Ireland - AO v The Refugee Appeals Tribunal, 27 February 2017

Country of Decision:
Country of Applicant:
Date of Decision:
27-02-2017
Citation:
AO v The Refugee Appeals Tribunal [2017] IECA 51
Court Name:
Court of Appeal (Hogan J)
Keywords:
Relevant Legislative Provisions:
National / Other Legislative Provisions:
Ireland - International Protection Act 2015
Ireland - The Refugee Act 1996
Ireland - Illegal Immigrants (Trafficking) Act (2000)
UK - Immigration Act 2000 Article 108
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Headnote: 

The Court of Appeal in this case focused on two main questions: 

1) To what extent is the decision-maker on an application for international protection obliged to investigate the authenticity of documents relied upon by the applicant in those cases where here credibility is challenged; and

2) Whether sufficient steps were taken to ensure that the documentary materials provided by the applicant were in fact proven to be authentic. 

Facts: 

The applicant is a female Nigerian national who arrived in Ireland in January 2007 when she was 15 years of age.

The applicant fled Nigeria due to ill treatment from a relative, a proposed forced marriage, abduction and attempted rape. She was able to leave Nigeria with the help of a woman who provided her with a refugee card and a letter from the African Refugee Foundation (AREF). The applicant claimed that this woman travelled with her to Ireland but then suddenly disappeared once they landed, leaving the applicant to apply for asylum.

AO’s application was refused at first instance by the Office of the Refugee Applications Commissioner (ORAC) on grounds of credibility, specifically that her statements lacked coherence and plausibility. The Commissioner also noted that the letters from AREF could not be verified as being authentic, and the website address supplied did not exist. Several contact details also appeared to be inaccurate or forged. The applicant also had several inconsistencies regarding timeframes in her story.

The applicant appealed to the Refugee Appeals Tribunal (RAT), which ultimately ruled against her on grounds of credibility, finding several details in her story to be implausible and full of discrepancies, and affirmed ORAC’s finding that the letter provided by AREF contained several crucial errors that could not be relied upon.

Upon appeal to the High Court, the Court concluded that the RAT’s findings on credibility could not be sustained, noting:

  1. That it was in fact within reason that the applicant did not remember several minor details of her story –such as the Chief’s address and the names of persons who aided her –in light of her traumatic circumstances being an orphaned child at the time.
  2. The Tribunal had fallen into error by not focusing more attention on the AREF documents to determine whether they were a forgery, as emphasised by the Australian case of Sun Zhan Qui v. Minister for Immigration and Ethnic Affairs [1997] FCA 1488

Barr J also delivered a supplementary judgment granting the appropriate certificate of leave to appeal pursuant to s. 5(3)(a) of the Illegal Immigrant (Trafficking) Act 2000 (as amended).

Decision & Reasoning: 

The Court of Appeal focused on two main elements during its assessment, namely:

  1. Whether the Tribunal’s findings that the applicant lacked credibility based on discrepancies and inconsistencies in her narrative was accurate: and
  2. Whether sufficient steps were taken to ensure that the documentary materials she provided were in fact proven to be authentic.

These questions were considered by the Court as follows:

1. Although Barr J in the High Court was of the view that it might be understandable that the applicant could not remember names and timeframes, the Court of Appeal agreed with the Tribunal that it might be reasonable for AO to recall names of persons detailed by AO and who had spent some time with her.

While it was agreed that the applicant should not reasonably have been expected to know the name or address of the person who she was forced to marry, the Court of Appeal noted rather that it was not the applicant’s failure to recall details such as these that were at the heart of the Tribunal’s adverse credibility conclusions but rather that her overall story lacked “coherence and plausibility.” This was illustrated by the account given concerning the woman who assisted the applicant with travel arrangements and accompanied her on the journey to Dublin only to allegedly disappear once they arrived and effectively abandon her in a foreign country.

The Court of Appeal agreed with the Tribunal’s observation of the applicant that her general lack of coherence, detail and plausibility in her narratives both before the ORAC and the Tribunal could be said to be at odds with the Tribunal’s narrative, which could not ultimately be said to be impugned on grounds of reasonableness.

2. With regards to the credibility and authenticity of documents relied upon by the applicant, Hogan J in the Court of Appeal noted that if the documents which the applicant claimed came from the Foundation were found to be authentic then her asylum claim would be cast in an entirely new light. He referenced the case of IR v Minister for Justice and Equality which dealt with a similar factual scenario involving a Belarus national who claimed to have been persecuted for political opposition activities. The Tribunal in that case had determined that the applicant could not have suffered the harm which he claimed as he lacked sufficient knowledge of contemporary Belarusian politics. Based on this element the Tribunal proceeded to overlook potentially crucial documentation which the applicant provided in support of his claims. Cooke J in the High Court determined that the Tribunal member had erred in law in failing to consider all of the relevant evidence on credibility and adequately and objectively weigh it in the balance in reaching a conclusion on that issue. Furthermore, where documentary evidence of significant relevance is relied upon, the Tribunal member is under a duty not only to consider it but to give reasons for a finding that such evidence is unauthentic or unreliable.

Regarding the authenticity of the AREF documents submitted by the applicant in the present case, the court referenced Clark J in the High Court judgment of Nya v. Refugee Appeals Tribunal. She had relied on several UK rulings including R.P. (Proof of Forgery) Nigeria and O.A. (Alleged Forgery; Section 108 Procedures) Nigeria. The judge in the former case affirmed that any allegation of forgery must be proven by the person making the allegation. Furthermore, a document in question will have to be decided on the evidence as presented in the case as a whole rather than solely on evidence which shows whether the document itself is a forged one. Therefore a determination regarding authenticity should include a multifaceted assessment rather than the acceptance or rejection of a single document.

The Court of Appeal also made reference to the European Court of Human Rights case of Singh v Belgium, in which it was held that since documents concerning proof of citizenship were at the heart of the request for protection, the Court’s rejection fell short of the careful and rigorous review expected of national authorities by the effective remedy requirements of Article 13 ECHR. Despite this, Hogan J did not see the Singh obligation as being triggered in this instance. Rather, he established that it was open to the Applicant to show that the ORAC and the Tribunal were in error by concluding that the website address was not correct or that the e-mail address contained errors. Furthermore, the Tribunal member could not be faulted for her review and ultimate conclusion that the documents presented appeared to be inauthentic. 

Outcome: 

The appeal was allowed and the decision of the High Court was set aside by the Court. 

Other sources cited: 

 

 

 

Case Law Cited: 

Ireland - AO v. Refugee Applications Commissioner [2015] IEHC 253

UK - AO v. Refugee Appeals Tribunal [2015] IEHC 382

Sun Zhan Qui v. Minister for Immigration and Ethnic Affairs [1997] FCA 1488

UK - O.A. (Alleged Forgery; Section 108 Procedures) Nigeria [2007] UKIAT 00096

UK - R.P. (Proof of Forgery) Nigeria [2006] UKIAT 00086

Ireland - Nya v. Refugee Appeals Tribunal & Anor (Unreported, Clarke J.,5th February, 2009)

Ireland - I.R. v Minister for Justice, Equality and Law Reform [2009] IEHC 353.

UK - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

ECtHR - Singh and Others v. Belgium, Application No. 33210/11