Z.A. v The International Protection Appeals Tribunal & Ors (Approved)

Earlier in this decision, I made reference to the decision of MacEochaidh in S.Z., to which the Tribunal referred at para. [4.1]. On the evidence which was before the Tribunal in the present case, it was open to it to find that the Applicant, having spent a prolonged period of time in the first safe country and not having sought international protection, gave rise to a suggestion that the Applicant “was not truly fleeing persecution”. This is something the Tribunal was entitled to have regard to, but it is perfectly clear from the Tribunal’s decision that it did not form the prima facie basis relied upon by the Tribunal to reject the Applicant’s claim. Rather, having noted the failure of the Applicant to seek international protection as soon as practicable and the adverse inference given rise to, the Tribunal went on to consider, carefully, the core element of the Applicant’s claim and assessed all aspects of same in a lawful manner, looking separately at material aspects of the core claim as same related to the particular facts and circumstances.

It is also clear that the Tribunal assessed the evidence before it as a whole. Indeed, the Tribunal’s decision contains an explicit statement to that effect. In this regard, it is appropriate to refer to para. [4.18] where the Tribunal stated that:-

With regard to the Applicant’s reliance on documentation, the Tribunal set out, at paras. [4.7] to [4.9] the reasons why the Tribunal came to the view that the documents could not be relied upon “as their provenance has not been established on the balance of probabilities”. The Tribunal explained in a rational manner the reasons for doubting the provenance of the documents. It will be recalled that, as made clear at para. [1.4] of the Tribunal’s decision, the documents before the Tribunal comprised the list of documents set out in the first-instance decision, together with one further document, dated 11 January 2007. It is a fact that the Tribunal considered all documents submitted. As per the list of documentation (on internal page 3 of 29 in the Section 39 Report dated 29 October 2019, which was enclosed with the IPO’s letter to the Applicant dated 26th November 2019), the vast majority of documents submitted were “copy” documents. As per para. [4.7] of the Tribunal’s decision, the latter considered to be of most relevance the documents which the Applicant claimed “to be from the courts and police”. The Applicant’s evidence as to where he obtained these documents was that “he had contacted his lawyer and his lawyer provided them, but he did not know how his lawyer got them”. When asked by the Tribunal if he knew such documents existed or made enquiries regarding same “he said he did not, he just told the lawyer what he needed and the lawyer provided them”. The Tribunal found the foregoing to be “highly suspicious, given that the documents purported to be over a decade old”. There is nothing irrational about such a view, having regard to the evidence which was before the Tribunal. It was a view open to the Tribunal to come to, based on the evidence before it. Furthermore, the Tribunal went on to observe that “it is not impossible that a lawyer would have kept the documents for this long, but it was not considered that he would have had them to hand. The appellant was asked about this but was unable to provide further information as to how his lawyer got them, and it was clear to the Tribunal that the appellant lacked any curiosity or insight as to how these documents were procured.” The foregoing were views which the Tribunal was entitled to express in light of the evidence before it. Para. [4.7] concludes with the Tribunal stating that “the fact that he didn’t ask his lawyer if he had any documents, but told him what he needed are, in conjunction with the time that has passed, highly suspicious circumstances”. Again, the foregoing view cannot be said to fly in the face of reason or common sense, having regard to the evidence which the Applicant gave, and which was plainly carefully considered by the Tribunal. At this point, it is useful to re-state the basic principle that this Court is not the decision-maker. The approach of this Court cannot be to place itself ‘in the shoes of’ the Tribunal and opine on what decision this court might have come to from a merits-based perspective. That is wholly impermissible. What is at issue, and the only thing at issue, is whether the Tribunal acted lawfully. I am satisfied that it did.

Remaining with the topic of documentation, and in the manner explained at para. [4.8] of the Decision, the Tribunal plainly had other concerns as to the reliability of the documents, having regard to the fact that the Applicant provided a ‘new’ document, dated 11 January 2007, at the oral hearing, whereas the document provided previously was dated 18 January 2007. At para. [4.8] the Tribunal stated:

It is important to make the point, once more, that the various findings made by the Tribunal, including that the Applicant was vague as to how he was only providing the 11th January 2007 document at the oral hearing) are not the subject of any challenge. Nor is there any challenge to the Tribunal’s finding that the Applicant “lacked any curiosity or insight” as to how the documents in question were procured. The reasons why the Tribunal had significant concerns in respect of the reliability of the documents are clearly set out and they are squarely based on the evidence which was before the Tribunal. There is no general obligation on a decision-maker to authenticate a document. The Tribunal’s reasons for doubting the provenance of the documents were open to the Tribunal to form, and were rational and lawful, having regard to the evidence.

It should also be noted, at this juncture, that the Tribunal (in contrast to this court) had the benefit of hearing the Applicant’s evidence and observing his demeanour during the oral hearing. I am obliged to reject the submission made that the assessment of the reliability of the documents in question was based on nothing more than the Tribunal’s own ‘opinion’. A careful examination of the Tribunal’s decision wholly undermines that submission. Nor has the Applicant established that the approach taken by the Tribunal, with regard to documents, created an additional or unlawful burden on the Applicant to demonstrate that the documentation was genuine. It is clear that the Tribunal’s view that the provenance of the documents had not been established on the balance of probabilities was expressed in the context of assessing the Applicant’s core claim in all its aspects. The mere fact that a document (or a copy document) is produced by an Applicant does not require a Tribunal to accept the authenticity and reliability of same. The Tribunal was entitled to assess the extent to which weight should be given to the documents before it, in the context of a consideration of all the evidence and this was done in the present case.

It is also clear that questions were put to the Applicant with regard to the documents. This is wholly apparent from paras [4.7] and [4.8] of the Tribunal’s decision. Thus, the Applicant has not established that he was not offered an opportunity to provide such explanations as he wished to provide, in the context of the questions raised by the Tribunal. Submissions made on behalf of the Applicant with reference to the decision in B.W. v R.A.T. & Ors (No. 2) [2015] IEHC 759 cannot avail the plaintiff. The Applicant has not established that he did not have a meaningful opportunity to address the Tribunal’s concerns in respect of the documents which he purported to rely upon. The contrary is evident from paras. [4.7] and [4.8] of the Tribunal’s decision.

At this point it is appropriate to refer to an authority to which Counsel for the Respondents drew this Court’s attention. In the decision in M.Z. (Pakistan) v I.P.A.T. & Ors. [2019] IEHC 125 , Mr. Justice Humphrey’s held (at para. 17) of his judgment that:

In the present case, the Tribunal did not accept the Applicant’s account. That was a view the Tribunal was entitled to come to on the evidence. It was neither irrational nor unlawful. The probative value or weight to attach, or not, to the documentary evidence is quintessentially a matter for the decision-maker. This is clear from inter alia the decision of Birmingham J. (as he then was) in M.E. v R.A.T. [2008] IEHC 192 , wherein (at para. 27) the learned judge stated that:

The foregoing comments seem to me to be equally relevant in the present case. The conclusions reached by the Tribunal were rational and lawful.

The Applicant also submits that the Tribunal erred in law at paras. [4.19] and [4.20] by, the Applicant contents, “irrationally rejecting the passage of time as a tenable basis for the Applicant to be vague and/or vague and evasive in respect of his past relationships on the premise that the Applicant could have applied in the UK when matters were fresh in his mind.”

The essence of the Applicant’s submission is that, at para. [4.15], the Tribunal allowed for the passage of time being a rational explanation as to why an Applicant might give an evasive and vague account. Thus, contends the Applicant, it was irrational for the Tribunal not to accept the passage of time as being the factor which excused and explained the Applicant being vague and evasive in the present case.

Regardless of the skill and, indeed, ingenuity with which the submission is made, I am satisfied that it is fundamentally flawed. I say this for several reasons.

Any objective reading of para. [4.15] reveals that the Tribunal was very conscious of whether some allowance ought to be given to the Applicant “for the vagueness of his claim in circumstances where it was over a decade old”. In other words, the Tribunal, very understandably and appropriately, posed that ‘open’ question. The Tribunal did not, however, adopt the position that in every case, or in this particular case, vagueness and evasiveness would necessarily be excused by virtue of the passage of time. Having posed the foregoing question, the Tribunal went on to note that the Applicant could have applied for asylum in the UK “when these events were still relatively fresh in his mind but did not do so”. Thus, as part of a consideration of the open question (as to whether some allowance, or credit, should be given to the appellant for vagueness and/or evasiveness) arising out of delay, an issue which the Tribunal took account of was the undoubted failure on the part of the Applicant to seek international protection at a much earlier stage when events were still relatively fresh in his mind.

The foregoing was by no means the end of the Tribunal’s analysis, however, because it then moved to another issue which the Tribunal regarded as more important, namely, “these relationships, if true, would have had a dramatic impact on his life, in terms of them being both formative experiences and also in terms of them being directly linked to him being persecuted…”. It was having considered the foregoing that the Tribunal came to the view that the “vagueness and lack of detail” in the Applicant’s claim (findings which are not challenged) could not “be overcome by reference to the passage of time on the particular facts of this appeal”. There was no legal error in respect of the foregoing on the Tribunal’s part. The view which the tribunal came to was one which it was entitled to form, having regard to the evidence which it considered.

In short, the Tribunal made a lawful assessment of the credibility of the Applicant’s narrative. It reached adverse credibility findings and did so on a rational, logical and lawful basis, providing reasons for the views it formed. The Applicant’s credibility was not established and the following views by Mr. Justice Cooke in I.R. v R.A.T. [2009] IEHC 353 (at para. 3) bear repeating:

The Tribunal was tasked with analysing the evidence and coming to a view. It did so lawfully. The Tribunal found that the appellant gave a narrative of his past relationships which was not credible. That narrative concerning his past relationships was the basis of his whole claim. The Applicant’s general credibility was not established and the answer to all four questions posed by the Applicant (and set out at para. 4 of this judgment) is in the negative. Thus, the Applicant is not entitled to any relief and his application must be dismissed.

On 24 March 2020, the following statement issued in respect of the delivery of judgments electronically: “The parties will be invited to communicate electronically with the Court on issues arising (if any) out of the judgment such as the precise form of order which requires to be made or questions concerning costs. If there are such issues and the parties do not agree in this regard concise written submissions should be filed electronically with the Office of the Court within 14 days of delivery subject to any other direction given in the judgment. Unless the interests of justice require an oral hearing to resolve such matters then any issues thereby arising will be dealt with remotely and any ruling which the Court is required to make will also be published on the website and will include a synopsis of the relevant submissions made, where appropriate.”

Having regard to the foregoing, the parties should correspond with each other, forthwith, regarding the appropriate form of order, including as to costs, which should be made. In default of agreement between the parties on that issue, short written submissions should be filed in the Central Office within 21 days, (taking account of the Easter vacation). An effort has been made in this judgment to make redactions so as to prevent the identification of the Applicant. In the event that further or other redactions are felt necessary, the parties are invited, within the said 21 day period, to submit agreed proposals in that regard.