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High Court of Ireland Decisions
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Cite as:  IEHC 382
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Neutral Citation  IEHC 382
THE HIGH COURT
Record No. 2009/1194JR
THE REFUGEE APPEALS TRIBUNAL
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,
ATTORNEY-GENERAL AND IRELAND
JUDGMENT of Mr. Justice Barr delivered on the 16th day of June, 2015
1. This is an application by the respondents for a certificate of appeal to the Court of Appeal pursuant to s. 5(3)(a) of the Illegal (Immigrants) Trafficking Act 2000 (“the 2000 Act”) in respect of points arising from this court’s judgment in A.O. v. Refugee Appeals Tribunal & Ors.  IEHC 253, delivered on 17th April, 2015. Section 5(3)(a) of the 2000 Act provides as follows:
“(b) This subsection shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.”
3. Arising out of the judgment of this court in A.O. v. Refugee Appeals Tribunal & Ors.  IEHC 253, the respondents now request that this court certify the following questions as involving a point of law of exceptional public importance such that it is desirable in the public interest that an appeal should lie:
(ii) Whether the effect of the court’s judgment is to reverse the statutory burden of proof as provided for in section 11A(3) of the Refugee Act, 1996 (as amended)?
(iii) Whether by effectively placing an obligation on the Refugee Appeals Tribunal to contact the creator/author of a document tendered as evidence by the applicant, the court’s judgment requires the Refugee Appeals Tribunal to act contrary to the duty of confidentiality imposed on it by section 19(1) of the Refugee Act, 1996 (as amended)?
4. The test under s. 5 of the 2000 Act for when an appeal will lie is a replica of provisions which previously applied to judicial reviews in the planning and environmental area. As a result, a degree of consensus has emerged from the case law in both the planning and environmental area and the asylum and immigration area. These were summarised by Cooke J. in I.R. v. Minister for Justice  IEHC 510 (“I.R. (No. 2)”), where he considered the principles established in Raiu v. Refugee Appeals Tribunal (Unreported, High Court, Finlay Geoghegan J., February 26, 2003), Glancré Teoranta v. An Bord Pleanála  IEHC 250, and Arklow Holidays Ltd. v. An Bord Pleanála  IEHC 2. The case of I.R. (No. 2) concerned an application for a certificate in relation to Cooke J.’s seminal decision in I.R. v Minister for Justice, Equality and Law Reform & Ors  IEHC 353 (“I.R. (No. 1)”).
5. On the basis of those authorities, Cooke J. stated, at para. 6 of his judgment in I.R. (No. 2), that the relevant principles were as follows:
(ii) The jurisdiction to grant a certificate must be exercised sparingly;
(iii) The area of law involved must be uncertain such that it is in the common good that the uncertainty be resolved for the benefit of future cases;
(iv) The uncertainty as to the point of law must be genuine and not merely a difficulty in predicting the outcome of the proposed appeal or in appraising the strength of the appellant's arguments;
(v) The point of law must arise out of the court's decision and not merely out of some discussion at the hearing;
(vi) The requirements of exceptional public importance and the desirability of an appeal in the public interest are cumulative requirements.”
“In my opinion these omissions [referring to investigations which could have been carried out] rendered her decision manifestly unreasonable, within the principle explained by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation  1 KB 223. It is now established that a failure by a decision maker to obtain important information, on a central issue for determination, that the decision maker knows to be readily available may result in the decision being branded an exercise of power so unreasonable that no reasonable person could so exercise the power…”
30. In the circumstances, I am satisfied that the Tribunal did not carry out sufficient investigation of the letter and ID card. The discrepancies identified in the letter certainly raised serious questions in relation to its authenticity. It was up to the Tribunal to take active steps to ascertain the authenticity of the documents. As already noted, the Tribunal could have tried to make contact with the Federation to see if the documents were genuine. They could have sent copies of the documents to the Federation and asked them to verify whether the documents were genuine. In the circumstances, it is appropriate to quash the decision of the RAT dated 28th September, 2009, on this ground.”
8. Counsel for the applicant did not disagree with the respondents’ recitation of the law governing an application for a certificate. In particular, the applicant agreed that the key authority upon which this court should determine the respondents’ application is the decision of Cooke J. I.R. (No. 2).
9. In relation to the respondents’ submissions that a certificate should be granted, counsel for the applicant stated that he did not regard the questions which the respondents wish to refer to the Court of Appeal as being ones of exceptional public importance such that it is necessary to refer them to the Court of Appeal in the public interest.
10. I now turn to consider the three questions which the respondent has asked this court to certify.
The First Question - an investigative role for the RAT?
12. Section 8(1)(a) of the 1996 Act provides that:
(i) Shall be interviewed by an immigration officer as soon as practicable after such arrival, and
(ii) May apply to the Minister for a declaration.”
17. The respondents submitted that the judgment of this court raises a very important point of law which does not appear to have been considered previously by an appellate court: whether a Tribunal decision can be vitiated because the Tribunal did not carry out an investigation of the type envisaged by this court.
18. One of the bases upon which a point of law can be held to be exceptional is that the law is in a state of uncertainty sometimes because the issue has not previously been determined or because there are conflicting judgments on the point. The respondent submitted that in the instant case the conflict is between the law set out in legislation in relation to the role of the Tribunal and the law as determined by this court which, in the respondents’ submission, essentially assigns an investigative function to the Tribunal.
19. The respondents submitted that this issue arises directly from the decision of this court and has serious implications beyond the facts of this particular case, given the potential consequences for the conduct of its appellate functions by the Tribunal and its interaction with the Refugee Applications Commissioner. The respondents stated that it is has considerable significance for future cases involving the Tribunal brought before the High Court; and that it is in the interest of justice that clarity and certainty should be brought to the role of the Tribunal both for appellants and for the appellate body itself.
20. The applicant submitted that the respondent is mistaken insofar as it suggests that the Tribunal does not have an investigative role. In this regard, the applicant made reference to the decision of Clarke J. in Idiakheua v RAT  IEHC 150 where he stated:
23. The Tribunal Member is required to assess the claim. In this regard the applicant referred to Regulation 5 of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) (“the Protection Regulations”). Part of any such assessment, it was submitted, would necessarily involve establishing whether an important document is authentic. In this regard, the applicant made reference to the discussion of the “assessment” of asylum applications in M.M. v Minister for Justice, Equality and Law Reform C-277/11.
24. The applicant contended that, in light of M.M., the duty of assessment under the Protection Regulations applies to both the ORAC and RAT stages of the procedure.
25. The applicant therefore submitted that this court was correct in its judgment and that it acted in accordance with normal standards in making its decision. The applicant stated that there is no real suggestion that the court decided to depart from established principles or if there is such a suggestion it has no merit. In this regard, the applicant pointed out that the respondent did not refer to any conflicting decisions.
The Second Question - reversal of the statutory burden of proof?
27. Section 11A(3) of the Act provides as follows:
29. The respondent submitted that this issue arises directly from the decision of this court. The respondent argued that there is again a conflict as between the law as set out in the legislation and the law as determined by this court and as with the first issue the point of law is of exceptional public importance, affecting as it does the many asylum seekers seeking a declaration of refugee status who choose to appeal a recommendation by the Commissioner that they not be given such a declaration. The respondent stated that it is also of significant importance for future cases seeking to challenge the decisions of the Refugee Appeals Tribunal. The interests of justice demand that clarity in relation to such an important issue as the burden of proof should be available to appellants and to the appellate body.
30. The applicant submitted that, in effect, what is in question here is the application of a principle outlined in I.R. (No. 1). The applicant took the view that the court applied that principle correctly and in a standard way. The applicant argued that if I.R. (No 1) itself was not suitable for a reference (as Cooke J. held in I.R. (No. 2)), it was difficult to see how this case could be suitable for a reference.
31. The applicant submitted that all that was happening in this case was the application of standard administrative law principles, including the principle that if a document before a decision maker is discounted as not being authentic, reasonable attempts should be made to establish it is authentic. In that regard, the applicant referred to the ninth principle set out by Cooke J. at para. 11 of his judgment in I.R. (No 1) where the learned judge stated:
The Third Question - the Tribunal’s duty to ensure confidentiality
34. Section 19(1) of the 1996 Act provides that:
36. The resolution of the conflict between the duty placed on the Tribunal by legislation and that imposed on it by this court is of exceptional public importance as it may adversely affect the safety and security of asylum seekers. In looking at the public interest the court may take into account the broader context as well as the circumstances of the parties to the case themselves and this issue does not affect only this particular applicant but many others as well.
37. The respondents’ request is that the three questions set out above should be certified as involving points of law of exceptional public importance such that it is desirable in the public interest that an appeal would lie against the judgment of this court in A.O. v. Refugee Appeals Tribunal & Ors.  IEHC 253. It was submitted that the criteria in I.R. are clearly met, and that given the importance of the issue legally and practically, it is desirable that the issue would be resolved at the highest possible level. This is not least because any determination of the legal issues would probably require application of those principles to the facts of the case, including the facts of the asylum applications and the reasons given by the Refugee Appeals Tribunal for the refusal of their appeals.
38. The applicant disagreed with this submission and submitted that it was not clear that confidentiality must be breached in order to carry out investigations. Moreover, the applicant submitted that the right to confidentiality is that of the applicant asylum seeker and the applicant asylum seeker or her legal advisers may be asked if he or she has any objection to any particular inquiry being carried out. The applicant pointed out that again no conflicting authority was cited.
40. That the RAT has an investigative role does not appear to be in doubt. In F.K.S. v. The Refugee Appeals Tribunal & Anor  IEHC 137, Cooke J. considered the roles played by the Commissioner and the Tribunal under the scheme of the 1996 Act and pointed out that the Tribunal member:
44. The court also draws support for this view from the decision of Clark J. in S.R. [Pakistan] v. Refugee Appeals Tribunal & Ors.  IEHC 26, where it was stated at para. 29:
47. It may have been prudent for this court to have explicitly stated in its judgment that the investigations which it considered the Tribunal ought to have undertaken could have been carried out by way a s. 16(6) request to ORAC, rather than the RAT being under an obligation to carry out such investigations itself. In the circumstances, I am satisfied that the respondent has raised a point of law of exceptional public importance such that it is desirable in the public interest that an appeal should be brought. I will therefore certify the following question for the consideration of the Court of Appeal:
49. This is not in fact the case. The court held as follows at para. 30 of its judgment:
51. At no point did this court state that a failure to disprove the authenticity of the documents meant that they had to be accepted as genuine, and indeed the court noted that the letter submitted by the applicant contained discrepancies which raised serious questions about its authenticity. There is, accordingly, no question of the judgment of this court purporting to reverse the statutory burden of proof laid down in s. 11A(3) of the Refugee Act, 1996 (as amended), as has been contended on behalf of the respondents. Accordingly, I refuse to certify the question proposed by the respondent on this issue.
52. The final issue raised by the respondent is as to whether by effectively placing an obligation on the Refugee Appeals Tribunal to contact, or cause to be contacted, the creator or author of a document tendered as evidence by the applicant, the court’s judgment requires the Refugee Appeals Tribunal to act contrary to the duty of confidentiality imposed on it by s. 19(1) of the Refugee Act, 1996 (as amended). The applicant submits that the right to confidentiality is that of the applicant asylum seeker and the applicant asylum seeker or her legal advisers may be asked if he or she has any objection to any particular inquiry being undertaken. Such a step, it seems to me, would fall within the duty of the RAT to cooperate with an applicant in the assessment of an asylum claim and does not go beyond the provisions of the Refugee Act 1996 and Article 4(1) of Council Directive 2004/83/EC (the Qualification Directive).
53. However, the statutory obligation in relation to preserving the confidentiality of the identity of the asylum seeker is an important obligation placed on the RAT. I am satisfied that the respondent has made out sufficient grounds for certifying a question of law of exceptional public importance under this heading and that it is desirable in the public interest that an appeal be brought in respect of this issue. Accordingly, I will certify the following question for the determination of the Court of Appeal:
54. For the reasons set out above, the court will certify the following two questions as ones involving points of law of exceptional public importance:
(ii) Whether by effectively placing an obligation on the Refugee Appeals Tribunal to contact the creator/author of a document tendered as evidence by the applicant, the court’s judgment requires the Refugee Appeals Tribunal to act contrary to the duty of confidentiality imposed on it by section 19(1) of the Refugee Act, 1996 (as amended)?