Court of Appeal allows appeal quashing asylum decision for failure to consider country of origin info on credibility.

THE COURT OF APPEAL

Neural Citation Number: [2017] IECA 297

No. 2016 288

Finlay Geoghegan J.

Irvine J.

Hogan J.

BETWEEN/

R.A.

APPLICANT/

APPELLANT

AND

REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE AND

EQUALITY, ATTORNEY GENERAL AND IRELAND

RESPONDENTS/

RESPONDENTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 15th day of November 2017

1. This is an appeal taken by the applicant from a decision of the High Court (Humphreys J.) delivered on 4th November 2015 which

rejected the applicant’s application for judicial review of a decision of the Refugee Appeal Tribunal dated 25th November 2011: see RA

v. Refugee Appeals Tribunal (No.1) [2015] IEHC 686. In a subsequent judgment delivered on 21st December 2015, Humphreys J.

granted the applicant the requisite certificate for leave to appeal to this Court pursuant to s. 5(6)(a) of the Illegal Immigrants

(Trafficking) Act 2000 (as substituted by s. 34 of the Employment Permit (Amendment) Act 2014): see RA v. Refugee Appeals Tribunal

(No.2) [2015] IEHC 830.

2. The certified point of law was in the following terms:

“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.”

3. Before considering any of these legal issues, it is first necessary to examine the factual background to these proceedings.

4. On the 12th May 2011 the applicant, Mr. A., arrived in Ireland and immediately claimed asylum. His case was that he had previously

been the leader of the youth section in his own local area of the Ivorian Popular Front in the Ivory Coast (“Front Populaire Ivoirien”)

(“FPI”) and that he had been forced to flee the country in May 2011 after the outbreak of extensive civil conflict.

5. The first and second rounds of the Ivoirian Presidential election were held in October and November 2010. According to the country

of origin (“COI”) information supplied by the UNHCR and exhibited by the applicant (Ref World, “Gbagbo Supporters Tortured, Killed in

Abidijan” dated 2nd June 2011), the outcome of these elections was disputed. Eventually, the previous incumbent, President Laurent

Gbagbo (the leader of the FPI), was ousted from power and replaced by President Alassane Ouattara in April 2011. Following the

arrest of Gbagbo and his indictment before the International Criminal Court, the FPI announced a boycott of the parliamentary

elections which were scheduled for the following November.

6. According to the COI reports, Gbagbo supporters had been targeted by Ouattra supporters after the latter had come to power.

Killings (including many summary executions), torture and the torching of buildings were all reported by human rights observers in the

weeks that followed President Gbagbo’s arrest on 11th April 2011. This is also borne out by the COI information utilised by ORAC in

considering the present application. Thus, for example, a report in The Daily Telegraph of 19 April 2011 (“Ivory Coast: Laurent Gbagbo

general betrayed by lover”) reported that “pro-Gbagbo fighters are said to fear that they will be tortured or murdered if they

surrender.” An Amnesty International Report dated May 2011 provided a contemporary account of wanton killings by both forces, the

indiscriminate use of live ammunition and mortar shelling to suppress street protests, extra-judicial killings and summary executions.

7. Mr. A.’s case is that on that day (i.e., 11th April 2011) he went to work on that morning in Abobo (a northern suburb of the

capital, Abidjan), but he was informed by his neighbours that his house had been burnt down. He then said that he was first arrested

as an FPI supporter, but that he was later released as Ouattra supporters feared that army units loyal to Gbabgo might return. Mr. A.

then says he went into hiding, staying at the house of an uncle. His uncle then paid for him to take a flight out from Abidjan and that

Mr. A. arrived here on 12th May 2011, having travelled first by plane to Germany.

8. Mr. A.’s case was first considered by the Office of the Refugee Appeals Commissioner (“ORAC”). While in a decision dated 1st July

2011 the ORAC found as a fact that Mr. A. was from Abobo, it also found against the applicant’s principal claims due to credibility

issues. The ORAC found that he could not, for example, name prominent members of the FPI nor any of the militias that were active

during this period. He likewise gave accounts of the fighting during the conflict which were inconsistent with established COI reports.

When asked, for example, what had happened at a particular marketplace in Abobo on 17th March 2011, he maintained that traders

had been slaughtered by Ouattra supporters, whereas the COI information available to the ORAC (from the Amnesty Report) was to

the effect that the killings had been caused by shelling of the area by army units loyal to President Gbagbo. These and other

inconsistencies in his narrative accordingly led the ORAC in a very careful ruling to make adverse credibility findings against Mr. A.

The decision of the Refugee Appeal Tribunal

9. In its decision of 25th November 2011 the Tribunal concluded that the applicant’s account contained such inconsistencies that his

general credibility was undermined. Some examples can now be given.

10. First, the applicant had been asked in the course of his s. 11 interview to name the “leader of the FPI in your area” to which he

had replied: “Kuadio Fibel, he was the president of FPI in my area.” By contrast at the hearing before the Tribunal the applicant had

given the name “Bamba Youssouff” as the leader of the FPI in Abobo. When this inconsistency was put to the applicant, he said that

at the s. 11 interview he had been asked to identify the name of the local secretary and that is why he gave Mr. Fibel’s name.

11. Second, he had been asked at the s. 11 interview to identify the name of his local member of Parliament, to which he had replied:

“He was an ex-soldier, General Bruno: he was also my uncle.” Before the Tribunal Mr. A. said that Mr. Youssouff was the local

member.

12. Third, he was asked to identify the names of the security forces and the youth militias loyal to President Gbagbo. Apart from the

generic title of “Gendarmerie” and the name of “Con Commando”, he could not identify the particular names of any of these units by

reference to the COI information. (I would observe, however, that the Amnesty Report does refer to the activities of an anti-Gbagbo

militia known as the “Invisible Commando” and it also stated that these organisations had a myriad of names.)

13. Finally, in his original application Mr. A. had stated that he believed that his wife and children had fled to Ghana, yet in evidence

before the Tribunal he stated that he did not know where they were. When this inconsistency was put to him, he said that the

interpreter had possibly made a mistake. He also explained that he had been told by some Church members that others had fled to

neighbouring countries such as Ghana or Togo. He maintained that he had never said that he had actually located them in Ghana.

14. The Tribunal next noted that some of the documents submitted by the applicant contained a number of errors. His electoral card

(“Carte d’Électeur”) misspells his first name by omitting the word “h”. There is a further error in that the entry for date of birth reads

as follows: “Date de naissance: 20 Mais 1978”, so that the French word for “May” is misspelt.

15. The Tribunal member concluded:

“Whilst I have had full regard to the documentation submitted by the applicant purporting to confirm the applicant’s

activities with the FPI party and the difficulties he claims to have experienced arising from same, in light of the issues

arising in the applicant’s own evidence, I cannot accept that these documents represent a truthful account of

circumstances.

I have considered all of the documentation, medical evidence, photographs, country of origin information, grounds of

appeal, submissions and case law relied on in support of this applicant’s claim. This information does not assist the

applicant in circumstances where his credibility is found wanting to such a degree that the very basis of his claim is not

believed. I do not believe the applicant. I found him to be vague and evasive in his manner of answering questions raised

by the Tribunal and I cannot accept that his manner of answering such questions was anything other than a deliberate

attempt by him to confuse the evidence.”

16. The Tribunal accordingly found against the applicant.

The decision of the High Court

17. The applicant then sought judicial review of a decision of the Refugee Appeal Tribunal, which application was rejected by

Humphreys J. in a detailed reserved judgment. A key part of that judgment addressed the issue of the extent to which the decision-

maker was obliged to consider COI information.

18. In this regard the applicant placed particular reliance on the terms of Article 5(1) of the European Communities (Eligibility for

Protection) Regulations 2006 (S.I. No. 518 of 2006)(“the 2006 Regulations”) which provides:

“The following matters shall be taken into account by a protection decision-maker for the purposes of making a protection

decision:

(a) all relevant facts as they relate to country of origin at the time of taking a decision on the application for

protection, including laws and regulations of the country of origin and the manner in which they are applied;

(b) the relevant statements and documentation presented by the protection applicant, including information on

whether he or she has been or may be subject to persecution or serious harm….” (emphasis supplied)

19. A key submission in the High Court was that Article 5(1) of the 2006 Regulations (and particularly the highlighted words) had

altered pre-existing law and had obliged the Tribunal to consider the COI in all cases. Prior to the commencement of the 2006

Regulations in October 2006, the leading authority on the extent of the obligation to consider COI material had probably been the

judgment of Peart J. in Imafu v. Minister for Justice, Equality and Law Reform [2005] IEHC 416.

20. In that case the applicant, a Nigerian national, had claimed that she had been trafficked to Italy for the purposes of prostitution

and that she faced persecution if she were to be returned to Nigeria. Peart J. observed that there was no need to have resort to COI

which stated the obvious, “namely, that women are trafficked from Nigeria to Italy and that on their return to Nigeria they may

become the object of attention by the authorities in relation to a possible offence.” As Peart J. stated in that judgment, the position

was otherwise where the matter is an unusual one “which would have to be checked out before one could assert with any reliability

that the applicant was not being truthful.”

21. As it happens, the specific argument advanced in the present case regarding the effect of the 2006 Regulations had been

expressly rejected by Clark J. in VO v. Minister for Justice, Equality and Law Reform [2009] IEHC 21. She noted that prior to 2006:

“…the best practice in the assessment of the credibility of asylum claims was to consult country of origin information to

establish whether the applicant’s story, as outline, could be true in the context of the situation prevailing in his country of

origin, this was not a hard or invariable rule. There are always circumstances where a decision on credibility can be

arrived at without consulting country information.”

22. She added that on the particular facts of that case any consultation of COI would have been of little value, as it could not “assist

in making the applicant’s story of persecution more credible to the Commissioner.” Subject to one possible exception which I will next

consider, this general approach has been consistently followed by the High Court in the multitude of asylum credibility cases which

have followed in the years that followed.

23. There are, of course, many cases where the necessity to consult the COI is manifest. An example here is the decision of Eagar J.

in MMS (Sri Lanka) v. Minister for Justice and Equality [2015] IEHC 659. In that case, the Tribunal member rejected the applicant’s

claim that he had been persecuted on grounds of his Tamil ethnicity on credibility grounds. The applicant had claimed to this end that

he been held incommunicado at a particular prison, but that his brother in law had arranged for him to escape. The Tribunal member

rejected this claim on credibility grounds but he had made no reference to the COI which had documented 35 instances of detainees

escaping from that prison by paying a bribe to the prison guards. Eagar J. did, however, say that in view of the 2006 Regulations “the

qualification suggested by Peart J. [in Imafu] can no longer be relied on”, albeit without reference to the post-2006 Regulations case

law such as VO. It was this latter holding which troubled Humphreys J. in the present case.

24. On this point the judge said:

“The applicant’s argument essentially is that the approach I have been discussing only held good up to 2006. The

adoption of the European Communities (Eligibility for Protection) Regulations 2006, the applicant says, fundamentally

changed that situation, because regulation 5(1) of the Regulations requires the tribunal member to have regard to all

documentation submitted to it. It is suggested that the obligation to consider all documentation now supersedes the

previous approach and requires the tribunal member to analyse country of origin information in a narrative form,

addressing the extent of which it supports the applicant, in every case, even where the tribunal member is otherwise

inclined to reject the credibility of the applicant.”

25. Humphreys J. then continued:

“There are a number of reasons why this submission is unsustainable. As a matter of first principles, as I have said, it is

irrational and pointless to require a decision maker to consider something in a narrative form if such consideration does not

affect the ultimate decision. Secondly the 2006 Regulations only require “relevant” documentation to be considered, and

documents which become irrelevant because of the applicant’s overall lack of credibility are not relevant in this sense. A

third fundamental logical difficulty with this approach is that the tribunal member’s obligation to consider the

documentation is not something that was created out of whole cloth in 2006. That obligation was in any event a basic

obligation under the Refugee Act 1996, so in this respect, as Clark J. put it in V.O., “nothing has changed in relation to

the method of assessment of credibility of refugee applicants” (at para. 23).

26. The judge continued further by saying:

“Section 16 of the Refugee Act 1996 (as amended by the Immigration Act 1999) has identified a number of matters that

the tribunal must consider, including the report of the Commissioner, “the evidence adduced and any representations

made at an oral hearing, if any” and include any documents, representations in writing or other information furnished to

the Commissioner pursuant to section 11”. Pursuant to s. 16(5) the Commissioner is obliged to furnish the tribunal with

copies of any such reports, documents or representations in writing submitted under s.11 and an indication in writing of

the nature and source of “any other information relating to the application which has come to the notice of the

Commissioner in the course of an investigation by him or her”. Clearly this provision has no purpose if the tribunal is not

obliged to consider information so furnished.

In short the Tribunal has always been under an obligation to consider relevant documentation, and at the level of

principle, in this respect, regulation 5(1) of the 2006 Regulations does not alter that, or usher in any kind of new regime.”

27. Humphreys J. then went on to discuss the (then recent) judgment of Eagar J. in MMS on which the applicant had relied:

“It seems to me abundantly clear that Eagar J. was only in a position to arrive at the conclusion that the Imafu decision

was not applicable because a great deal of the previous case law had not been opened to him, particularly the analysis of

Clark J. in V.O. ….I feel confident in saying that Eagar J. could not have arrived at the conclusion he came to in M.M.S. if

he had had opened to him the full range of authorities which I have had the benefit of in the present case.”

28. In such circumstances Humphreys J. felt that he was not obliged to follow MMS in view of the established principles enunciated by

Parke J. in Irish Trust Bank Ltd. v. Central Bank of Ireland [1976-1977] I.L.R.M. 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

29. Humphreys J. then went on to consider whether there was an obligation on the Tribunal to assess the COI in a narrative fashion.

He concluded that in view of the Tribunal’s rejection of the applicant’s credibility, there was no such obligation, at least so far as the

present case was concerned:

“However, given the rejection of the applicant’s credibility there was no obligation to consider the country of origin

information further. It was a matter for the Tribunal as to how to consider the country of origin information, and the

Tribunal did not “dismiss” or “reject” that information in the sense I have described namely, by making a finding

inconsistent with it. The Tribunal states that it has considered the country of origin information, and in the absence of

evidence to the contrary the applicant has not discharged the burden of showing that it has not. Its decision is

consistent with the perfectly legitimate approach of considering that there may have been unrest in 2011 but the

applicant’s version of his role in it is not to be accepted.”

30. Humphreys J. then proceeded to uphold the conclusion of the Tribunal and he rejected the applicant’s claim. It is clear,

nevertheless, from the certified point of law that this appeal now raises more generally the question of the extent to which the

decision maker is obliged to have regard to COI. It is to that issue to which I now propose to turn.

The extent to which the decision maker is obliged to have regard to country of origin information

31. It is clear that the obligation on the part of the decision maker contained in Article 5(1) of the 2006 Regulations is to consider

only the relevant COI. There is no need for the decision maker to consult such COI in a ritualised or mechanistic fashion in every

single case, regardless of the personal circumstances of the applicant or the nature of the claim made by the applicant.

32. In that respect, therefore, I consider that the 2006 Regulations largely reflect pre-existing law and practice as explained by Peart

J. in Imafu and in countless other cases of a similar nature. I further agree with what Clark J. said in VO (and, indeed, what many

other judges have said in a host of subsequent decisions) to the effect that Article 5 of the 2006 Regulations did not alter that

practice or that it required that COI be consulted in all cases, regardless of the circumstances. Thus, for example, in Imafu Peart J.

accepted as a given that Nigerian women were being trafficked for prostitution to Italy, so that it was not necessary in that instance

for the Tribunal member to refer to COI to buttress her knowledge of largely undisputed facts. To that extent, therefore, I consider

that the dictum of Eagar J. to the contrary in MMS is, with respect, out of line with the authorities and cannot be supported. It

follows in turn that in the present case Humphreys J. was entitled not to follow that authority having regard to the Irish Trust Bank

principles.

33. Although the assessment of credibility is, perhaps, often the most important task facing the decision maker in claims for

international protection, it is also undeniably one of the most difficult. This is why beyond endorsing the general approach articulated

by Peart J. in Imafu and by Clark J. in VO, the articulation of prescriptive, a priori rules regarding the assessment of COI represents a

difficult task, as much will naturally depend on the circumstances of any given case.

34. These difficulties were eloquently expressed by Cooke J. in IR v. Minister for Justice [2009] IEHC 353, [2015] 4 I.R. 144, 148:“In

most forms of adversarial dispute the assessment of the credibility of oral testimony is one of the most difficult challenges faced by

the decision-maker. The difficulty is particularly acute in asylum cases because, almost by definition, a genuine refugee will be

someone who has fled home in circumstances of stress, urgency and even terror and will have arrived in a place which is wholly

strange to them; whose language they do not speak and whose culture may be incomprehensible. Inevitably, many will have fled

without belongings or documentation from areas in a state of anarchy or from the regimes responsible for their persecution so that

obtaining any administrative evidence of their status and even identity may be impractical, if not impossible. In such cases the

decision-makers at first instance have the unenviable task of deciding if an applicant can be believed by recourse to little more than

an appraisal of the account given, the way in which it was given and the reaction of the applicant to sceptical questions, to the

highlighting of possible discrepancies or to contradictory evidence from other sources. Recourse will also be had in appropriate cases

to what is called “country of origin information”, but in most cases this will be of use only in ascertaining whether the social, political

and other conditions in the country of origin are such that the events recounted or the mistreatment claimed to have been suffered,

may or may not have taken place.”

35. This was precisely the type of problem which the confronted the Tribunal in the present case. The applicant claimed to have fled

the Ivory Coast in fear of his life at a time of what amounted to civil war. There is no doubt at all but that he would have been

entitled to international protection if that story was true or perhaps even substantially true. As the details of these events and the

fighting between the two factions are not necessarily well known, the first thing, therefore, which the Tribunal had to consider was

whether the applicant’s account might be true by reference to the available COI: see, e.g., the comments to this effect of Kelly J. in

Camara v. Refugee Appeals Tribunal, High Court, 26th July 2000 and those of Finlay Geoghegan J. in AMT v. Refugee Appeals Tribunal

[2004] IEHC 606, [2004] 2 I.R. 607. In Camara Kelly J. said:

“… it is clear that an applicant's credibility is always a relevant issue which falls to be assessed by the examiner.

Goodwin- Gill, The Refugee and International Law (Clarendon Paperbacks, Oxford) at page 349, puts the matter this way:

'Simply considered, there are just two issues. First, could the applicant's story have happened, or could his/her

apprehension come to pass, on their own terms, given what we know from available country of origin information?

Secondly, is the applicant personally believable? If the story is consistent with what is known about the country of origin,

then the basis for the right inferences has been laid. Inconsistencies must be assessed as material or immaterial. Material

inconsistencies go to the heart of the claim, and concern, for example, the key experiences that are the cause of flight

and fear. Being crucial to acceptance of the story, applicants ought in principle to be invited to explain contradictions and

clarify confusions.' These quotations appear to me to accurately represent the questions which must be addressed by an

examiner and the approach which ought to be adopted by the examiner and the Authority."

36. In AMT Finlay Geoghegan J. approved these principles. She quoted from the decision of Judge Pearl in Milan Horvath v Secretary

of State for the Home Department (United Nations High Commissioner for Refugees Intervening) [1999] I.N.L.R. 7, 17 where he had

stated:

“(21) . . . It is our view that credibility findings can only really be made on the basis of a complete understanding of the

entire picture. It is our view that one cannot assess a claim without placing that claim into the context of the background

information of the country of origin. In other words, the probative value of the evidence must be evaluated in the light of

what is known about the conditions in the claimant's country of origin.”

37. Finlay Geoghegan J. then went to add ([2004] 2 I.R. 607, 617):

“In accordance with the above principles, I have concluded that the Tribunal Member in this case was obliged to assess

the applicant's story that, as an illiterate person, he was employed as a driver to Secretaries of top government officials

in the context of what is known of the conditions in the Ivory Coast. Further, that by reason of the central importance

this part of the story to the assessment of the credibility of the applicant her failure to do so renders the decision

invalid.”

38. The starting point, therefore, was to examine whether the applicant was an Ivorian national and whether he had come from the

Ivory Coast at the time in question. In its ruling the ORAC had concluded – based on an examination of his knowledge of the local

geography of the region – that Mr. A. had indeed come from Abobo and there is no doubt at all but that his arrival in Ireland on 12th

May 2011 coincided with intense civil conflict in the Ivory Coast.

39. This is borne out by the COI information which was available to the RAT. Thus, for example, the Ref World article for 2nd June

2011 to which I have already made reference stated:

“Armed forces loyal to President Alassne Ouattara have killed at least 149 real or perceived supporters of the former

President Laurent Gbago since taking control of the commercial capital in mid-April 2011, Human Rights Watch said today.

Pro-Gbago militiamen killed at least 220 men in the days immediately preceding and following Gbago’s arrest on April 11th,

when the nearly four month conflict came to a close.”

40. The Tribunal did not, however, refer to the COI at all in considering whether the applicant’s account might be true. The

applicant’s claim, after all, was that he had discovered that his own house had been burnt down by Ouattra militiamen on 11th April

2011 and that he had gone into hiding on that day. The veracity of that claim was central to the entire credibility assessment, yet it

could not be dismissed without at least some reference to the COI, As Peart J. put it in Imafu, this was precisely the kind of “unusual

matter which would have to be checked out before one could assert with any reliability that the applicant was not being truthful.”

41. Although there is no finding as to the origin of the applicant in the decision of the Tribunal, it seems at least generally implicit in

that decision that the ORAC’s finding to the effect that he was an Ivorian national who came from Adobo was accepted. In view,

however, of the approach taken in cases such as Camara and AMT and the specific requirements of the Article 5(1)(a) of the 2006

Regulations, the failure of the Tribunal to consider the credibility of his claim in the context of relevant COI in itself rendered the

decision invalid.

42. Given, however, that this matter will now be remitted to the newly established International Protection Tribunal, it is, I think,

important that the other matters raised by the applicant – and, specifically, the handling of documentary material relied on by him –

are also addressed.

The approach of the courts in judicial review proceedings

43. The general approach of the courts in judicial review applications of this kind where a request for asylum has been rejected on

credibility grounds is well established and was summed up by Cooke J. in IR in the following terms ([2015] 4 I.R. 144, 149):

“It is because in such cases the judgment of the primary decision-maker must frequently depend on the personal appraisal

of an applicant, that it is not the function of the High Court in judicial review to reassess credibility and to substitute its

own view for that of the decision-maker. Its role is confined when a finding of lack of credibility is attacked, to ensuring

that the process by which that conclusion has been reached is legally sound and not vitiated by any material error of

law.”

44. To that comprehensive statement I would add only the following: as this Court pointed out in NM (DRC) v. Minister for Justice and

Equality [2016] IECA 217, [2016] 2 I.L.R.M. 369, 395, the effective remedy requirement of Article 39 of the Procedures Directive

(Council Directive 2005/85/EC) as interpreted by the Court of Justice in Case C-69/10 Diouf EU:C:2011: 524:

“….imposes only one - albeit, critical - requirement, namely, that the remedy in question must remain an effective one. As

Diouf itself makes clear, this means that the supervisory jurisdiction of the High Court must be ample enough to ensure

that “the reasons which led the competent authority to reject the application for asylum as unfounded… may be the

subject of a thorough review by the national court.”

45. Given the importance of the analysis of this difficult issue which is contained in IR, together with the clarity of thought and

expression found in that judgment, it is, I think, helpful to examine Cooke J.’s approach in a little detail. Returning, therefore, to the

judgment in IR, Cooke J. next stated that ([2015] 4 I.R. 144, 149):

“…. the starting point for the decision-makers is, of course, the statutory provisions and guidelines relating to the process

which they are required to follow in assessing claims to refugee status and to subsidiary protection. Both the

Commissioner and the Tribunal in this jurisdiction are required by s. 11B of the Refugee Act 1996 to have regard to the

thirteen particular matters listed at paras. (a) to (m) of that section when assessing credibility. For the most part these

are factors or indicators which any experienced adjudicator will have in mind as a matter of common sense such as the

truth of the explanation given as to how an applicant travelled to the State; why asylum was not sought in safe countries

traversed en route and the use of forged documents for the making of false representations.

That mandatory check list is supplemented by the more pedagogic requirements of regulation 5 of the European

Communities (Eligibility for Protection) Regulations 2006 which both prescribe matters to be taken into account in

assessing facts and circumstances and, in subs. (2) and (3) give guidance as to the evaluation of persecution or serious

harm already suffered and as to the circumstances in which aspects of statements unsupported by documentary or other

evidence will not require confirmation. Furthermore, authoritative guidance as to the approach to be taken in evaluating

claims, in handling the burden of proof and according the benefit of doubt to an applicant is given in the UNHCR Handbook

on Procedures and Criteria for Determining Refugee Status (Geneva, 1992) (see in particular the section “Establishing the

Facts” at paras. 195-205).”

46. Cooke J. then observed that ([2015] 4 I.R. 144, 150):

“The present case is one in which the decision of the Refugee Appeals Tribunal of 17th April 2007 now sought to be

quashed, turns entirely upon the credibility of the applicant’s account of his personal history and raises a number of the

broad issues which are frequently encountered:

(i) how is this decision-maker to strike a correct balance when required to weigh evidence in different forms and of

different quality:

(ii) if the decision-maker doubts the plausibility of an account given in personal testimony what duty, if any, is there

to consider and assess the probative value and effect of documentary evidence or other secondary information

which appears to be supportive of the doubted testimony: and

(iii) where the decision-maker rejects as incredible the personal testimony of an applicant what is the extent of the

obligation, if any, to state the reasons for the rejection or discounting of other inconsistent documentary evidence

or secondary information?”

47. Having reviewed much of the pre-existing case-law on this topic, Cooke J. then set out the following principles which have been

consistently followed ever since ([2015] 4 I.R. 144, 151-152):

“So far as relevant to the issues dealt with in this judgment it seems to the Court that the following principles might be said to

emerge from that case law as a guide to the manner in which evidence going to credibility ought to be treated and the review of

conclusions on credibility to be carried out:-

“(1) The determination as to whether a claim to a well founded fear of persecution is credible falls to be made under the

Refugee Act 1996 by the administrative decision-maker and not by the Court. The High Court on judicial review must not

succumb to the temptation or fall into the trap of substituting its own view for that of the primary decision-makers.

(2) On judicial review the function and jurisdiction of the High Court is confined to ensuring that the process by which the

determination is made is legally sound and is not vitiated by any material error of law, infringement of any applicable

statutory provision or of any principle of natural or constitutional justice.

(3) There are two facets to the issue of credibility, one subjective and the other objective. An applicant must first show

that he or she has a genuine fear of persecution for a Convention reason. The second element involves assessing whether

that subjective fear is objectively justified or reasonable and thus well founded.

(4) The assessment of credibility must be made by reference to the full picture that emerges from the available evidence

and information taken as a whole, when rationally analysed and fairly weighed. It must not be based on a perceived,

correct instinct or gut feeling as to whether the truth is or is not being told.

(5) A finding of lack of credibility must be based on correct facts, untainted by conjecture or speculation and the reasons

drawn from such facts must be cogent and bear a legitimate connection to the adverse finding.

(6) The reasons must relate to the substantive basis of the claim made and not to minor matters or to facts which are

merely incidental in the account given.

(7) A mistake as to one or even more facts will not necessarily vitiate a conclusion as to lack of credibility provided the

conclusion is tenably sustained by other correct facts. Nevertheless, an adverse finding based on a single fact will not

necessarily justify a denial of credibility generally to the claim.

(8) When subjected to judicial review, a decision on credibility must be read as a whole and the Court should be wary of

attempts to deconstruct an overall conclusion by subjecting its individual parts to isolated examination in disregard of the

cumulative impression made upon the decision-maker especially where the conclusion takes particular account of the

demeanour and reaction of an applicant when testifying in person.

(9) Where an adverse finding involves discounting or rejecting documentary evidence or information relied upon in support

of a claim and which is prima facie relevant to a fact or event pertinent to a material aspect of the credibility issue, the

reasons for that rejection should be stated.

(10) Nevertheless, there is no general obligation in all cases to refer in a decision on credibility to every item of evidence

and to every argument advanced, provided the reasons stated enable the applicant as addressee, and the Court in

exercise of its judicial review function, to understand the substantive basis for the conclusion on credibility and the

process of analysis or evaluation by which it has been reached.”

48. Although, as I have already observed, it is not easy to prescribe a priori rules governing the assessment of credibility issues, it

would nonetheless be difficult to improve upon the statements of principle (and summary of existing case-law and practice) found in

this judgment.

The application of the IR principles to the facts of that case

49. It may be useful next to consider the manner in which these principles were actually applied by Cooke J. in IR, since the facts of

that case bear some passing resemblance to the present one. In that case the applicant was a Belarusian who had claimed that he

had beaten up and imprisoned for taking part in protest marches organised by an opposition party of which he had been a member. He

also said that following his release from prison he had taken part with his girlfriend in another protest rally at Minsk. He maintained

that his girlfriend then wrote a newspaper article concerning the protest which was published the following day, for which he said he

took the photographs. As a result, her family house was raided and searched by police a few days later.

50. At first instance the ORAC recommended that the applicant be not declared a refugee essentially upon credibility grounds. That

assessment was made on the basis of the applicant’s apparent lack of knowledge when questioned about the opposition party (“BPF”)

and its leadership. The report referred to the documents produced by the applicant but said “the authenticity of the documents

submitted cannot be verified or refuted”.

51. These issues were then raised on appeal before the Tribunal. The Tribunal member observed that had the applicant been a

member of the BPF and been imprisoned on this account, then “One would assume that this applicant should have a basic knowledge

of the Belarus Popular Front”. The Tribunal member found that the applicant lacked a basic knowledge of the BPF and gave a number

of examples of discrepancies in this regard which were said to arise from his answers at interview.

52. First, the Tribunal member cited country of origin information describing the role and political history of one Zianon Pazniak, a

prominent Belarusian politician and founder of the BPF party who is described as having fled from Belarus in 1996 to avoid being killed

by Alexander Lukashenko, the President of Belarus. The Tribunal member found that when questioned about Mr. Pazniak, the applicant

gave wrong or inaccurate answers. Second, the applicant was also questioned about elections in Belarus between 2001 and 2006, but

in his replies omitted any reference to parliamentary elections held on 17th October 2004. Third, he was questioned about what the

Tribunal member said there was a “well publicised split” in the BPF which took place in 1999. The applicant said it took place in 1994.

53. Cooke J. then referred to these matters and then observed ([2015] 4 I.R. 144, 155-156):

“Thus, it is on the Tribunal member’s appraisal of the applicant’s lack of basic knowledge of the history, leadership, and

activities of the party in which he claims to have been a member and for which he went to jail, that the negative finding

on credibility is reached.

If, as in other cases, the applicant’s claim turned entirely on his personal testimony, it would be difficult to persuade the

Court to interfere with that assessment. The applicant has been interviewed by the Commissioner and had an oral hearing

before the Tribunal member. Both decision-makers have seen and heard him and concluded that he lacks credibility. The

observations made by the Tribunal member are based on questions put to him which arise directly and logically out of the

applicant’s own account. On that basis, it could not be said that it was perverse or irrational for the Tribunal member to

consider that a better knowledge of the BPF could be expected from someone with the applicant’s level of education who

claims to have had the involvement in that party which he described.”

54. Cooke J. then 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 ([2015] 4 I.R. 144, 157):

“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.”

55. The judge added ([2015] 4 I.R. 144, 157-158):

“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 byline 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.”

56. All of this led Cooke J. to the following conclusions ([2015] 4 I.R. 144, 158-159):

“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.”

The application of the IR principles to the present case

57. As I have already indicated, the present case bears some resemblance to the facts of IR. Although both applicants claimed to

have suffered (in admittedly different ways) by reason of their participation with political parties in their respective countries of origin,

their oral testimony was found in both instances to be unsatisfactory by reason of unexplained inconsistencies. It may be said of both

the applicant in IR and in this case that adverse credibility findings were each made against them on the basis that if their respective

accounts regarding political involvement were correct, they both would surely have been more knowledgeable about political events

and personalities in Belarus and the Ivory Coast respectively than was disclosed in their respective interviews during the asylum

process.

58. Just as in IR, the applicant’s case is not, however, based solely on oral testimony, but it also involves reliance on a number of

documents. I have already discussed the issues which surround the electoral identity card. The applicant also produced, however, an

Ivorian identity card and an FPI membership card. While the ORAC stated that it could neither prove or disprove the authenticity of

either document, both appear - it is impossible to put the matter any further – to be genuine, although it may be that – again, to

echo the language of Cooke J. in IR – upon closer inspection and scrutiny the documents will prove to be inauthentic and the product

of an elaborate contrivance and fraud.

59. The applicant also produced a notification (“convocation”) from the Chief of Police dated 20th June 2011 which stated that he

had been reported by the “special forces of the President of the Republic” and that he was liable to be arrested for incitement to

hatred and civil disobedience, matters which “will be severely punished in our Republic.” He also sought to rely on a letter dated 21st

June 2011 from a (named) Bishop attached to the Church of the Latter Day Saints of Jesus Christ in Abidjan where he stated that he

had been “severely threatened by the rebels having learnt the rumour that he was housing the family of [RA].” Again, while the ORAC

was unable to offer any views on the authenticity of these two documents, the Tribunal member made no specific finding in relation

to any of these four documents (namely, the identity card, the RPI membership card, the notice from the Police Commissioner and the

letter from the Bishop) because he concluded that, as I have already stated, this information “does not assist the applicant in

circumstances where his credibility is found wanting to such a degree that the very basis of his claim is not believed.”

60. It seems to me that in this respect the Tribunal member fell into essentially the same error as did the Tribunal member in IR,

namely, to conclude that because the oral testimony of the applicant was so unsatisfactory from a credibility perspective there was

no need in the circumstances to consider the documentary evidence which had also been proffered by him. Yet just as the Belarusian

documents relation to conviction and imprisonment, the newspaper article concerning the rally etc., would, if shown to be authentic,

have demonstrated that the Tribunal member’s premise in IR that the applicant could not have been imprisoned or otherwise

persecuted for his political beliefs was fundamentally flawed because of his general lack of knowledge of the leadership structures in

the main opposition party in Belarus, the same can just as readily be said in the present case.

61. The Tribunal member concluded that the applicant in the present case could not have been at risk because of his basic lack of

knowledge of certain details concerning the political state of affairs in the Ivory Coast in the first five months or so of 2011 and the

nature of the conflict between the Gbagbo and Ouattara factions. The premise of the adverse credibility findings was that anyone

who had in fact participated in these political activities would have had a far greater knowledge of the relevant detail than this

applicant appeared to have had. Yet if, indeed, the applicant was a member of the FPI or he had been summoned by the Chief of

Police for his political activities or a Bishop of the Church of the Latter Day Saints was threatened in a menacing fashion by militants

because it was rumoured that he had given the family of Mr. A. shelter as these documents all appear to show – assuming, again,

that they were shown to be authentic - then the position would be very different.

62. This case presents yet another example of where the fourth principle identified by Cooke J. in IR assumes such importance: the

assessment of credibility must be made “by reference to the full picture that emerges from the available evidence and information

taken as a whole, when rationally analysed and fairly weighed.” Given that it is not disputed that Mr. A. is an Ivorian national who

arrived in Ireland at a time of intense civil conflict – in effect, what amounted to a civil war – in the Ivory Coast, the fundamental

question was whether his account of involvement with the FPI and the consequent risks to his life and limb was credible. But given

the alleged provenance of the documents and their obvious relevance to his claim, if true, it was incumbent in these circumstances

on the Tribunal member to assess such documentary evidence – if necessary, by making findings as their authenticity and probative

value - so that that very credibility could be assessed by reference to all the relevant available evidence. The potentially serious

consequences for Mr. A. if an otherwise meritorious claim were to be rejected – assuming again, of course, that his account was a

valid one – demanded no less.

63. It is, in any event, clear since the coming into force of the Qualification Directive (Directive 2004/83/EC) that the grant of asylum

is fundamentally governed by EU law: see Case C-57/09 and C-101/09 B and D EU:C: 2010: 661. As this Court has already made clear

in NM (DRC), the requirement of Article 39 of the Procedures Directive means that the supervisory jurisdiction of the High Court in

judicial review proceedings must nonetheless ensure that “the reasons which led the competent authority to reject the application for

asylum as unfounded… may be the subject of a thorough review by the national court.” This further underscored the necessity in the

present case for the Tribunal member to have examined the documentary evidence advanced by the applicant, precisely because

without an assessment of that evidence there could not have been a full assessment of credibility.

64. One may put all of this another way by saying that in the circumstances of the present case the Tribunal member was required to

have regard to the documentary material supplied by the applicant in support of his case, because, just as in IR, that material – if it

were to be accepted as authentic – would tend to bear out a claim (namely, that he escaped to avoid a real risk to his life and

person during the course of an intense civil conflict) which is also generally consistent with the available COI. Accordingly, this is an

instance of where the Tribunal erred in failing to have regard to “relevant statements and documentation presented by the protection

applicant” (Article 5(1)(b)), specifically, by failing to examine whether they were or might be authentic.

65. In these circumstances, just as in IR, the decision of the Tribunal cannot be allowed to stand and I consider that the High Court

fell into error in not quashing the decision on this ground. This conclusion is further underscored by the considerations identified by

the Court of Justice in Diouf and by this Court in NM (DRC), namely, the obligation to ensure that the reasons which led the Tribunal

to reject the asylum application as unfounded must be “the subject of a thorough review” in the course of any judicial review

proceedings contesting the legality of that decision. It would be clear from any such review that the Tribunal’s decision rested only on

a partial assessment of all the relevant evidence bearing on the applicant’s credibility.

Conclusions

66. It remains only to summarise my conclusions.

67. First, I agree with the conclusion of the High Court that Article 5(1)(a) of the 2006 Regulations does 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.

68. Second, the general question posed in 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 by Cooke J. in IR nonetheless provide very useful guidance in any assessment of credibility

issues in cases of this kind.

69. Third, the Tribunal member was, however, obliged in this instance to consider the COI relevant to any credibility assessment of

the applicant’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. His 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.

70. Fourth, while the Tribunal member was in principle entitled to draw adverse credibility findings from the inconsistencies contained

in the applicant’s own testimony (and, specifically, his apparent lack of knowledge of key political and military events in the Ivory

Coast in the months leading up to his departure in May 2011), he nonetheless fell into error in failing to consider key documents relied

on by the applicant. If these documents (such as an RPI identity card or the notification from the Police Commissioner) were indeed

authentic, they would place the applicant’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.

71. To that extent, therefore, the Tribunal member failed to comply with the obligation in Article 5(1)(b) of the 2006 Regulations to

examine all relevant documents supplied by the applicant. It further follows that the High Court also fell into error in failing to quash

the Tribunal’s decision on this ground.

72. For all of these reasons I would accordingly allow the appeal and grant an order of certiorari quashing the decision of the Tribunal.