The High Court has ruled that the balance of probabilities, coupled with the benefit of the doubt where appropriate, is the standard for assessing past events and an applicant’s credibility in refugee and subsidiary protection cases in Ireland.
In a judgment delivered on 17 January 2017, Ms Justice O’Regan considered judicial review proceedings brought by two anonymised applicants, O.N. and I.N. The single issue argued was whether the Refugee Appeals Tribunal had applied the correct standard of proof when assessing their accounts of past events. O.N.’s underlying application was for refugee status; I.N.’s was for subsidiary protection.
The applicants argued that the lower “reasonable degree of likelihood” standard used to assess future risk should also apply to deciding whether their accounts of past events were credible. The respondents accepted that standard for assessing future risk, but argued that past facts should be assessed on the balance of probabilities, with the benefit of the doubt in appropriate circumstances.
The judge concluded that Irish law had not adopted the lower standard for assessing past events. She found that earlier Irish cases cited by the applicants addressed assessment of future persecution and did not establish the standard for deciding past facts or credibility. The judgment also noted that no single approach is universally accepted internationally and that neither the Refugee Convention nor relevant EU measures required a particular standard for past facts.
The court held that applying the balance of probabilities with the benefit of the doubt where appropriate safeguards the EU principles of equivalence and effectiveness. It said this remains the appropriate standard unless Ireland introduces more favourable rules under the relevant EU directive.
The judgment resolved the standard-of-proof issue argued in the two judicial review cases. The supplied judgment text does not state a separate order quashing either Tribunal decision or granting other substantive relief. It records that the judge had indicated she would extend time if she found the wrong standard had been applied, but the supplied conclusion does not record a time-extension order.