Judgment Title: R. -v- MJELR & Anor
Composition of Court:
Judgment by: Cooke J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 510
THE HIGH COURT
2007 648 JR
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND REFUGEE APPEALS TRIBUNAL
JUDGMENT of Mr Justice Cooke delivered on the 26th day of November, 2009
“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 respondent submitted and as is confirmed by the case law summarised at the beginning of this judgment, that the 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.”
4. The certificate for leave to appeal is applied for with a view to raising in the Supreme Court the following point of law:
“The High Court erred in holding that the proposition that the Tribunal was not obliged to mention in its decision every argument or piece of evidence advanced by an appellant before it, as long as the basis upon which it considered the application for asylum to be lacking in credibility was ascertained from the reasons given, was valid only when the arguments and evidence so advanced were ancillary to the matters upon which the substantive finding was based and could not by themselves have rendered the conclusion unsound or untenable if shown to be correct or proven.”
5. The criteria to be applied by this Court in ruling on an application for a certificate under s. 5 are not in dispute and the Court has been referred to the cases in which those criteria have been considered including:
Raiu v. R.A.T. (Unreported, High Court, Finlay Geoghegan J., 26th February, 2003);
Glancré Teoranta v. An Bord Pleanála & Anor.  IEHC 250;
Arklow Holidays Ltd. v. An Bord Pleanála (Unreported, High Court, Clarke J., 11th February, 2008).
6. So far as relevant to the present application the principles identified in that case law include, inter alia, the following:
• It is not enough that the case raises a point of law: it must be one of exceptional importance;
• The jurisdiction to grant a certificate must be exercised sparingly;
• 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;
• 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;
• The point of law must arise out of the court’s decision and not merely out of some discussion at the hearing;
• The requirements of exceptional public importance and the desirability of an appeal in the public interest are cumulative requirements.
7. In support of the application for a certificate, counsel for the respondents submits that the passage in para. 30 of the judgment quoted above applies a wrong legal test for the assessment of credibility and that the judgment will therefore create great difficulty for the Tribunal and for other similar administrative bodies called upon to assess the credibility of personal testimony. It is said that the documents relied upon by this applicant were “entirely predicated on the applicant having been a member of the BPF party” and that it was impossible for the Tribunal to verify their authenticity. It is submitted that the onus lay with the applicant to provide evidence of their authenticity when the issue had been identified in the s. 13 report.
“First of all there is the principle that a judicial or quasi-judicial tribunal must have regard to all the evidence before it and cannot cherry pick the evidence. If it is to act judicially it must consider all of the evidence put before it. If there is a conflict with respect to the evidence such that the tribunal cannot resolve that conflict, other than by, for good and substantial reasons, preferring one piece of evidence over another …, then it is incumbent on the tribunal or court as the case may be, to state clearly its reasons for doing so …It is perfectly within the province and jurisdiction of the R.A.T. … to prefer some [country of origin] information over other information. What is critical, however, is that they give a reason for doing so. That does not mean that every piece of country of origin information must be alluded to in the judgment, but where there is a major conflict and where the status of one piece of country of origin information versus another …is an issue of very significant importance in a case then the judgment should deal with that and if there is a preferment of one piece of evidence over another, it should be justified so that the tribunal can be seen not to have acted arbitrarily but to have acted reasonably, rationally and impartially.”
11. Where the totality of available evidence includes both oral testimony and documentary evidence, it is incorrect, in the Court’s judgment, to dismiss the latter as being merely “ancillary to a claim” for the sole reason that the personal testimony is considered to be of greater weight and has been found to be incredible. The probative value of the documents depends upon their nature and their content.