D. (E.) v. Refugee Appeals Tribunal & Anor

This is an application pursuant to s. 5(2) of the Illegal Immigrants (Trafficking) Act, 2000 for leave to commence judicial review proceedings against the respondents. The respondent refused the applicant a declaration under the Refugee Act, 1996 that she was a refugee and instead of appealing that finding to the Refugee Appeals Tribunal, she seeks leave to commence this judicial review. She is only entitled to commence such a case if her grounds are demonstrated to be substantial, the test that the legislation obliges me to apply.

So, the issues are in terms of what is left are: firstly, was credibility examined in a vacuum in isolation from relevant country of origin information and, secondly, how should the Refugee Applications Commission, or on appeal the Refugee Appeals Tribunal, properly assess the issue of credibility?

The first issue is whether the Commission, or the Tribunal, should consider an allegation of persecution in isolation from relevant country of origin information or whether any allegation made must be assessed in the light of what the assessor knows of what reliable sources say as to the situation in the home country of the applicant. On that, my view is that Judge Pearl in Horvath v. Secretary of State [1999] I.N.L.R. at 17 got it right. In that case he said:

To my mind, a very impressive analysis of the proper approach by an assessor of fact in a refugee claims situation is that given by Herbert J. in Kikumbi v. Refugee Applications Commissioner (Unreported, High Court, 7th February, 2007). In the course of that he said:

In addition to that, one notes what Clarke J. said in Imafu v Minister for Justice, Equality and Law Reform (Unreported, High Court, 27th May, 2005), that the assessment of credibility has to be carried out in accordance with the principles of constitutional justice; that where there is a significant error of fact it can undermine a decision; that you do not assess credibility on the basis of a gut feeling; that an adverse finding has to be based on reasons that are related to it, and that a finding of lack of credibility must be founded on a rational basis.