High Court quashes IPAT decision for failing to provide reasoned analysis on credibility assessment.

[2019] IEHC 298

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 657 J.R.]

BETWEEN

O.P. AND X.P. (A MINOR), Y.P. (A MINOR)

AND X.P. (A MINOR)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY,

THE INTERNATIONAL PROTECTION TRIBUNAL,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr Justice David Keane delivered on the 8th May 2019

Introduction

1. This is the judicial review of a decision of the Refugee Appeals Tribunal, now the International Protection Appeals Tribunal (‘the

IPAT’), dated 14 July 2016 and made under s. 16(2)(a) of the Refugee Act 1996, as amended (‘the Refugee Act’), affirming a

recommendation of the Refugee Applications Commissioner (‘the Commissioner’) that the first applicant and, by extension, the other

applicants as her minor children, should not be declared to be refugees (‘the IPAT decision’).

2. On 18 October 2016, Humphreys J gave the applicants leave to apply for an order of certiorari quashing the IPAT decision.

3. At the time when leave was granted, the International Protection Appeals Tribunal was known as the Refugee Appeals Tribunal.

When s. 71(5) of the International Protection Act 2015 (“the Act of 2015”) came into force on 31 December 2016, the former was

substituted for the latter in these proceedings by operation of law.

Background

4. The first applicant is a national of Zimbabwe, born in 1986. The three other applicants are her dependent children.

5. The applicants applied for asylum on 17 September 2014 upon their arrival in the State at Dublin Airport . In essence, the first

applicant claims to have a well-founded fear of persecution on grounds of imputed political opinion and membership of a particular

social group (effectively, her mother’s family) if returned to Zimbabwe, because of her mother’s perceived opposition to the ruling

political party there (despite her father’s membership of it and status as national army veteran), which resulted in the rape of the

applicant in 2002 when she was 15 years old by members or supporters of that party as a calculated act of political violence.

6. In short summary, the applicant’s personal narrative of subsequent events was as follows. Her mother, from whom she had become

separated, fled to Canada in 2002, obtaining refugee status there in 2006 (as evidenced by certain documentation submitted to the

decision-maker on behalf of the applicants), whereas the first applicant fled to South Africa, obtaining false identity documents that

allowed her to remain there.

7. The applicant stated forthrightly during her first interview immediately upon arrival in the State that, while living in South Africa,

she had returned to Zimbabwe twice - once in 2013 and once in 2014 for three days each time - using her false South African

identity documentation, having been sent there by her South African employer, an office automation equipment company, that

required her to travel on assignment to the capital of Zimbabwe, Harare, to conduct market research into the demand for its products

or services there, as it was then contemplating opening a branch.

8. The first applicant’s persecutors located her in South Africa in 2014 (probably, she believes, through her former partner, a

subsequently convicted criminal, at whose hands she had suffered domestic violence and who was an expatriate supporter of the

governing party in Zimbabwe).

9. Her flatmate was attacked (in what the first applicant believes to be a case of mistaken identity, because the attackers used her

name in berating her flatmate during the assault about her support and that of her mother for the political opposition in Zimbabwe),

triggering her onward flight to Ireland with her children in September 2014.

10. The first applicant was interviewed by an immigration officer in accordance with the requirements of s. 8 of the Refugee Act on 18

September 2014 and completed an asylum application (‘ASY-1’) form on that date.

11. Having completed the necessary questionnaire for the Office of the Refugee Applications Commissioner (‘ORAC’) on 26 September

2014, the first applicant was then interviewed by an authorised officer of the Commissioner, pursuant to s. 11 of the Refugee Act, on

1 October 2014.

12. ORAC wrote to the applicant on 23 October 2014, enclosing a report, dated 10 October 2014, pursuant to s. 13 of the Refugee

Act, recommending that the applicants should not be declared to be refugees on the basis that the first applicant had failed to

establish, to a reasonable degree of likelihood, that she and her children would be subjected to persecution if returned to Zimbabwe.

13. Through their legal representatives, the applicants submitted a notice of appeal, dated 30 October 2014. That document has not

been exhibited in these proceedings.

14. The IPAT decision is dated 14 July 2016 and was furnished to the first applicant under cover of a letter, dated 15 July 2016. It

concludes that the first applicant had failed to establish that the applicants would be at risk of persecution if returned to Zimbabwe.

Procedural history

15. The applicants sought, and were granted, leave to bring these proceedings on 18 October 2016, based on a statement of

grounds, dated 12 August 2016, grounded on an affidavit of the first applicant, sworn the previous day. The Minister filed a statement

of opposition, which is effectively a bare traverse, on 16 February 2017.

Grounds of challenge

16. In their statement of grounds, the applicants enumerate six separate grounds of invalidity of the IPAT decision that, essentially,

resolve into four specific arguments.

17. The first is that the decision fails to properly apply the requirements of Regulation 5 of the European Communities (Eligibility for

Protection) Regulations 2006 and 2011 (‘the 2006 Regulations’), then applicable, concerning the necessary approach to the

assessment of facts and circumstances by a protection application decision-maker. Those Regulations gave effect, at the material

time, to Council Directive 2004/83/EC (‘the Refugee Qualification Directive’) and Regulation 5 of the former transposes Article 4 of the

latter into the law of the State.

18. The second is that the decision fails the test of rationality or reasonableness, as authoritatively restated by the Supreme Court in

Meadows v Minister for Justice, Equality and Law Reform and Ors [2010] IESC 3, [2010] 2 IR 701, because of the manner in which

the tribunal accepted the credibility of some parts of the applicant’s unsupported statements, while rejecting others without

reference to any rational analysis or cogent reason for drawing that distinction.

19. The third argument is that the IPAT decision fails to properly apply the rider, or final clause, in Reg. 5(2) of the 2006 Regulations,

which provides that compelling reasons arising out of previous persecution or serious harm alone may warrant a determination that the

applicant is entitled to refugee status, even where there are good reasons to consider that persecution or serious harm of that sort

will not be repeated should the applicant return to the country concerned.

20. The fourth argument is that the IPAT decision fails to take proper account of the relevant facts disclosed by the country of origin

information that was before the tribunal concerning both state violence towards persons on the basis of imputed or perceived political

opinion and the use of sexual violence for the purpose of political repression on behalf of the ruling party, contrary to the requirement

under Reg. 5(1) of the 2006 Regulations to take into account all relevant facts as they relate to the country of origin at the time of

taking a decision.

Analysis

i. the assessment of facts and circumstances and the issue of credibility

21. Reg. 5(1)(b) of the 2006 Regulations requires a refugee status decision-maker to take into account the relevant statements and

documentation presented by the protection applicant including information on whether he or she has been or may be subject to

persecution.

22. On the question of the assessment of the evidential value of the unsupported statements of a refugee status applicant, the

United Nations High Commissioner for Refugees (‘UNHCR’) Handbook on Procedures and Criteria for Determining Refugee Status and

Guidelines on International Protection (1979, reissued in 2011) (‘the UNHCR Handbook’) has this to say on the benefit of the doubt:

‘203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for

some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of

his case and, indeed, if this were a requirement the majority of refugees would not be recognised. It is therefore

frequently necessary to give the applicant the benefit of the doubt.

204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked

and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent

and plausible, and must not run counter to generally known facts.’

23. In V.Z. v Minister for Justice [2002] 2 I.R. 135 (at 145), the Supreme Court (per McGuinness J; Keane CJ, Denham, Murphy and

Murray JJ concurring) noted the use by the High Court in the decision then under appeal of the UNHCR Handbook as an aid to the

interpretation of the Geneva Convention (at 145). The Supreme Court endorsed that approach as correct (at 148).

24. Reg. 5(3) of the 2006 Regulations, a literal transposition of Art. 4(5) of the Refugee Qualification Directive, nods in the direction of

the extract from the UNHCR Handbook just quoted, when it states:

‘(3) Where aspects of the protection applicant's statements are not supported by documentary or other evidence, those

aspects shall not need confirmation when the following conditions are met—

(a) the applicant has made a genuine effort to substantiate his or her application;

(b) all relevant elements at the applicant's disposal have been submitted and a satisfactory explanation regarding

any lack of other relevant elements has been given;

(c) the applicant's statements are found to be coherent and plausible and do not run counter to available specific

and general information relevant to the applicant's case;

(d) the applicant has applied for protection at the earliest possible time, (except where an applicant demonstrates

good reason for not having done so); and

(e) the general credibility of the applicant has been established.’

25. It seems to me beyond doubt that this is a case in which most, if not all, of the central aspects of the first applicant’s

statements are not supported by documentary evidence (leaving aside for the moment the applicants’ contention that the first

applicant’s statements are consistent with – and thus supported by - certain country of origin information). Those aspects most

obviously include: the first applicant’s family circumstances in Zimbabwe prior to her departure from the country; the political

allegiances and activities of both her father and mother there; the occurrence and circumstances of the rape of the first applicant in

Zimbabwe in 2002; the occurrence and circumstances of the first applicant’s business trips to Harare, the capital of Zimbabwe, in

2013 and 2014 when living in South Africa; and the occurrence and circumstances of the attack upon the first applicant’s flatmate in

South Africa in September 2014 that triggered the applicants’ flight to Ireland.

26. For that reason, it is a matter of immediate concern that neither in the section of the IPAT decision headed ‘Analysis of Credibility’

nor anywhere else in it are the requirements of Reg. 5(3) of the 2006 Regulations addressed in terms. Further, instead of accepting

those aspects of the first applicant’s unsupported statements that have not been confirmed (presumably, by other evidence available

to the tribunal), the IPAT decision rejects various aspects of those statements as lacking credibility. This means that the applicants

and, by extension, the court must attempt to infer which of the necessary conditions for the acceptance of the first applicant’s

statements without confirmation under Reg. 5(3) the tribunal concluded had not been met. Had the tribunal concluded that the

applicants had not made a genuine effort to substantiate their application? Or that they had failed to provide a satisfactory

explanation for the lack of a relevant element of their claim and, if so, which? Had the tribunal found that the first applicant’s

statements were not coherent or plausible or that they ran counter to available information and, if so, how? Had the tribunal

concluded that the first applicant had failed to establish her general credibility? If so, in what way? Or had the tribunal decided that

some combination of those conditions had not been met?

27. The ‘Analysis of Credibility’ section of the IPAT decision is divided into six sub-sections dealing with specific aspects of the first

applicant’s statements, followed by a final concluding paragraph.

28. The first sub-section deals with the rape and attack upon the first applicant in Zimbabwe in 2002. The first note of scepticism

concerning the first applicant’s statements is struck when it states that the applicant ‘believes that the perpetrators were from [the

ruling party], but was unable to state with clarity whether this was the case or not.’ I have to confess that strikes me as a

remarkable observation. How was the first applicant, as a 15 year old rape victim, to establish with clarity that the perpetrators of

that rape, who were hardly likely to present her with their personal credentials, were from the ruling party?

29. Nor does the decision identify the statement or statements of the first applicant that demonstrate this asserted lack of clarity.

The earlier portion of the judgment dealing with the first applicant’s evidence does record (at para. 3.2):

‘The [first applicant] said that she was kidnapped in 2002, and she is scared that the people who took her then will take

her again. She said that she is scared of members of the war veterans and [the ruling party]. She said that she was not

clear on the reasons for the attack at that time. However, during the attack, her attackers kept asking her about her

mother and they said she should be a [ruling party] supporter.’

30. It is difficult to accept that the likely identity and motivation of the first applicant’s attackers falls to be assessed solely or

primarily by reference to her own level of political or situational understanding, as their 15 year old rape victim at the material time,

without regard to any, or any proper, consideration of the implications of the comments that she states those persons made in the

course of that crime.

31. Moreover, despite the unqualified obligation under Reg. 5(1)(b) of the 2006 Regulations to take into account the relevant

statements and documentation presented by the applicant(s), this part of the IPAT decision entirely neglects to address the

applicant’s handwritten statement in her ORAC questionnaire that:

‘They told me that I was a child of the soil and that [the ruling party] runs through my blood and that I should stop being

an [opposition party] puppet. They said I should be like my father who served his country faithfully before my mother

became his downfall. They told how lucky I was that they didn’t kill me but had raped me instead and that I should be

grateful because they were giving me a chance to redeem myself. They threatened to kill me if I reported to the police

because [the ruling party] is the law they would know and they would find me and that they had the power to do

anything to anyone and whenever they wanted to do so.’

32. Returning to the relevant sub-section of the IPAT decision, after an elliptical reference to the absence of any rape counselling

report as unfortunate, it concludes by stating:

‘The Tribunal can only rely upon the [first applicant’s] own evidence in this case. In circumstances where there is no

evidence to the contrary, the Tribunal is willing to give the [first applicant] the benefit of the doubt and accepts that the

[first applicant] was raped in 2002. While the [first applicant] believes that the perpetrators of this claim were [ruling

party] members, the Tribunal finds that it is not clear, based on the evidence before it, who the perpetrators of this crime

were.’

33. I fail to see the logic of those conclusions. If the [first applicant’s] unsupported assertion that she was raped in 2002 is to be

given the benefit of the doubt (borrowing the language of the UN Handbook, thereby implying without stating that the requirements of

Reg. 5(3) are being considered and applied), why is her unsupported assertion about the contemporaneous statements made by the

perpetrators of that crime ineligible for the same treatment? Since both the UN Handbook and the 2006 Regulations make clear that

the acceptance of an applicant’s general credibility is a condition precedent to the availability of the benefit of the doubt, how can

the applicant’s statements be given the benefit of the doubt only in part, certainly in the absence of any identified implausibility,

innate contradiction or countervailing evidence in respect of the parts being rejected?

34. It is important to acknowledge that, in the next sub-section of the IPAT decision, which deals with the applicant’s father, the

tribunal did identify what it considered to be a significant contradiction in the first applicant’s statements. In her ORAC questionnaire,

the first applicant had stated that her mother had persuaded her father to leave the ruling party, resulting in the brutal assault upon

him in his home by supporters of the ruling party that left him blind and crippled. However, when the presenting officer asked the first

applicant at the appeal hearing if her father was still a member of the ruling party when she had fled Zimbabwe, she had said that she

believed so. Moreover, it was also put to the first applicant that in the evidence that her mother gave as part of her asylum claim in

Canada, she had stated that her husband, the first applicant’s father, had gone blind as an adverse reaction to anti-malarial

medication.

35. The first applicant’s explanation was that she had only recently re-established contact with her mother for the first time since

their enforced separation in 2002 and had only then received a proper explanation of the relevant events that had occurred when she

was still a child (and to which, one assumes or hopes, she was not directly privy). The relevant sub-section of the IPAT decision

concludes with the tribunal’s observation that these contradictions undermine the first applicant’s credibility regarding that part of her

claim and her father’s history. This finding might imply the rejection of the first applicant’s general credibility. Certainly, there is no

suggestion of according the applicant the benefit of the doubt in respect of the explanation she had offered for those apparent

contradictions. Nor is the reasoning underpinning the rejection of that explanation disclosed. While it was plainly open in principle to

the tribunal to reach the relevant conclusion, an unsuccessful refugee status applicant should not have to attempt to deduce or infer

the reasoning or analysis behind the rejection of his or her evidence or explanations.

36. The IPAT decision accepts that the applicant’s mother left her father and subsequently fled Zimbabwe, obtaining refugee status in

Canada, although it could hardly have done otherwise in view of the supporting documentary evidence that the presenting officer not

only did not challenge but, ultimately, relied upon in seeking to test the first applicant’s statements.

37. The decision accepts that the first applicant fled to South Africa in 2002 and that the main reason that she did so was that she

had been raped. The decision accepts that she entered into a relationship with a criminal who was able to secure false identity

papers for each of the applicants and that this man was abusive to the first applicant before ending up in prison.

38. The IPAT decision accepts that the first applicant was employed by an office automation services provider in South Africa. It

accepts that she travelled twice to Harare in Zimbabwe for work purposes under her false South African identity without encountering

any problem. However, the decision then states:

‘The Tribunal, however, does not accept that the [first applicant] would have returned to Zimbabwe if she earnestly

believed that she would be persecuted on her return. The Tribunal finds that the [first applicant’s] return to Zimbabwe

significantly undermines the subjective part of her claim.’

39. While there is no doubt that such a finding was open to the tribunal in principle, the difficulty is that the decision fails to address,

much less reject in a reasoned way, the explanation that the applicant had provided for those two three-day trips, which explanation

is recorded in the summary of the first applicant’s evidence to the tribunal contained in an earlier part of the decision. That

explanation was that, while the first applicant was scared to travel, she did not have a choice because her employer was sending her

whole team on the trip and it was too late to confess to her employer that she was not really South African and, thus, had secured

employment under false pretences. Because she was travelling on South African identity papers and because Harare is an eight hour

car journey away from the part of Zimbabwe from which she had fled to South Africa, the first applicant took a calculated risk to go

on those trips.

40. It is also striking, that in reaching the finding that the two trips significantly undermined the first applicant’s subjective expression

of fear of persecution if returned to Zimbabwe, the IPAT decision fails to acknowledge, much less assess, the significance of the fact

that it was the first applicant, at her initial interview upon her arrival in the State, who voluntarily disclosed that they had occurred,

in circumstances where it is difficult to imagine how the immigration authorities might otherwise have become aware of them.

41. The next sub-section of the ‘analysis of credibility’ section of the IPAT decision deals with the attack on the first applicant’s

flatmate in South Africa in September 2014. It states:

‘The [first applicant] claims that her flatmate was attacked in South Africa. The [first applicant] was on a weekend away

with her children and she got a phone call to say that her flatmate was hospitalised. People broke into the house and

attacked her. They kept calling her [by the first applicant’s first name] and asking her about her mother. The [first

applicant] was unable to expand on this part of her story. She was not present, herself, as a witness to the attack and

there was no clear or coherent evidence before the Tribunal to suggest that this attack was, in fact, targeted at the

[first applicant]. The [first applicant] fled directly after this alleged attack and did not wait around to find out if the

perpetrators were caught nor did she wait to find out who the perpetrators were. While the [first applicant] may have a

theory regarding who was responsible for the alleged attack, there is no clear or coherent evidence before the Tribunal to

suggest that this was orchestrated by the [first applicant’s] ex-boyfriend or by [the ruling party in Zimbabwe]. In the

circumstances, the Tribunal does not accept that the [first applicant] was meant to be the target of this attack.’

42. Once again, I am afraid that I fail to see the logic of those conclusions. The assertion that the first applicant’s flatmate was

attacked in the house they shared and the assertion that her attackers addressed their victim by the first applicant’s name and made

several derogatory references to a person they described as ‘your mother’ are each based solely on the unsupported statements of

the first applicant. If the general credibility of the first applicant is accepted, then each of those statements should be accepted

without the need for confirmation, unless at least one of the other necessary conditions under Reg. 5(3) is absent, which – if that is

so – should be clearly stated. If the general credibility of the first applicant was not accepted (as the respondents assert in their

written legal submissions was the case, albeit without explaining where that is stated or how it might be inferred), then on what basis

was it accepted that the attack on the first applicant’s flatmate did take place? How is one of the unsupported statements of the

first applicant more credible than the other, in the absence of the identification of any innate implausibility, apparent internal

contradiction or countervailing evidence in respect of either?

43. Or, since the relevant conclusion, though set out in the analysis of credibility section of the decision, adopts instead the language

of adjudication on the merits of the claim (‘no clear or coherent evidence’, rather than ‘no credible evidence’), on what basis was it

concluded that the relevant statement of the first applicant did not constitute clear or coherent evidence? No reason for that

conclusion is provided, and neither the applicants nor the court should be expected to intuit or infer one. Is it seriously being

suggested that the uncontroverted evidence of the first applicant that her flatmate’s attackers had addressed her flatmate by the

first applicant’s name while making derogatory references to her about ‘your mother’ was insufficient to establish, on the balance of

probabilities, that the intended victim of the attack was indeed the first applicant? We cannot know and cannot be expected to

guess.

44. The final sub-section sets out the tribunal’s conclusion at the culmination of the ‘analysis of credibility’ part of the IPAT decision.

It states:

‘The Tribunal accepts that the [first applicant] fled Zimbabwe in 2002, having been the victim of rape. It is accepted that

the [first applicant] set up a new life in South Africa with a fraudster boyfriend, who fathered her three children. It is also

accepted that this man was abusive and violent and, ultimately, ended up in jail. The Tribunal accepts that the [first

applicant’s] mother fled in 2002. The Tribunal accepts that the [first applicant] set herself up with a job in [a business

automation services company] in South Africa and that she returned to Zimbabwe on two occasions. Finally, the Tribunal

does not accept that there is clear or coherent evidence to suggest that the attack on the [first applicant’s] friend was

meant for her.’

45. These are not conclusions on the credibility of the first applicant’s unsupported statements. They are simply purported findings of

fact, accepting some of the applicant’s unsupported statements and rejecting others without reason or analysis either way.

46. Here it is convenient to consider the extensive survey of the law on the assessment of the credibility of statements made by

refugee status applicants conducted by Cooke J in IR v Minister for Justice, Equality and Law Reform and Anor [2009] IEHC 353

(Unreported, High Court, 24th July 2009). Having referred to the mandatory checklist of thirteen particular matters to be considered in

assessing credibility that are prescribed under s. 11B of the Refugee Act, and which – it seems to be common case – are of no

particular relevance here, and having then gone on to refer to what Cooke J described as the ‘more pedagogic requirements’ of Reg. 5

of the 2006 Regulations, the judgment next recites (at para. 10) a list of relevant cases that had been opened in argument, before

distilling from them ten principles that emerge as a guide to the manner in which evidence going to credibility ought to be treated and

the manner in which any review of a decision-maker’s conclusions on credibility should be carried out. Those ten principles are often

now referred to as ‘the IR principles’.

47. The IR principles of most obvious relevance to the present review of the decision maker’s conclusions on credibility are the

following. First, it is not the function of this court to express any view on the credibility of the first applicant’s statements. Second,

the question I must ask is whether the process by which the first applicant’s credibility was assessed was legally sound and not

vitiated by any material error of law, infringement of any applicable statutory provision or of any principle of natural or constitutional

justice. Third, the IPAT decision on credibility must be read as a whole and I should be wary of attempts to deconstruct an overall

conclusion by subjecting its individual parts to isolated examination in disregard of the cumulative impression made upon the decision-

maker especially where the conclusion takes particular account of the demeanour and reaction of an applicant when testifying in

person.

48. It is only necessary to add that, as the Court of Appeal pointed out in NM (DRC) v. Minister for Justice and Equality [2016] IECA

217, [2016] 2 I.L.R.M. 369, 395, the effective remedy requirement of Article 39 of the Procedures Directive ( Council Directive

2005/85/EC) as interpreted by the Court of Justice in Case C-69/10 Diouf EU:C:2011: 524:

‘….imposes only one - albeit, critical - requirement, namely, that the remedy in question must remain an effective one. As

Diouf itself makes clear, this means that the supervisory jurisdiction of the High Court must be ample enough to ensure

that ‘the reasons which led the competent authority to reject the application for asylum as unfounded… may be the

subject of a thorough review by the national court.’

49. For present purposes, the relevant principles governing the manner in which the tribunal was obliged to assess the first applicant’s

credibility are the following.

50. First, the obligation on the tribunal was to assess credibility by reference to the full picture that emerged from the available

evidence and information taken as a whole, when rationally analysed and fairly weighed.

51. Second, that assessment was not to be based on a perceived, correct instinct or gut feeling as to whether the truth was being

told or not.

52. Third, any finding by the tribunal of lack of credibility had to be based on correct facts, untainted by conjecture or speculation,

and the reasons drawn from those facts had to be cogent and bear a legitimate connection to the adverse finding.

53. Fourth, the reasons given for a finding on credibility had to relate to the substantive basis of the claim made and not to minor

matters or to facts which were merely incidental in the account given.

54. Fifth, where an adverse finding involved discounting or rejecting documentary evidence or information relied upon in support of a

claim and which was prima facie relevant to a fact or event pertinent to a material aspect of the credibility issue, the reasons for that

rejection should be stated.

55. And sixth, while there is no general obligation to refer to every item of evidence and to every argument advanced, the reasons

stated must enable the applicant as addressee, and the Court in exercise of its judicial review function, to understand the

substantive basis for the conclusion on credibility and the process of analysis or evaluation by which it has been reached.

ii. conclusion on the assessment of facts and circumstances and the issue of credibility

56. I have come to the conclusion that the section of the IPAT decision headed ‘Analysis of Credibility’ amounts to little more than a

bare recital of those unsupported statements of the first applicant that the tribunal accepts and those that it does not, devoid of any

significant reasoning or analysis to support its positive and, more particularly, negative findings. Nor does the IPAT decision make any

attempt to identify, much less apply, an overall approach to the assessment of the first applicant’s credibility, whether in accordance

with the requirements of Reg. 5(3) of the 2006 Regulations or with the IR principles.

57. The last of the IR principles set out above is by itself dispositive of this case because, in the circumstances I have described, I

conclude that the tribunal failed to reach any clear or obvious conclusion on credibility and, even if I am wrong about that, it is clear

that it did not provide any reasons that would allow either the applicants to whom it was addressed or this court in the exercise of its

judicial review function to understand the substantive basis for any possible conclusion there may have been on credibility or the

process of evaluation by which it was reached. Thus, the decision cannot stand.

iii. reasonableness

58. For precisely the same reasons, I am satisfied that the applicants have discharged the onus of proof upon them to satisfy me that

the decision fails the test of rationality or reasonableness, as authoritatively restated by the Supreme Court in Meadows v Minister

for Justice, Equality and Law Reform and Ors [2010] IESC 3, [2010] 2 IR 701, because of the manner in which the tribunal accepted

the credibility of some parts of the applicant’s unsupported statements, while rejecting others, without reference to any rational

analysis or cogent reasoning in either case, beyond the bare assertion that the rejected parts did not amount to ‘clear and coherent

evidence’, without ever explaining what was unclear about them or incoherent in them.

iv. remaining arguments

59. In the circumstances, it is unnecessary to address the applicants’ third and fourth arguments (i.e. that the IPAT decision fails to

properly apply the rider, or final clause, in Reg. 5(2) of the 2006 Regulations and that it fails to take proper account of the relevant

country of origin information in accordance with Reg. 5(1) of the 2006 Regulations), and I do not propose to do so.

Conclusion

60. I will grant an order of certiorari quashing the IPAT decision and will remit the applicants’ appeal against the refusal of a

recommendation that they be granted a declaration of refugee status to the International Protection Appeals Tribunal for a fresh

determination.