Neutral Citation [2015] IEHC 686
THE HIGH COURT
JUDICIAL REVIEW
[2011 No. 1186 J.R.]
IN THE MATTER OF THE REFUGEE ACT 1996, AS AMENDED
IN THE MATTER OF THE IMMIGRATION ACT 1999 AND
IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 AND
IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)
BETWEEN
R. A.
APPLICANT
AND
THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL AND IRELAND
RESPONDENTS
JUDGMENT of Mr. Justice Richard Humphreys delivered on the 4th day of November, 2015
1. The applicant originates from Abobo in Côte d’Ivoire where he was married with four children. He claimed to have suffered persecution there in his capacity as “a President” of a political party known as FPI, the Ivorian Popular Front, in his own area. He says that as a result of difficulties he suffered during unrest in 2011, including him being separated from his family, having been beaten and having his house set on fire, he left Côte d’Ivoire on 10th May, 2011.
2. The applicant says his journey to Ireland was organised and assisted by a person who he calls “an agent” which seems to be a euphemism for a people trafficker (see the terminology of s. 4 of the Criminal Law (Human Trafficking) Act 2008).
3. The applicant says he arrived on a green Côte d’Ivoire passport in his own name, which he presented on arrival. How this was sufficient to gain him entry (in the absence of a visa) was not really explained. Nor was his route to Ireland, other than that he says that he passed through a German speaking country.
4. He appears to have arrived in Ireland on 11th May, 2011 and applied for asylum the following day, 12th May, 2011, at the office of the Refugee Applications Commissioner in Mount Street.
5. Following the rejection of his application for refugee status, he appealed to the Refugee Appeals Tribunal, which conducted an oral hearing into his claim. At the hearing, he gave his evidence in French via an interpreter.
6. The Tribunal decision signed by the first named respondent is dated 25th November, 2011, and was sent to the applicant on 30th November, 2011. Allowing for three working days for receipt brings the date of receipt to 5th December, 2011. The notice of motion was filed on 13th December, 2011. Therefore, no time issue arises in this case.
7. The applicant’s evidence was rejected by the Tribunal Member essentially for reasons of credibility. A number of such grounds are set out in the decision, and a number of those relate to alleged conflicts in the evidence given by the applicant himself. At p. 14 of the decision, the member refers to the fact that the applicant gave somewhat inconsistent answers to the leader of this party in Abobo. At the Tribunal hearing, he gave his name as “Bamba Youssouff”. It was put to him at the substantive interview, he was asked to name the leader of the party in his area and he gave that name as “Kuadio Fibel”. In reply, he seems to have stated that the name he gave at interview was the name of the secretary.
8. A second contradiction was his contention that Bamba Youssouff was the representative from the area within parliament. He alternatively claimed that “General Bruno” was the Member of Parliament in his area.
9. Thirdly, he is said to have engaged in contradiction as to his evidence because in his section 8 interview and AYS 1 Form, he stated that his wife and children had fled to Ghana. In his evidence of his appeal, he claimed not to know where they were, and said that the earlier account was perhaps a mistake of the interpreter. He said that at that time he did not know where they were but that church members advised him that some people had fled to Ghana and other surrounding countries like Togo.
10. In addition to these alleged contradictions in the applicant’s evidence, the applicant was also challenged on not knowing the names of security forces in the area. He was asked why he did not give any names of groups recorded in country of origin information on file. In response, he stated that this was because he knew that “Gendarmes” (the name he gave) were the security agents for President Gbagbo and that is why he did not give the other names. It was also put to him that he appeared to have been unable to give the names of the youth militias loyal to President Gbagbo. In reply he stated that he did not name any of the militias because he knew “Gendarmes” was the security of Gbagbo, as it was put.
Are the credibility findings lacking in substance?
11. As a first ground of attack upon the Tribunal decision, Mr. Mark de Blacam S.C. for the applicant has essentially criticised the findings of contradiction or lack of credibility as being not weighty and as not being a basis for rejection of the applicant’s case.
12. It is well established that the weight to be assigned to particular matters before the Tribunal Member is a matter for that member (see e.g., per Stewart J. in H.J. (Zimbabwe) v. Minister for Justice, Equality and Law Reform [2015] IEHC 471 at para. 18). In my view the analysis of the alleged contradictory or incomplete account given by the applicant is well within the jurisdiction of the Tribunal Member. An approach which seeks to pull apart a decision in a microscopic manner runs the risk of creating an artificially high bar for a tribunal decision to have to cross in order to be upheld. This would move the centre of gravity from the tribunal to the court in terms of whether an application could lawfully be rejected. Refugee law cannot be construed as something to exist in isolation from administrative law generally, and administrative decision makers must enjoy an appropriate “margin of appreciation” as to how to assess contradictions in evidence, gaps in evidence, or other matters properly within their jurisdiction. The process by which the Tribunal Member arrived at his conclusions in this respect is not open to criticism.
Is the decision invalid because the Tribunal failed to give good reason for rejecting the applicant’s documentation?
13. As part of the application for asylum, the applicant presented an “electoral card” which was not accepted by the Tribunal as a sufficient basis for upholding the claim. The Tribunal found certain flaws in the document which in its view did not strengthen the case for reliance on the document. Mr. de Blacam’s next line of attack on the decision is to complain regarding the basis for rejection of this document.
14. He draws attention to the statement of Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 510 that, where documents are rejected, a reason for the rejection must be given. Mr. de Blacam contends that while a reason was given, it was a bad reason. While it seems to me that the “electoral card” botches the applicant’s name, by transposing his first name and surname, this was not the particular error claimed by the Tribunal. The Tribunal said that the card misspelled his name by incorrectly omitting the letter “h” although I cannot follow this argument as it does not seem to do so. Furthermore it held that the French word for May (Mai) is mispelt as “mais”. However this also appears to be a misunderstanding because the word “mais” does not appear on the document either. Rather the word “nais” appears, which, it seems reasonable to assume, is short for “naissance” which refers to the applicant’s date of birth and is therefore not an error.
15. The Tribunal Member’s decision would certainly seem to be open to criticism in relation to the manner in which this document was analysed and I would uphold the submission of the applicant that the Tribunal fell into error in this regard.
16. Is this error fatal to the validity of the decision overall? There are a number of features of the case that militate against such a conclusion:
(i) the fact that the document does indeed contain a flaw, although not the flaw particularly adverted to by the Tribunal Member,
(ii) the fact that the Tribunal found the applicant to be generally lacking in credibility, rather than deciding that the document should be held to undermine the claim of an otherwise credible applicant,
(iii) the fact that the applicant himself failed to clear up the confusion when he had the opportunity to do so at the tribunal hearing.
These factors (particularly the second one) seems to me to mean that it would be inappropriate to condemn the entirety of the Tribunal Member’s decision on the basis of the error here, which is relatively minor in the overall context. As Stewart J. has said in H.J. (Zimbabwe) at para. 18, it is important to look at the decision “in the round”, and doing so I am of the view that it should not be quashed under this heading.
The Tribunal’s failure to investigate the documents
20. Mr. de Blacam submits that the documents presented by the applicant had telephone numbers and contact details and were capable of investigation on behalf of the tribunal member, presumably by requesting the Refugee Applications Commissioner to undertake appropriate enquiries. He contends that there is a duty to have such investigations undertaken and relies on the decision of Barr J. in A.O. v. Refugee Applications Commissioner [2015] IEHC 253, which in turn relies on an Australian case San Zhan Qui v. Minister for Immigration and Ethnic Affairs [1997] FCA 1488. Ms. Cindy Carroll B.L. for the tribunal informed me that the A.O. decision is under appeal to the Court of Appeal, in which context it will be argued by the State that the Qui decision is not being followed even in Australia and should not be applied here.
21. However, in this particular case having carefully examined the applicant’s pleadings, it is clear that an allegation that the tribunal member failed to investigate, or have the Commissioner investigate, these documents, is not pleaded and it is therefore a point on which he cannot rely in these proceedings as a ground to challenge the validity of the tribunal member’s decision.
Country of origin information
22. I now turn to the country of origin information issue which was the central issue argued at the hearing. That issue seems to me to break down into a number of subsidiary questions. Firstly, is the tribunal member required to conduct any assessment of the country origin information where the applicant’s basic credibility is found wanting. This in turn depends on a more basic question as to what the tribunal needs to assess in the first place. A second question is, where the tribunal member is not explicitly disagreeing with the country of origin information, but merely finding that it is not sufficient to outweigh other elements which militate against an applicant, is the member required to address the information or engage in a narrative discussion.
What does the tribunal member need to address?
23. It is important to go back to the first principles of an asylum application. Section 2 of the Refugee Act 1996 defines a refugee as “a person who, owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it”, with certain specified exceptions.
24. It is clear at a very basic level that there are a number of conditions for qualifying as a refugee, all of which must be satisfied before a person can be recognised as a refugee. Failure to satisfy even one of these conditions is fatal to an application. These conditions include:-
(i) That the person has a subjective fear of persecution as defined.
(ii) One of the conditions for the existence of a subjective fear is that the asylum seeker is generally credible. If the applicant’s credibility cannot be accepted, it cannot be the case that they can be held to have a subjective fear, still less an objective one.
(iii) The fear of persecution for a convention reason must be objectively well founded.
(iv) The application must relate to persecution within the meaning of the Convention, and not to some lesser form of adverse treatment such as lawful prosecution, hardship or even discrimination.
(v) The persecution must be for one of the specified Convention reasons, namely race, religion, nationality, membership of a particular social group or a political opinion.
(vi) The applicant must be unable or owing their fear of persecution, unwilling to avail themselves of the protection of their country of origin. Thus a finding that state protection is open to an applicant is fatal to an application.
(vii) As an element of the inability to return to the country of origin it must be shown that the option of internal relocation is not reasonably open to the applicant.
(viii) The fear of persecution must relate to present or future persecution of the applicant. The past persecution in a country where for example the political situation has improved such that there is not now a present or future threat to the applicant is insufficient to ground an application.
(ix) The applicant must not be a member of one of the excluded categories.
25. Again it is important to emphasis as a matter of logic and statutory construction that an applicant must meet all of these criteria. If an application fails to clear any one of these hurdles, there is no obligation on the decision maker to consider the matter any further.
26. There is nothing specific to refugee law about this approach. In any statutory application, a decision maker can only be asked to deal with relevant issues. If an issue is not necessary for a decision, or would make no difference to it, it cannot be said that the decision should be quashed for failure to deal with that issue.
27. Thus returning to the asylum context, an asylum seeker could satisfy all but one of the hurdles I have mentioned above, but failure to clear that final hurdle necessitates the rejection of the application. There are a number of ways in which an individual tribunal member may deal with such a situation. The member may go through every one of the hurdles and explain whether the applicant has met the test or not, and why, concluding with the rejection of the application by reason of failure to meet at least one of those tests. A related option would be to refer to two (or more) grounds of rejection without referring to other possible grounds. Alternatively the tribunal member may focus only on a single ground which is being decided against the applicant and set out the reason why that issue is being decided against him or her, without dealing with any of the other points in the application.
28. I need to emphasise that each of these approaches is legitimate and any of them is lawfully open to a tribunal member.
29. It is a logical corollary of this approach that where the Tribunal holds that more than one hurdle has not been crossed by an applicant, but where the tribunal member’s analysis of one or more of those hurdles is flawed in fact or law, the decision will still stand if it can be supported by an independent valid reason for at least one of the grounds of rejection.
30. This approach must follow as a matter of logic, but in addition because to do otherwise would put the tribunal member in an inappropriate dilemma. It would be irrational if a member could safely give one valid reason for rejection and say nothing as to the other hurdles, but on the other hand if he or she decided to give two reasons for rejection, one of which turned out to be invalid, the decision would be quashed. Such an approach would be impractical, irrational and inappropriate and contrary to public policy.
31. A tribunal member’s rejection of an application, or indeed any administrative decision maker’s rejection of any application, is valid if the decision maker gives one valid independent and free-standing decision in relation to the applicant’s failure to meet any essential condition of obtaining relief. Where the decision maker has given such a valid decision in relation to one such condition, there is no obligation to go on to consider other conditions, because these would make no difference to the result. If the decision maker does for whatever reason refer to any such other condition, any defect in the validity of his or her treatment of that issue will not effect the validly reached conclusion (leaving aside the special case where it can be said that the defect in the decision making process clearly contaminated the otherwise valid decision overall).
32. This approach is consistent with the decision of Peart J. in Imafu v. Minister for Justice, Equality and Law Reform [2005] IEHC 416, which has been consistently followed in a series of cases including G.O. v. Refugee Appeals Tribunal [2013] IEHC 89 at para.12, O.A. v. Minister for Justice, Equality and Law Reform [2011] IEHC 78 (which was a decision of Clark J. after the adoption of the European Communities (Eligibility for Protection) Regulations 2006 which are alleged by the applicant here to change the position), and V.O. v. Minister for Justice Equality and Law Reform [2009] IEHC 21 which was another important decision of Clark J. to the same effect, in which the 2006 Regulations were considered and it was held that a credibility finding was not necessarily invalid by reason of failure to address country of origin information.
33. In addition this approach is consistent with the decisions of Stewart J. in H.J.E. (Nigeria) v. Minister for Justice, Equality and Law Reform [2015] IEHC 189 and B.U. (Nigeria) v. Minister for Justice and Law Reform [2015] IEHC 431 and of MacEochaidh J. in P.D. v. Minister for Justice and Law Reform [2015] IEHC 111.
34. In P.D., at para. 48 MacEochaidh J. clarifies the meaning of the obligation of the decision maker to determine what is sometimes referred to as the “core claim” of an applicant. He makes clear that “asylum claims require the establishment of a number of elements” and therefore that an adverse decision on one means that the decision maker does not have to labour under an obligation to decide other such issues.
35. I might observe that the phrase “core claim” is in some ways probably not the most helpful term, as it is likely to be understood to connote a duty to substantively address the issue of whether the applicant’s specific account of persecution occurred as alleged, whereas in view of the analysis I have outlined, it is not necessary for the tribunal to reach the detail of this issue if it finds that the applicant is for example so lacking in basic credibility as to make a further detailed examination of either the country of origin information or the details of the alleged persecution unnecessary (or if the application can be disposed of on some other ground, such as for example that even if true, the experiences of the applicant did not amount to persecution within the Convention).
36. I also have regard to the extempore judgment of MacEochaidh J. dated 16th July, 2015 in G.A.A. v. Minister for Justice, Equality and Law Reform [2015] IEHC 519, in which he holds that no provision of Irish or European Law requires that there be “an assessment” of country of origin of information in every case.
37. 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.
38. There are a number of reasons why this submission is unsustainable.
39. 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.
40. 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.
41. 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).
42. 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.
43. 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.
44. The applicant relies on the very recent decision of Eagar J. in M.M.S. v. Minister for Justice and Equality delivered on 13th October, 2015 (the day before the present judicial review was heard). In that decision, in support of the proposition that country of origin information must always be engaged with, Eagar J. referred to Horvath v. Secretary of State for the Home Department (UNHCR Intervening) [1999] INLR 7 (which had previously been viewed by Clark J. in V.O. as not setting down an invariable rule). Eagar J. went on to hold that, on the basis of the 2006 Regulations, the approach set out in Imafu no longer applies.
45. 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.
46. I have now had the benefit of reading the State’s written submissions in M.M.S., which exercise has thrown significant light on the otherwise puzzling situation whereby relevant material was not cited in that case. It seems clear to me that this failure to open all relevant authorities occurred because this particular issue was a relatively subsidiary one in that case, and arose in the context both of a welter of voluminous factual material and also of a considerable number of other legal issues that had to be considered. It also seems to me that the current practice whereby written legal submissions must be kept within a quite limited page count appears to have contributed to an excessive scaling back of the authorities cited in the M.M.S. case, and I am inclined to hope that the difficulty that has arisen here may facilitate a more flexible approach to longer written submissions in future cases where there are a large number of issues or authorities. Certainly I think that the imperative to inform the court of relevant previous authorities should be given priority by parties over administrative page limits. Having regard to the foregoing 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.
Is there an obligation to assess country of origin information in a narrative fashion?
47. The 2006 Regulations in any event only require the tribunal to “tak[e] into account” country of origin information. This is very distinct from - and clearly a much lower hurdle than - any alleged obligation to “assess”, “engage with” or “explain” its treatment of that material in a narrative fashion.
48. Starting from the judgment of Cooke J. in I.R., one can identify the principle that where country of origin information is “rejected” some substantial reason for doing so must be identified. This is nothing more than an instance, in the asylum context, of the general administrative law principle that where expert evidence is weighing on one side of the argument, some counterbalancing evidence or weighty considerations are required to displace that evidence if the decision maker intends to reject it or come to a conclusion fundamentally inconsistent with it (see Child v. Wicklow County Council [1995] 2 IR 447).
49. But what constitutes rejection of a piece of country of origin information? It seems to me quite clear that when one places asylum law in the context of overall administrative law, “rejection” in that context can only mean disagreement with the information and arrival at a conclusion inconsistent with it. For a tribunal member to say that a piece of country of origin information suggests that, for example, a particular episode of unrest occurred, but he or she is of opinion that it did not occur, would be “rejection” of country of origin information. However if the tribunal says that this unrest may or may not have happened, or that in effect that the country of origin information is all well and good, or even says little or nothing about it, but does not accept the application as well founded for reasons that are not in themselves fundamentally inconsistent with the information, for example because the applicant is held to be fundamentally lacking in credibility (such as, for example, because of his or her lack of knowledge of details of this unrest, as in essence happened in the present application), this does not constitute “rejection” of the country of origin information.
50. To say that the unrest documented in the information may or may not have occurred but either way the applicant was not party to it, is not “rejection”. To say that the unrest documented in the information did not occur is “rejection”.
51. It seems to me that the sense in which “rejection” is used by Cooke J. in I.R. is very much limited to a case where the country of origin information is positively disagreed with. It has no relevance to a situation where the country of origin information is amongst the matters which the Tribunal takes into account, but on which the Tribunal makes no specific finding of rejection, but rather holds that the information is not sufficient to establish that the applicant is a refugee. This way of dealing with country of origin information is, to my mind, not something that can be called “rejection” of it. The applicant’s account may be supported by country of origin information, but given that it is well established that the weight to be attached to such information is a matter for the Tribunal, it is hard to see how there could be any general obligation to engage in a narrative exposition of such information, to deal with it, engage with it, or any one of a number of myriad expressions which essentially boil down to a demand that the Tribunal have regard to the information to a particular level of detail to be specified by the court or preferably by the applicant. It seems to me that this procedure is not something that features in administrative law generally, and therefore by definition it cannot be said to be properly a feature of asylum judicial review. It is not for the court, still less the applicant, to dictate the reasoning process of the decision maker. Indeed, a demand that there be some sort of narrative acknowledgment of the points in favour of the applicant seems to shift the dynamic of shaping the decision away from the statutory decision maker and into the hands of one of the parties.
52. It seems to me that the controlling authority on this issue is the decision of Hardiman J. in G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 IR 418 to the effect that a party alleging that a particular matter was not properly considered must provide evidence to that effect. The decision in the present case recites that country of origin information was considered and that as a matter of administrative law that would normally be enough. Of course, the decision goes further and shows close attention to the country of origin information in the sense that some of it was put to the applicant who appeared remarkably unaware of important facts regarding the political situation in his home country despite his claim to have been subject to political persecution in his capacity as a local party leader.
53. I would be of the view that only where a Tribunal Member is coming to a conclusion is positively inconsistent with country of origin information and therefore requires an active rejection of, at least, a part of it, is there an obligation to “engage with” the material by way of a narrative analysis appearing on the face of the decision. This obligation arises from the right to reasons in administrative law because the applicant is legitimately entitled to a reason for the rejection of a particular piece of expert or objective evidence presented by him or her. The applicant does not have such an entitlement where the evidence is taken into account and held to be insufficient to establish the applicant’s claim, as will be the case in many applications.
54. To hold that an applicant is entitled to a narrative discussion of documentation, he or she provides, in the asylum context, where it is not being actively rejected in the limited sense I have described, would be absurdly to confer on a non-citizen applicant a greater suite of rights in administrative law than those conferred on a citizen whose fundamental rights were affected by some other class of administrative decision.
55. I am very far from saying that there is never a right to a narrative discussion of material provided, but such a right cannot be grounded upon the mere fact that the material is potentially supportive of an administrative application whether in the asylum context or otherwise. An additional element must be required before an administrative decision maker is required to engage in that narrative statement, such as that the objective material is being actively rejected as opposed to being explicitly or implicitly regarded as insufficient to require acceptance of the application.
56. Having regard to this distinction it is clear to me that the country of origin information in the present case was not rejected. There was not therefore any obligation to discuss it in a narrative fashion.
57. Mr. de Blacam describes the Tribunal’s statement that it has considered the country of origin information as “pro forma”, and says that this is not a case where a pro forma statement suffices because the country of origin information is “so material to the case”. He points to the fact that the country of origin information did show unrest in Côte d’Ivoire shortly before the applicant’s departure from that country, and referred in particular to two “World Ref” articles dated 2nd and 3rd June, 2011. He argues that these reports are so strongly supportive of the applicant’s case that they cannot be “dismissed” with what he called a “one-liner” in the decision.
58. 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.
Should I decline to follow the decision in M.M.S.?
59. Having regard to the foregoing I therefore have to expressly consider the question of whether to follow Eagar J’s recent decision in M.M.S. Mr. de Blacam, S.C., for the applicant urges me to do so on the basis that I can only disagree with the decision if it is clearly wrong.
60. It seems to me that in principle there are five broad reasons as to why a court can depart from a previous decision:-
(i) Where the decision was not a formally binding authority in the first instance, for example, because it is distinguishable on the facts (the most common basis for declining to follow a previous decision) or because the decision was persuasive only, such as where particular comments of the court in the previous case are properly to be regarded as obiter and not a binding part of the decision or where the earlier decision was of a lower court than the later court.
(ii) Where the previous decision overlooked an important legal provision which could have been determinative, such as a statutory provision or a crucial decided case that was not brought to the court’s attention; in other words, that the previous decision was arrived at per incuriam.
(iii) Where the relevance or authority of the previous decision has been undermined by a change in the law since it was delivered, either by way of a change of positive statutory or constitutional law or a development in national (or possibly, where indirectly incorporated into Irish law, international) jurisprudence, or where the relevance of the decision has been undermined by some change in factual circumstances which were assumed or found to exist in the original case, such as for example, where a statutory provision is upheld on the basis of a particular social need, but at a later date, the court’s assessment is that society has clearly and significantly changed in the meantime. A decision may potentially be departed from under the “change of circumstances” heading where it rests on a finding or assumption as to certain facts, but where a later court receives new and better evidence as to those facts which might cast the legal issues in a clearly different light.
(iv) Where there is a contradiction identified by the court between two or more previous decisions on a particular issue by courts of equal jurisdiction.
(v) Where the later court is of the view that the earlier decision was clearly wrong. While the Worldport decision [2005] IEHC 189 (Clarke J.) refers to the need to normally follow the decision of another judge of the same court unless there are “substantial reasons” for believing that the initial judgment was wrong, he identifies as one of those substantial reasons, a case where “there is a clear error in the judgment”, which I am taking as equivalent to the principle established in Irish Trust Bank Limited v. Central Bank of Ireland [1976-77] ILRM 50 per Parke J. that one ground from departing from a decision of a court of equal jurisdiction is that the judgment in question departed in some way from the proper standard to be adopted in judicial determination. Unlike the first four headings (which could potentially, although hopefully not too regularly, arise in relation to a decision of a higher court than that asked to review the previous decision), any departure from a previous decision under this fifth heading is, of course, confined to a previous decision of a court of equal jurisdiction.
61. It is perhaps obvious when one looks at the different bases on which a previous decision can be departed from that the “clearly wrong” standard does not apply when one is dealing with the first four factors above, such as a decision that is per incuriam or contradicts a decision of a court of equal jurisdiction. Two decisions may adopt reasonable but contradictory approaches to a particular question of statutory interpretation, and neither of those decisions may be “clearly wrong”. Yet a later court must choose one of them. To accept Mr de Blacam’s suggestion that I have to find one of those decisions to be “clearly wrong” would put the court in the position of Buridan’s Ass, condemned to starve due to inability to choose between two alternatives of equal status.
62. It follows for the reasons I have set out in this judgment that I have to find that the M.M.S. case was decided per incuriam. On that basis I propose to depart from it and instead to hold that no narrative consideration of country of origin information is required where the applicant’s credibility is rejected for reasons that are independent of such information, which I consider to be an approach consistent with the reasoning of Peart J. in Imafu, Clark J. in V.O. and other decisions referred to above.
63. In my view, the Imafu approach not only remains good law but is also an illustration of a wider principle as I have endeavoured to set out above, essentially that where an application can be independently and lawfully disposed of on the ground that there is a failure to meet one or more particular necessary conditions, there is no legal obligation to address any other ground.
Order
64. In the light of the foregoing findings, I will order as follows:-
