A.A.R v Minister for Justice, Equality & Law Reform
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] IEHC 32 |
| Court | High Court |
| Date | 22 January 2015 |
[2015] IEHC 32
THE HIGH COURT
BETWEEN
RSC O.40 r14
SALEEM v MIN FOR JUSTICE 2011 2 IR 386
REFUGEE ACT 1996 S8
REFUGEE ACT 1996 S13
REFUGEE ACT 1996 S16(2)(A)
REFUGEE ACT 1996 S2
REFUGEE ACT 1996 S16(2)
IMMIGRATION ACT 1999 S3
D v UNITED KINGDOM 1997 24 EHRR 423
EUROPEAN COMMUNITIES ELIGIBILITY FOR PROTECTION REGULATIONS 2006 SI 518/2006 REG 4(5)
IMMIGRATION ACT 1999 S3(6)
O (O) & O (B)(A MINOR) v MIN FOR JUSTICE & ORS UNREP COOKE 16.3.2011 2011 IEHC 165 2011/43/12268
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3
CONSTITUTION ART 40.3.2
N v UNITED KINGDOM 2008 47 EHRR 39
AIREY v IRELAND 9.10.1979 1980 EHRR 305
SOERING v UNITED KINGDOM 1989 11 EHRR 439
MAKUMBI v MIN FOR JUSTICE 2008 4 IR 417 2005/38/7916 2009/38/9325 2005 IEHC 403
O (M E)[NIGERIA] v MIN FOR JUSTICE UNREP COOKE 5.9.2012 2012/36/10661 2012 IEHC 394
CONSTITUTION ART 40.3.2 PARA 27
Extension of Time – Judicial Review – Deportation Order – Refugee Act 1996 – Fair Procedures – Human Rights – Refugee – Well-Founded Fear of Persecution – Minister for Justice Equality and Law Reform
Facts: In this case the applicant, a member of the Bajuni ethnic group claimed that he fled Somalia with his brother due to persecution by an Islamist militia group fighting the then government. The applicant sought to challenge the decision of the Minister for Justice, Equality and Law Reform that he having not been declared a refugee was also not a person eligible for subsidiary protection and that he be removed from the State. It was submitted on behalf of the applicant that the respondent had breached the principles of audi alteram partem and did not operate fair procedures in this case. It was further submitted that the respondent had: (1) failed to address relevant considerations and/or considered irrelevant considerations; (2) failed to consider the submissions made by the applicants on the issue of whether a UK visa could be issued in Tanzania for a person such as the applicant using a false passport; (3) it was alleged that the finding that the applicant was certainly Tanzanian on the basis of the UK visa application only when there was no further information to suggest he was Tanzanian, when the language he speaks indicated otherwise, was unreasonable; (4) the application for subsidiary protection was considered at the same time as the application for leave to remain/deportation; (5) that relevant country of origin information was not considered; (6) that the respondent failed to considered essential medical reports in making the deportation order; and (7) that the respondent failed to consider adequately, or at all, whether deportation would violate the applicant”s right to life and his right to protection against inhuman and degrading treatment.
Held by Justice Steward in the light of the available evidence and submissions presented that she was satisfied there were good and sufficient reasons to extend the time within which to bring the proceedings at the commencement of the hearing before the Court. In addressing the submissions made it was reasoned that the allegation of the breach of the principle of audi alteram partem and the lack of fair procedures did not form part of the case. It was further determined that the respondent was entitled to arrive at the conclusion and decision which he so did on the 10th and 26th January, 2011, and that he did so having undertaken a thorough examination, as was set out clearly in the examination of file. According to Justice Steward, the file set out extensively the basis on which the applicant”s claims were considered, which, having been reviewed as per inter-departmental procedures and annotated in handwriting by officers operating at different levels within the Department, was ultimately stamped and approved by the Minister, and the deportation order signed in person by the Minister. In the opinion of the Court, having considered the subsidiary protection decision and the examination of file, all matters were properly and carefully considered by all relevant officials, and ultimately by the Minister, prior to the making of the deportation order on the 26th January, 2011. The respondent made the decision based on the information before it at the time the decision was taken and was entitled to do so. Consequently, the Court refused the leave sought.
JUDGMENT of Ms. Justice Stewart delivered on the 22nd day of January, 2015
1. A preliminary issue arose at the outset of the hearing with regard to an extension of time within which the applicant sought to commence the judicial review leave application.
2. The applicant states that he was served with a deportation order on the 3 rd February, 2011. The applicant then contacted the Refugee Legal Services (RLS) within the allowed time and moved to a private solicitor with a view to challenging the decision by the 10 th February, 2011. The file was sent to a barrister on the 10 th February and papers were returned on the 18 th February. The delay was not inordinate and in any event counsel on behalf of the respondent indicated that no issue and/or objection was being taken to the extension of time, so in those circumstances I am satisfied there were good and sufficient reasons to extend the time within which to bring the proceedings at the commencement of the hearing before this Court.
3. A second preliminary issue arose which was raised in the respondent's written submissions and which related to the reliability and/or admissibility of the applicant's grounding affidavit. This arose in circumstances where the applicant had stated on official forms that he did not speak English at the time he entered the country on the 16 th June, 2008. In those circumstances a query arose in relation to the applicability of O. 40, r.14 (Rules of the Superior Courts) and the requirement according to that rule as follows:
"All persons taking affidavits shall certify, in the jurat of every affidavit taken by them either that they know the deponent himself, or some person named in the jurat who certifies his knowledge of the deponent. Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature or mark in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the deponent."
The provision of this order was considered by Mr. Justice Cooke in Saleem v. Minister for Justice, Equality & Law Reform [2011] IEHC 223, where he stated at paras. 33-34:
"The court has not been informed whether the applicant can read and write any language other than English, but it is clear that he is illiterate so as far as concerns an affidavit in the English language. On that basis alone, the requirement of 0. 40, r.14 applied in this case and the jurat should have contained an appropriate certificate. That not having been done, the affidavit could not be used unless the court was satisfied that it had been read over and "perfectly understood" by the applicant. Obviously, this court could not be so satisfied given the applicant's admission that the affidavit contained an incorrect statement which he did not understand to be there."
Secondly, as the applicant appears to have little or no understanding of English, this was not a case in which the affidavit should in any event have been sworn in the English language. The correct approach is that the affidavit should be sworn originally by the applicant in the language he speaks. This should be translated by an appropriately qualified translator and both the original and the certified translation should be put in evidence as exhibits to an affidavit in English sworn by the translator."
Mr. Justice Cooke further stressed the responsibility of the solicitor or commissioner of oaths administering an oath for the purpose of taking an affidavit. He stated at para. 35 as follows:
"In the view of this court, a solicitor or Commissioner for Oaths administering an oath for the purpose of taking an affidavit owes a duty to the court to be satisfied that the deponent is competent to make the affidavit in English. Such a duty is inherent in the nature of the function being performed and the authority conferred by law on such officers to administer an oath for that purpose. If the deponent is illiterate the procedure of O. 40, r.14 must be followed and if the deponent does not speak English the affidavit must be sworn first in the foreign language."
4. This case had been listed for hearing in May, 2014, but was not reached. The submissions on behalf of the respondent were dated 5 th May, 2014, and at that juncture it appeared no explanation had been given as to why the grounding affidavit was sworn in English. On the 7 th May, 2014, an affidavit of Ángel Bello Cortés, the applicant's instructing solicitor from Messrs. KOD Lyons Solicitors, was sworn. On 5 th November, 2014 a further affidavit, sworn by Ángel Bello Cortés, attempts to address the question of the applicant's command of the English language. At para. 4 of the affidavit he states as follows:
"I say that I was retained by the Applicant herein on or around the 3 rd February 2011, approximately 2 years and 8 months after his arrival in the State. I say that I have been satisfied at...
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