian Social Democratic Party (BSDP), or so she says and, in addition, by reason of her membership of a particular social

group, namely, that comprising persons associated with or perceived to be associated with the BSDP.

4. All parties are agreed that the rejection of the appeal by the Tribunal was based solely on negative credibility findings in respect of

the applicant. Counsel for the applicant has very clearly summarised the relevant errors, under the headings ‘The Passport Error’ and

‘The Returning Home Error’.

5. Of relevance to this case is the fact that in the Questionnaire at para. 20 and in response to a request to list any documentation

upon which she might rely when she said that:-

“I do not have them at the moment, but my parents will send them (to me) as soon as possible”.

In response to enquiries in that part of the questionnaire (at “Para 4” para 32(a) in which “Travel Details” were sought), she stated

that her Passport had been “stolen”.

6. Of further relevance is the fact that during the course of the applicant’s interview with Mr. Gerard A. Fitzpatrick on behalf of the

Refugee Applications Commissioner, she referred to a search of “our house” (which appears to mean her mother’s house). In that

regard, she is noted as saying that on the 14th March 2006:-

“They took books, documents, computer, scanner, printer and passport and documents.” (page 14)

7. In the course of her oral hearing, the Tribunal Member refers in his decision to her evidence pertaining to her Passport when he

says (at p. 2) that:-

“The applicant said she was issued with Passport, however, it was stolen, (question 32(a)). The applicant says that she

left her country of origin on 14th May, 2006 by truck and she did not know what countries she travelled through.”

Later, in the course of the hearing the applicant referred to the fact that the KGB had searched her house and in that context, the

applicant apparently told the Tribunal that:-

“As a consequence of the KGB searching her house, the removal of CDs, books and pamphlet (sic) and her passport

occurred and the only person to witness this was her mother.”

8. The Tribunal Member says that he asked her to comment on

“… the contradiction that had arisen between her evidence and her answer on her questionnaire at question 32(a) in

respect of her Passport. The applicant had said her Passport was stolen, however, in her evidence she said that it had

been taken by the KGB. The applicant’s reply to this was that her view was that once the KGB had taken it, in fact, that

it was stolen.”

9. In his analysis of the applicant’s evidence on the “Passport error”, the Tribunal Member stated that:-

“The applicant’s evidence with regard to her Passport and the differing answers she had given with regard to its

whereabouts was (sic) neither plausible nor credible. Having observed the applicant’s demeanour and heard her evidence,

I found her answer to the contradiction in her evidence to be neither plausible nor credible. Their position that they

thought she was of the opinion that her passport was stolen because it was taken by the KGB has an air of unreality to it

and I find that this undermines the applicant’s credibility.”

10. There was before the Tribunal an English translation of a letter written by the applicant’s mother (or at least purporting to be so)

referring, inter alia, to the fact of removal from her home of the applicant’s Passport, being a letter of complaint about an illegal

search of her home on 14th March, 2006, to the authorities and to the fact that this was “illegally removed” from the premises, and

he found this undermined the applicant’s credibility.

11. With respect to answers she had given with regard to when she returned home after 14th March, 2006, he held that they were

neither plausible nor credible:-

“The conflict in the applicant’s evidence as to whether she returned home, on 14th March, 2006 was not resolved and

there is clear conflict of (sic) the evidence as to whether she did or did not”.

12. I think that the first thing to be said, and it is of special significance where an error of fact is alleged as a basis for inviting

intervention by the court in virtue of the jurisdiction to judicially review administrative action, is that the court must not substitute its

own view of the facts or evidence for that of the inferior Tribunal and in particular an expert inferior Tribunal such as the Refugee

Appeals Tribunal. It is hardly necessary to quote authority for this rudimentary proposition but in the light of the applicant’s

contentions here, I quote from the decision of Kearns J. in Ryanair Limited v. Flynn, [2000] 3 I.R. 240 where he said that:

“It seems clear that the cases where the court can intervene by way of judicial review to correct errors of fact must be

extremely rare. The court can only intervene to quash the decision of an administrative body or Tribunal on grounds of

unreasonableness or irrationality if it exhibits the characteristics identified by Henchy J. in the State (Keegan) v. Stardust

Compensation Tribunal [1986] I.R. 642.”

and later:

“There is no body of jurisprudence in this jurisdiction which suggests that it would be desirable for the courts to interfere

where errors within jurisdiction are made”

and also:

“In relation to ‘mistake of fact’, while generally it is accepted that there is no jurisdiction to quash a decision because of

an alleged factual error, it is nonetheless the case that where factual errors occur such as to render the decision

irrational, then judicial review will lie”

13. I think that, similarly, in the present context, it is worthwhile restating the manner in which decisions of inferior Tribunals must be

approached, as elaborated by Peart J. in Tabbi v. Refugee Appeals Tribunal (Unreported, 27th July, 2007) where he said:

“It is not desirable that a decision be parsed and analysed word for word in order to discern some possible infelicity in the

choice of words and phrases used, and to hold that a finding of credibility adverse to the applicant is invalid unless the

matters relied upon have been clearly misunderstood or mistaken by the decision maker. The whole of the decision must

be read and considered in order to reach a view as to whether or not, when the decision is read in its entirety and

considered as a whole, there is a reasonable basis for the decision maker reaching that conclusion.”

14. And also to his statement of the law in the same context in Imafu v. Refugee Appeals Tribunal (Unreported, 9th December, 2005)

where he said:

“The court must have regard to the decision in the round, to the real capacity of the alleged error to have affected the

correctness of the process by which the decision was reached, and also to the discretionary nature of judicial review. In

respect of the latter, it seems to follow that even where the court may be satisfied that there was some error in the

process, it can refuse relief where it is also satisfied that such errors as did occur did not go to the heart of the decision,

such as would render the decision unlawful.”

15. Above all, as pointed out by Feeney J. in V.P. and S.P. v. Refugee Appeals Tribunal & Ors. (Unreported, 7th December, 2001),

opened to me in the present case, and by reference to Imafu aforesaid:

“This court must not fall into the trap identified by Peart J. of substituting its own view on credibility for that of the

Tribunal member.”

16. Against the background of those principles one turns to the decision of Finlay Geoghegan J. pertaining to conclusions by the

Refugee Appeals Tribunal involving errors of fact, heavily relied upon by the applicant, namely, A.M.T. v. Refugee Appeals Tribunal and

Minister for Justice, Equality and Law Reform [2004] 2 I.R. 607. There, it was inter alia alleged that the Tribunal:

“In error relied upon and took into consideration what she believed to have been evidence that the applicant travelled by

bus from Paris to Germany whereas, in fact, there was no such evidence before the Tribunal Member.”

17. This was in the context of the itinerary given by the applicant of his journey from Ivory Coast (from where he had fled) to Mali by

bus, from there to France and from France to Germany by bus (Hamburg), and from there to Ireland by plane. It appears that no

evidence was given by the applicant that he travelled by bus to France, from France to Germany, nor did any person make any

suggestion to that effect in the course of the hearing before the Tribunal member. This was a significant matter in terms of the

conclusion as to credibility as much as the Tribunal Member stated that:

“It seems extraordinary that if the final destination was Ireland, somebody would travel by bus from Paris to Germany and

then take a flight from Hamburg to Ireland.”

Finlay Geoghegan J., having condemned the decision as invalid because of the error, said, however, that:

“In reaching the above conclusion, I do not wish to suggest that every error made by a Tribunal Member as to the

evidence given will necessarily render the decision invalid. It will obviously depend on the materiality of the error to the

decision reached. The error must be such that a decision maker is in breach of the obligation to assess the story given by

the applicant or the obligation to consider the evidence given in accordance with the principles of constitutional justice.”

18. Finlay Geoghegan J. also addressed this matter in Carciu v. Minister for Justice, Equality and Law Reform and Anor. (Unreported,

4th July, 2003) (admittedly, a leave application). It appears that the main ground upon which leave was sought was that there were

two accepted misstatements of fact in the assessment of credibility by the Tribunal Member and these are described by Finlay

Geoghegan J. as being:

“… in relation to the material and significant inconsistencies which he perceived in the application and which he took the

view had not been explained in a satisfactory manner.”

19. Finlay Geoghegan J., in granting leave said that:

“It seems to me, that whether one puts it as a matter of fair procedures or a failure to taken into account relevant

material, or indeed as being an allegation that it is an unreasonable decision, that if a decision maker is assessing the

credibility of an applicant, and that decision is based on an incorrect, undisputed fact, that unless it can be established

that that incorrect fact is clearly so insignificant that it was not material to the decision maker, that there is a potential

breach of an obligation to observe fair procedures, or it may be asserted that the decision in unreasonable or irrational as

based upon erroneous fact.”

20. It appears to me, also, that reliance upon an error of fact, properly so called, would be a breach of constitutional justice but, of

course, where there is a dispute as to whether or not an error has been made, one must have regard to the principles elaborated

above (applicable to all judicial review of administrative action). One can only reach a conclusion that there is an error of fact if it is

plain that the conclusion or statement (“the error”) is irrational in the sense contemplated by the State (Keegan) v. Stardust

Compensation Tribunal, as referred to by Kearns J. and, of course, O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 which, indeed was

expressly relied upon by Finlay Geoghegan J. in A.M.T.

21. In determining whether or not an error arises I have regard to Doran v. The Minister for Finance, [2001] 2 I.R., as referred to in

the decision of Feeney J. in V.P and Another v. Refugee Appeals Tribunal and Another (Unreported, 7th December, 2007). In that

case, Feeney J. quoted from the judgment of Murphy J. where the latter said that:-

“If there was no evidential basis for the misunderstanding, then, in that sense, the Labour Court would have appeared to

have erred in law in reaching its decision.”

22. Applying the principles to which I have referred above, I am not satisfied that there is an error which could attract the court’s

intervention under the heading of the Passport error. It appears to me that there is evidence upon which one could rationally take the

view that contradiction arose, and thereafter, rationally reach the conclusion adverse on that point to the applicant, in terms of

credibility. Each case of this kind must be determined on its own facts. It appears quite clear that in AMT and Carciu both sides were

agreed about the error. That is not the case here. In a disputed case, I do not see how it is my role to place myself in the position of

the decision maker or treat this judicial review as an appeal. Here, it seems to me that there is evidence upon which one might

rationally take the view that there is a basis for the conclusion and hence no true (or relevant) error. When I speak of irrationality of

course I include irrationality arising because a conclusion has been reached without evidence.

23. It is not for me to decide whether or not the Tribunal was right or wrong in deciding that there was a contradiction in the

evidence before the Tribunal of the applicant and earlier statements by her, with the consequent adverse conclusion on that point, as

to credibility, once, there was evidence upon which it could rationally act.

24. No leave was given by reference to any alleged failure to consider, or properly consider, the document of complaint prepared by

the applicant’s mother. In any event, it does not undermine the conclusion of the Tribunal that the contradiction in question exists

and no passport error - no one doubts that a version of events consistent with the document was also given. Furthermore, I am of

the view that even without regard to the document (even if it ought properly to have been considered and given some weight) the

conclusion on credibility based on the contradiction is not undermined or, to put the matter in another way, remains rational.

25. With respect of the “returning home error” I reject any proposition to the effect that this is not a clear error. A submission has

been made to me on behalf of the respondents that this is not so. As I suggested in argument to Ms. Farrell, one could take view only

if one were “to parse and analyse” the decision or the documentary material which came into existence before it (i.e. the

questionnaire, the record of interview with the officer of the Commissioner, and the report prepared about the application on his

behalf) and not only must one look at the decision in the round but also one must have regard to all of the material on the same

basis.

26. The “returning home error” arises by virtue of the fact that the Tribunal confused the evidence about the return home of the

applicants. This arose in circumstances where the applicant’s home was searched on 14th March, 2006; the applicant’s evidence,

when interviewed on behalf of the Commissioner, was that she had not returned home after 31st March, 2006 (when she had been in

hospital with her husband until the 29th March, he being a patient until the 31st March, 2006); it was wrongly conceived by the

Tribunal that, when interviewed by or on behalf of the Commissioner, the applicant had said that she did not return home after the

incident on 14th March, 2006, whereas it was manifest in her statement that she did not return home, pertained to the period after

31st March, 2006: whereas it was manifest that what she had said was that she did not return home; it was the latter that was said

by her in the Tribunal and thus there was no conflict. Obviously, one concludes that such error was made by the Tribunal on the basis

that the conclusion of fact as to the existence of a contradiction was irrational, having regard to the unambiguous state of the

evidence.

27. One is accordingly left with only one error of fact which might have a bearing on whether or not the decision is lawful and

intervention by the court contemplated.

28. I turn now to the issue of whether or not the error which I have identified had a real capacity to have affected the correctness

of the process by which the decision was reached or, to put it another way, whether or not it was a material or significant error, or,

again, whether or not, of its nature, the decision may stand, notwithstanding the fact that it was made (i.e. whether or not it is

severable). It seems to me that severability would follow if one took the view that it had no capacity to, and it did not affect, the

correctness of the decision or it was of no materiality or significance. I will refer first to the principle of law pertaining to severability.

An example of the manner and circumstances in which severability might occur, appears from the decision of Herbert J. in Kikumbi v

Refugee Applications Commissioner, [2007] IEHC 11. There, the applicant sought to establish refugee status, having come from the

Ivory Coast. In that case, Herbert J. said as follows:-

“… the fact that the authorised officer partly misinterpreted the country of origin information available … does not

invalidate her conclusion that it was questionable that the second named applicant and her family moved to (a place

called) Fataki from (another called) Bunia, because that conclusion was also based upon … another … entirely separate

and severable consideration, which was not demonstrated to be also incorrect. In those circumstances I find that the

mistake of fact on the part of the authorised officer was not material to or of significant importance to her a conclusion

so to invalidate that conclusion”.

I think it is appropriate that I set out the conclusions of the Tribunal on the issue of credibility.

(1) With regard to the issue of the Applicant's actual political involvement the Applicant's evidence was vague, non-

specific and tended to deal with generalities not the specifics that one would expect from a person who might be actively

involved in politics. Fundamental matters such as whether or not her Party had boycotted the elections in 2004 the

Applicant was unaware of the true position as set out in the Country of Origin Information. It is only reasonable to assume

that a person who alleges they are active in politics would know whether or not their Party boycotted the elections. Her

Party did not boycott the elections. I find that the Applicant's evidence runs counter to the Country of Origin Information

and I find that this undermines the Applicant's credibility.

(2) With regard to the Applicant's evidence as to how she travelled to and arrived in the country, the Applicant's

evidence had an air of unreality to it in that she travelled by truck through countries she did not know. This evidence was

neither plausible nor credible and I find that it undermines the Applicant's credibility.

(3) The Applicant's evidence with regard to her passport and the differing answers she had given with regard to its

whereabouts was neither plausible nor credible. Having observed the Applicant s demeanour and heard her evidence I

found her answer to the contradiction in her evidence to be neither plausible nor credible. Their position that she thought

she was of the opinion that her passport was stolen because it was taken by the KGB has an air of unreality to it and I

find that this undermines the Applicant’s credibility.

(4) The Applicant's contention that she would only speak Russian at the hearing of this Application to avoid being

detected by a KGB agent has an air of unreality to it. It is reasonable to assume that KGB agents are proficient in Russian.

The Applicant's contention is her first language is Belarusian, however she also speaks Russian. Further I found this

contention had an air of unreality in circumstances where the Applicant was simply by her own evidence attending

demonstrations. The Applicant evidence I find to be neither plausible nor credible for the above reasons and I find that it

undermines the Applicant's credibility.

(5) The Applicant's contention that the word boycott could mean a falsified election was put before the Tribunal and

having heard this segment of the evidence and observed the demeanour of the Applicant I formed the view that there

was an attempt to stretch credibility by giving words meanings which clearly they did not have. I found that this

undermined the Applicant’s credibility.

(6) The conflict in the Applicant's evidence as to whether she returned home on the 14th of March 2006 was not resolved

and there is a clear conflict of the evidence as to whether she did or did not go home. The Applicant made no attempt to

resolve this issue and I find that that undermines the Applicant's credibility.

(7) Regard is had to Section 11B of the Refugee Act, 1996 as amended in reaching this conclusion.

29. It is plain that in respect of each conclusion, the Tribunal gave cogent reasons and that the conclusion on each issue was

reached separately and thus, none of those conclusions can, as a matter of principle, be tainted by the error. The first of them seems

to be of most significance since in the so called ASY 1 form, in translation, it is said by the Tribunal that she stated:-

“She has problems in Belarus because she is a member of the Belarusian Social Democratic Party. The applicant states

that she and her husband and other members of this party were beaten by militia on election day 19/03/2006”.

Further, in her questionnaire (when asked why she had left her country of origin) she said:-

“I have my own political views and opinions. I oppose our authorities. I am a member of the Belarusian Social Democratic

Party (the BSDP). Belarus is a dictatorship country. The authorities have been regularly persecuting and harassing me and

my husband since 2004. My husband had to leave his job. They intimidate and beat us. They have instituted against us,

criminal proceedings in accordance with Articles 367 and 368 which provide for imprisonment (of) up to four years. We are

prosecuted in accordance with the law in our country. I am afraid of everything. I do not sleep. We are a young family.

We want to live, but we are in danger in our country.”

(Question 21)

The Tribunal also stated (in answer to a question as what she feared might happen if she returned to her country of origin) that she

said:-

“We cannot go back to our country because criminal proceedings have been instituted against us, in accordance with

Articles 367 and 368. A law on discrediting the republic of Belarus was passed in Belarus before the elections held on

19.03.2006 i.e. in accordance with this law. We can be put in jail for up to five years because we have applied for

political asylum”.

She said before the Tribunal (and I will not set out her evidence in extenso), and by way of repetition, that her reason for leaving her

country of origin were her political views and opinions in opposition to the Government, membership of the Belarusian Social

Democratic Party (BSDP) and, that she could not return to her country of origin because of persecution and harassment by reason of

the former (including, apparently, the fact that she was charged with certain offences which might involve a prison sentence): she

gave evidence in some detail about the extent of the persecution and harassment and no complaint is made here about the

conclusion reached.

30. With respect to the second conclusion, pertaining to her travel and arrival in this country, the Tribunal further concluded that the

evidence given by her was neither plausible nor credible and, also, undermined her credibility.

31. I have already dealt with the “Passport error” which is the third.

32. With respect to the fourth, the applicant, was said to have insisted on speaking Russian because of her fear of the KGB – her

contention in this regard being described as having “an air of unreality” and neither plausible nor credible, and which was further held

to undermine such credibility.

33. With respect to the fifth, the applicant apparently contended that the word “boycott” used by her on a number of occasions

could be a “falsified election”: the Tribunal decided that this was an attempt to stretch credibility by giving words meanings which

clearly they did not have, thereby further undermining her credibility.

34. As to the sixth (“the returning home error”) my conclusion is as aforesaid.

35. The last refers to s. 11(D) of the Refugee Act 1996, pertaining to her failure to seek asylum before arriving in Ireland (to put the

matter shortly) but this does not appear to have been a significant factor in the decision.

36. Whether or not a given error has a “real capacity” to “affect the correctness of the process” is a question of judgment on the

facts of each case. Obviously the questions of materiality or significance similarly fall therein and, by definition, that of severability. It

appears to me that in the present case the error did not have the capacity, when the decision is taken in the round, in any real

sense, to affect the decision making process. This is especially so because the error could only be said to arise on a peripheral

matter. The decisive aspects must be those relating to the political involvement of the applicant, her alleged fear of the KGB and the

segment of the evidence concerning “boycott” and falsified election”. One does not engage in the mechanical process of counting the

number of legitimate adverse conclusions and setting that number against that which is based on error.

37. A helpful decision in this connection is Bisongi v. The Minister for Justice, Equality and Law Reform and Another, (Unreported,

O’Leary J., 25th April, 2005). There the Tribunal was held to have “relied in part on country of origin information not available to the

applicant and/or on a misinterpretation of the produced documents…”, was said to be “prima facie” unreasonable in relying on an

alleged contradiction… and was “unreasonable in not accepting (a certain) explanation…(as rational)”. O’Leary J. said that:-

“This court is satisfied that each of these three matters would constitute grounds for judicial review of the decision as

they constitute the consideration by the deciding body of conclusion unsupported by legally acceptable evidence. In the

view of the court, however, each would not, on its own, constitute the substantial ground needed to meet the

requirement of the Act at this stage. The issue for the Court is whether taken together these constitute substantial

grounds.”

and he went on to say:-

“Each of the three matters played a part (probably a minor part) in the assessment of the applicant’s credibility. The

crucial and in the view of the court the deciding matter is that each of these three errors relate to a single issue i.e.

credibility of the applicant rather than, for example, some relating to credibility and some to some other issue such as the

assessment of the internal conditions in the country of origin. If the errors each related to separate areas of assessment

they would not necessarily have a cumulative effect. However, in this case, each of the errors was part of the one

process i.e. assessment of credibility. In the judgement of the court, when taken together, they could have cumulative

effect on the assessment of credibility…”

I am mindful in this case of the latter proposition, namely that the erroneous conclusion relates to credibility. However, it seems to me

that cannot be decisive in this case, on the facts.

38. With respect to Keagnene v. The Minister for Justice and Others, (Unreported, High Court, Herbert J., 31st January, 2007), an

allegation was made that the Tribunal had made a finding of fact where there was no basis in evidence for it: in particular a relevant

issue at the hearing before the Tribunal was the whereabouts, or the treatment by the authorities, of the applicant’s uncle described

as Mr. B., the applicant having fled from the Ivory Coast. (The precise details need not be set out here.) Herbert J. said that:-

“But for the strong terms employed by the member of the Refugee Appeals Tribunal in stating (his reasons) I would be

inclined to attach little weight to this criticism of the decision making process (i.e. on that topic). The primary onus of

establishing his claim lies on the applicant and I believe that it would have been properly open to the member of the

Refugee Appeals Tribunal to have expressed surprise that the applicant had not given evidence of making enquiries as to

the whereabouts of his uncle … particularly having regard to the evidence before the Tribunal that Mr. B. was a person of

a very considerable public and political stature … However, the fact still remains that the member of the Refugee Appeals

Tribunal assumed, without evidence, that the applicant had not made such an inquiry or inquiries. On a stand alone basis,

I find this ground of complaint to be excessively technical and in the circumstances I do not find it sufficiently compelling

in itself to persuade the court to exercise its discretion in favour of the applicant.”

As will be seen from the judgment and, I trust, from the extract to which I have referred the Tribunal’s error in that case might be

classed not merely as an error of fact but rather the fact that consideration was given to a supposed fact of which there was no

evidence. Obviously if the latter was the case what the member in truth did was to unlawfully consider an irrelevant matter. Be that

as it may it seems to me that one may properly draw the conclusion from what Herbert J. said that notwithstanding the fact that the

terms used by the Tribunal were “very strong”, one would, in a proper case, be at liberty (not merely at liberty, of course, but

obliged) to disregard an error.

39. A further dispute arose as to the import of the Tribunal’s decision as to the acceptance (or not) by the member of the proposition

that Mr. B. was the applicant’s uncle and it appears that there was an internal contradiction in the decision in that regard. In any

event, I proceed on the basis that such internal contradiction in the decision was in the category of error sought to be raised in

those proceedings as the ground for the courts intervention.

40. It also appears from the report that a document pertaining to Mr. B. (referring, apparently, to the fact that he had been “cleared”

of certain charges – something which had a bearing on whether or not the applicant could return to Ivory Coast) had never been put

to the applicant in the course of the hearing or produced before the conclusion of the evidence. Whilst the document was in French,

it appears that a translation was to be furnished to the applicant within seven days, but the hearing was nonetheless concluded and

a decision ultimately made referring to the document. Herbert J. found that there had been an unfairness of proceeding in relation to

the user of that document because of the fact that the applicant and his legal advisors had not had the opportunity to make written

submissions in relation thereto or because the hearing was not adjourned. It appears from the decision, however, that the Tribunal

member wrongly understood that such document had, in fact, been put to the applicant at the hearing. In any event, in a related

aspect, the Tribunal had apparently made an adverse finding as to credibility because objection was taken to production of the

document.

41. It was also held that the member had misunderstood or misconstrued the evidence of the applicant as to how he obtained entry

into the State and as to fact in holding that the applicant claimed to have travelled here without a passport or travel documentation

and to have been permitted to enter the State without being asked for a passport.

42. In resisting the application, it was contended on behalf of the respondent that none of the negative findings against the applicant

(by which presumably, were meant to be the successfully impugned findings):-

“Were material to the key elements in the account of the events related by the applicant upon which his claimed

subjective fear of persecution was based.”

43. On the basis of the foregoing errors, the applicant succeeded. It seems to me, however, that this decision is merely one of a

number which do not establish any principle but are applications of a principle to given evidence or facts. Indeed, it is noteworthy

that Herbert J. indicated a willingness to disregard one of the alleged errors. I do not think, accordingly that this decision advances

the position as a matter of principle. I should say that it is of course the case that it will frequently be impossible, when a case is

decided on credibility and one or more of the findings are successively impugned, to know the weight given to the respective findings

(as was the case there) but this is not such a case. I do not think that it is the law that this must mean, ipso facto, that one must

regard every error of this kind as material or significant, or irrational and incapable of severance. I think that one is entitled at least

consider whether or not, as a matter of reason, a greater weight must have been attached to one factor rather than another, and, of

course ultimately to look at the decision in the round.

44. I therefore refuse the relief sought.