The High Court has certified two questions for appeal arising from its earlier decision to quash a Refugee Appeals Tribunal refusal of an asylum appeal. It rejected a third proposed question, finding that the earlier judgment did not reverse the applicant’s statutory burden of proof.
The respondents—the Refugee Appeals Tribunal, the Minister for Justice, Equality and Law Reform, the Attorney-General and Ireland—had asked the court to certify three questions as points of law of exceptional public importance. The application was heard by Mr Justice Barr under section 5(3)(a) of the Illegal (Immigrants) Trafficking Act 2000. The judgment was delivered on 16 June 2015.
The underlying judicial review concerned the Tribunal’s treatment of a letter and identification card attributed to AREF. In its earlier judgment, the court said discrepancies raised serious questions about the documents’ authenticity and found that the Tribunal had not investigated them sufficiently. It quashed the Tribunal’s decision dated 28 September 2009.
The respondents argued that this finding could require the Tribunal to take on an investigative role not provided for by the Refugee Act 1996, reverse the burden of proof, or breach statutory confidentiality by contacting the documents’ creator or author. The applicant opposed certification, arguing that the Tribunal had an investigative function and that reasonable attempts to examine relevant documents did not shift the burden of proof.
Justice Barr certified the question about the Tribunal’s investigative role. He said the Tribunal did not have to carry out inquiries itself: under section 16(6) of the 1996 Act, it could ask the Refugee Applications Commissioner, known as ORAC, to make further inquiries or provide information. The court said it would have been prudent for the earlier judgment to make this route explicit.
The judge refused to certify the proposed question about the burden of proof. He said the earlier judgment required reasonable steps to assess the documents’ authenticity, but did not say that the documents must be accepted as genuine if their authenticity could not be disproved.
He also certified the question about whether contacting a document’s creator or author could conflict with the Tribunal’s statutory duty to protect an asylum applicant’s identity. The court did not decide either certified question on appeal; it certified them for consideration by the Court of Appeal.