Supporting Documents:

RESPONDENT

1. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court. In addition, because this is an application for leave to appeal directly from the High Court, it is also necessary that it be established that there are “exceptional circumstances” warranting a direct appeal to this Court.

2. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33^rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.



3. It should be noted that any ruling in a determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court’s consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will be disposed of in due course in the substantive decision of the Court.


4. The application for leave filed, and the respondent’s notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.




5. The applicants are a married couple from Pakistan whose separate proceedings were dealt with together in the High Court (see [2018] IEHC 692). The issue raised in their applications for leave to appeal to this Court (dealt with in the one application form) concerns the circumstances in which an international protection decision-maker may be obliged to investigate the authenticity of a document relied upon by the person claiming protection.



6. The single point put forward in the application is that recent decisions of the Court of Appeal (in AO v Refugee Appeals Tribunal [2017] IECA 51) and the High Court (in TT (Zimbabwe) v Refugee Appeals Tribunal [2017] IEHC 750 and AMC (Mozambique) v Refugee Appeals Tribunal (No.2) [2018] IEHC 431) have created a tension with the standard of “close and rigorous scrutiny” established by the ECtHR in Singh v Belgium (Application No.33210/11).

Background

7. The couple say that they married in secret because the wife had been promised in marriage to one of her cousins. The claim for asylum was based on allegations of persecution brought about at the behest of the father of the wife. The document now in issue was a “first information report” (referred to as “the FIR”), allegedly filed with the police in Pakistan by the father, accusing the husband of abducting the wife.



8. The couple lived in the United Kingdom for a number of years and did not seek asylum there. The husband’s permission to reside in the UK expired in 2012 but they remained until 2015. In that year they travelled to this State and applied for asylum. The claim was rejected and the appeal to the IPAT was dismissed in April 2018. The decision of the tribunal member was grounded, inter alia, on the view that the FIR was “either unconvincing or of no help either way” because it was a photocopy and bore no “authenticable” identifying mark.

9. The High Court judgment notes that document given to the tribunal was a photocopy of what purported to be the FIR, with what purported to be a police stamp on it. The trial judge noted that the stamp did not purport to certify the copy as correct, and it was not established in evidence whether the stamp had been placed on the original document or on the photocopy. There was also a certified translation (the correctness of which was not in issue) which did not certify that the copy was the same as the original. In the circumstances, the judge considered that the evidential foundation had not been laid for a finding that the tribunal member had erred.



10. It is also noted in the judgment that the applicants had argued that the tribunal should have investigated the document. The trial judge found this argument to be “totally without substance” having regard to his judgment in TT (Zimbabwe). In any event, the point had not been pleaded. However, the issue is further discussed in the trial judge’s analysis of the decision in respect of the wife, where he stated that a document could rarely be said to be unquestionably fraudulent, but that it was legitimate to say that it was unconvincing. A standard could not be set whereby the tribunal would be obliged to accept documents unless they were demonstrably fraudulent. The probative weight to be attached to documents was a matter for the decision-maker.



11. The judgment also sets out a number of other findings. The point is made that the reliability of documents could not be determined in a vacuum. The trial judge found that the tribunal had considered all of the elements in the claim. Going through these in sequence, he found that the tribunal had not erred in doubting the authenticity of two purported copies of a newspaper; in rejecting a medical report as being of no probative value; and in finding that the applicants were not credible. He further held that the tribunal had not acted unfairly in drawing adverse inferences and that it was not unfair or inappropriate to comment on the failure to apply for asylum in the UK as being inconsistent with the fear expressed by the applicants. The omission from the tribunal decision of a discussion of evidence that bribes were commonly accepted by the police in Pakistan (for the purpose of facilitating false complaints) did not mean that it had not been considered.



12. Finally, the trial judge commented that the tribunal was entitled to draw adverse inferences from the fact that the applicants had come to Ireland and claimed asylum only after living for years in the UK, and only after their visas there had expired. It was entirely reasonable to view them as economic migrants.

13. The notices filed by the parties are available on this website and will not be summarised in any great detail here. The applicants say that a forensic examination could have been carried out to determine the authenticity of the FIR and of the newspaper that they had submitted as part of their evidence.

14. The Court has summarised the High Court judgment in considerable detail here for the purpose of demonstrating that the reasons for the applicants’ lack of success to date, both in the protection process and in the High Court, went far beyond the doubts about the authenticity of one document. Essentially, the case rested upon a range of adverse credibility findings based upon a range of factual matters. As such, it does not raise an issue of public importance.



15. There may well be cases where verification of a document is of central importance to the findings of a decision-maker, and the question of the decision-maker’s obligation to take some investigatory steps truly arises. However, having regard to the range of negative findings against the applicants in this case, it does not appear possible that the single issue now raised could have altered the outcome.



16. Finally, the Court points out that the issue now sought to be raised was not pleaded by the applicants. It was therefore not the subject of the grant of leave to seek judicial review. In those circumstances it is inappropriate to seek to argue it at this stage.



17. Leave to appeal will therefore be refused.

And it is hereby so ordered accordingly.