Ireland - NN -v- The Minister for Justice and Equality & Ors, 15 February 2017,

In its judgment issued on the 15^th February 2017, the Court focused its deliberations on the issues of the correct burden of proof to be applied in assessing an applicant’s claim, notice of appeal and country of origin information, the method for assessing the credibility of an applicant’s claim and the process of an application for the extension of time.  

Incorrect Burden of Proof Applied

The first legal issue assessed in these proceedings was the standard of proof to be applied in assessing evidence in support of a claim for asylum. Counsel for the applicant submitted that the standard applied by the second respondent, that being the civil standard of the balance of probabilities, was incorrect. In their statement of grounds it was contended that when considering future persecution the correct standard to be applied is the less onerous ‘reasonable degree of likelihood’ standard.

Ultimately, in deciding the issue the Court chooses to follow the decision rendered by O’Regan J in O.N. v The Refugee Appeals Tribunal. This case acknowledges that there is in fact no universally accepted approach as regards determining what standard is most applicable. The issue is not provided for in the 1951 Refugee Convention and indeed the decision issued in M.M. v Minister for Justice, Equality and Law Reform expressly states that it is a matter to be determined by the domestic courts. There is no authority for the matter in this jurisdiction, nor is it on any legislative footing. However, O’Regan J concludes the judgment by stating that the civil standard of the balance of probabilities, coupled with the benefit of doubt, was the correct approach. Keane J states that, despite his analysis of the jurisprudence of the English Courts (that would appear to favour the lower threshold; Karanakaran v Secretary of State for the Home Department / R v Secretary of State for the Home Department ex p Sivakumaran)  he did not feel in any way compelled to depart from the reasoning of O’Regan J in O.N, and so the applicant failed on that point.

Regarding the issue of the second defendant’s failure to apply the benefit of the doubt properly when assessing the evidence, the Court consulted the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status. In assessing whether or not the balance of probabilities standard is subject to the benefit of doubt, the handbook stipulates that the benefit of doubt should only be given when the decision maker in question is satisfied as to the applicant’s general credibility. Such a finding was not reached in respect of the applicant in question, and hence the argument failed. 

Disregard of Notice of Appeal and Country of Origin Information

Further to the issue of the incorrect burden of proof, the applicant also sought an order of certiorari on the basis that the second named respondent failed to give due consideration to the notice of appeal filed on the applicant’s behalf by the Refugee Legal Services, his legal representative in the proceedings, and secondly that the second named respondent failed to acknowledge certain country of origin information relevant to the proceedings.

The Court relied on the decision rendered in M.A.R.A. (Nigeria) v The Minister for Justice and Equality, which considers Section 16 of the 1996 Act requirement that before deciding an appeal under the aforementioned section, the Tribunal shall give due regard to the relevant notice of appeal. The most relevant point of law to be extracted from that case in the context of the one at present was Carleton J’s assertion that in such circumstances as the Tribunal deems it necessary, appeals may be diminished to the essential point of law only whilst leaving certain issues unresolved, or it may be decided that a particular issue decides an appeal in its entirety. Keane J in turn stipulates that the issue of credibility (or lack thereof) effectively resolves the applicant’s case. Keane J made reference to the body of case law that has been developed which states that in matters pertaining to asylum law, a decision maker is not required to make a decision on every issue present, especially where an adverse finding has been found in respect of one of those issues. Furthermore, it was noted that the onus of proving the decision maker failed to take relevant information into account is on the applicant (G.K. v Minister for Justice)

Regarding the country of origin information, whilst acknowledging that the said information was not expressly mentioned by the respondent, the Court was of the opinion that the information furnished by the applicant – mostly pertaining to the financial corruption sweeping the government and the State forces – was of “peripheral relevance” and failed to establish the applicant’s claim that the State in his national country would fail to protect him.

Credibility Incorrectly Assessed

Counsel for the applicant submitted that the second named respondent erred in focusing upon ‘non-core’ issues when determining the credibility of the applicant’s claim, mainly the length of time the applicant spent in the last area in which he resided before leaving the Democratic Republic of Congo and the applicant’s journey from his native country to the State.

The Court rejected this ground, with the overall consensus being that failure to establish credibility on ‘non-core’ issues, as seemingly unimportant as they may be, would undoubtedly cause doubt in the mind of any decision maker.  The Court was unreservedly critical of counsel for the applicant’s reliance upon I.R. v Minister for Justice, Equality and Law Reform as authority for the matter, where it was held that the reasons for a finding of a lack of non-credibility must relate to the “substantive basis of the claim”. Keane J was adamant that the judgment issued a year previously in I.E. v Minister for Justice and Equality was the appropriate authority to be applied. In that case it was held that it is possible that a finding of a lack of credibility may be upheld if inconstancies arise in relation to the applicant’s account of their journey to the State. Furthermore it was stated that should issues of credibility arise in relation to ‘non-core issues’, it would logically follow that the individual’s credibility on core issues would be undermined.

Keane J accepted the decision issued in I.E. v Minister for Justice and Equality, and this coupled with the second respondent’s finding that several of the ‘core’ facts of the applicants claim had not been established on the balance of probabilities led to a negative finding on this point.

Extension of Time

Although technically a moot point given the fact that the claim had already failed on its merits, the issue of the criteria necessary to permit an extension of time for an appeal was also analysed towards the conclusion of the decision.

Section 5, sub-s (2) of the Illegal Immigrants (Trafficking) Act 2000 states that an application for leave to challenge a decision issued by the second named respondent must be made within 28 days of the applicant being notified of the decision. The applicant contends that he failed to initiate legal proceedings within the 28 day time limit as he did not understand the letter he had received from the Refugee Legal Service, advising him that there were no grounds for judicial review and that he ought to seek advice from another legal representative. The applicant submits that he found it extremely difficult to make contact with the Refugee Legal Service and on the occasions that he was successful, the same advice was simply repeated. Although there is no corroboration for the previous points, the Court accepted the difficulties faced by the applicant in obtaining a new legal representative given his €19.00 per week allowance.

In summarising the Courts rejection of the applicant’s claim for an extension of time, it was stated that it would not be “good law” to allow an extension for time where the issue was essentially new counsel entering the case with legal opinions that differed from their predecessors. Furthermore, the Court found that the applicant had failed to demonstrate “reasonable diligence” in seeking access to the courts and this played very negatively against him.