AA v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 08 November 2016
• Neutral Citation: [2016] IEHC 763
• Docket Number: [2015 No. 148 JR]
• Court: High Court
• Date: 08 November 2016

[2016] IEHC 763

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2015 No. 148 JR]

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, (AS AMENDED)

BETWEEN

A.A.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – Illegal Immigrants (Trafficking) Act, 2000 – S. 2(3) of the Immigration Act 2004 – Revocation of deportation order – Certiorari – Adverse credibility findings by the Refugee Appeals Tribunal

Facts: -The applicant sought an order of certiorari for quashing the decision of the respondent for refusing to revoke a deportation order issued against the applicant. The applicant contended that the respondent had made an error by accepting the conclusions drawn by the Refugee Appeals Tribunal (RAT) concerning the nationality of the applicant based on the information provided by the UK Border Agency. The respondent contended that under s. 2(3) of the Immigration Act 2004, the applicant had to discharge the burden of proof regarding his nationality, which he failed to do so.

Ms. Justice O'Regan refused to grant the desired relief to the applicant. The Court found that there was no finding by the respondent that the applicant was a national of a particular country; rather the respondent just stated that the applicant was in possession of a valid passport of a particular country. The Court found that there was nothing wrong in placing reliance on the reports of the UK Border Agency as the same was never challenged by the applicant. The Court held that the applicant's contention that he was a speaker of the local language of the region to which he alleged to belong had never been raised by the applicant before any of the prior decision makers and hence, that contention could not be raised in the judicial review proceedings.

JUDGMENT of Ms. Justice O'Regan delivered on the 8th day of November, 2016

Introduction

1 The within matter came before the Court on 20th October, 2016 by way of application for certiorari for judicial review to quash the decision of the respondent to issue a deportation order against the applicant on 29th January, 2015 and notified by letter dated 12th February, 2015.

2 Leave was afforded on 27th April, 2015 to the applicant to bring the within application.

3 The application is based upon the statement required to ground the application for judicial review and the affidavit of the applicant together with the exhibits therein, respectively dated 16th March, 2015. The application is resisted by the respondent based upon the respondent's statement of opposition of 3rd February, 2016 and the affidavit of verification of James Boyle of 1st February, 2016.

Background

4 The applicant claims to have been born in April, 1986 in Somalia. He claims that he is a national of Somalia, a Muslim and a member of the Baguni tribe. The applicant claims to have arrived in Ireland on 14th November, 2011 and made an application for asylum on 15th November, 2011. His claim for asylum was initially based upon his assertion that he left Somalia and went to Kenya and made his way from there to Ireland. He claimed in his questionnaire and during the s. 8 interview that he did not have a passport or a visa. During an interview with the RAC it was put to him that information had been obtained from the British authorities which showed that his fingerprints had matched ones held by them in respect of a Tanzanian national with a different name and date of birth – K.S.S., allegedly born in March, 1985. The applicant denied all knowledge of such match.

5 The applicant did not provide any documentation in support of his application nor state any reason in respect of such lack of documentation in his initial application for asylum.

6 The applicant subsequently stated that when in Koyama he experienced persecution at the hands of unknown groups and in 2009 his parents had been murdered. He claimed immediately thereafter that he travelled to Uganda and then on to Kenya and then onto the UK.

7 The statement of grounds suggests that his application for asylum was rejected and he asserts that the principal basis was on the grounds of credibility arising from the fact that he had provided false information about his travel to Ireland and failed to disclose that in fact he had applied for a UK visa. The grounds upon which the application for judicial review is based is set out at para. 10 of the statement of 16th March, 2015 and although five grounds are set out, only four are relevant now (the fifth ground referring to an extension of time within which to challenge the decision of the respondent). These grounds might be summarised as that the respondent acted unlawfully and/or ultra vires in:

1. A determination that the applicant is a national of Tanzania,

2. By endorsing the conclusion of the RAT that the information provided by the UK Border Agency amounted to irrefutable and incontrovertible evidence,

3. By failing to confirm the applicant's nationality with the Tanzanian authorities or conduct an independent inquiry that the applicant is a Tanzanian national,

4. The respondent failed to consider representations submitted by the applicant including country of origin information.

8 In its statement of opposition the respondent denies that it made a determination that the applicant was a national of Tanzania but rather treated him as holding a Tanzanian passport. The respondent denies that adopting the reasons of the RAT or by referring to them in the case of the s. 3 analysis that the respondent had acted unlawfully and it is further asserted that as the applicant did not challenge the decision of the Tribunal such a decision is valid and the applicant is not entitled to mount a collateral challenge to them. The respondent denied in the circumstances that it was necessary for the respondent to confirm the applicant's nationality with the Tanzanian authorities or to conduct independent enquiries before treating him as the holder of a Tanzanian passport or that by treating him as a holder of a Tanzanian passport the respondent acted unlawfully. The respondent denies that it failed to consider representations submitted by the applicant or that the applicant is entitled to an extension of time or that the applicant is entitled to the relief sought. It is specifically pleaded that country of origin information showed that Baguni was not spoken in Somalia only or that the applicant adduced any evidence to support his claim and the respondent asserts that the deportation order was lawfully made and its validity should be upheld.

9 In the affidavit of verification of James Boyle, at para. 7 it is stated that during the course of an appeal to the Refugee Appeals Tribunal against the negative recommendation of the Commissioner the applicant admitted having given misleading evidence to the Commissioner. The RAT upheld the Commissioner's recommendation and notified his decision to the applicant by letter of 27th April, 2012. Mr. Boyle refers to para. 16 of the applicant's grounding affidavit in which he was advised to challenge the decision of the Tribunal but did not do so as he was unaware of the legal system at the time and did not believe he could afford the services of a private solicitor. Mr. Boyle points to the fact that the applicant has not identified the person who gave him such advice or what, if any, steps the applicant took to secure a private solicitor.

10 At para. 9 of the grounding affidavit of the applicant, the applicant states that he deeply regrets having misled the authorities about how he came to arrive in Ireland but he was afraid he would be deported if he told them that he had been in the United Kingdom. He confirmed that the passport that he used to travel to the United Kingdom was not his own.

11 Having admitted misleading the authorities, the applicant in his grounding affidavit of 16th March, 2015 for this Court at para. 6 now states that ‘in or around 2009’ he arrived home from school to find his parents had been murdered.

12 At para. 17 the applicant deposes to the fact that following the issue of the letter proposing to deport him in or around the 24th May, 2012 he submitted a humanitarian leave application on 5th February, 2013 ‘but failed to submit an application for subsidiary protection. I say that I follow the advice of the RLS and I acted when they called me to make the application.’

13 The above averment is contradicted in fact by one of the applicant's exhibits namely a letter from the Refugee Visa Services of the 18th March, 2016 when they state as follows:-

‘Please note that there is no record on file of an application for subsidiary protection having been made from this office. Client failed to attend a consultation arranged for taking of instructions. He indicated later that he would make his own application.’

14 Following the letter from the Minister of 24th May, 2012 advising the applicant of the options available to him given that the Refugee Appeals Tribunal rejected his claim for refugee status on the 24th April, 2012, the applicant made a s. 3 application under cover letter from three refugee legal services of 5th February, 2013 wherein it is stated:-

‘We are now enclosing on behalf of our client an application for leave to remain in the state pursuant to s. 3 in Immigration Act 1999. The document is enclosed on the understanding that all documents and other information submitted in the context of the asylum application, including country of origin information, are available to you.’

15 In my view it is noteworthy that the applicant did not raise in his s. 3 application any difficulty which he encountered with the findings of the Commissioner or the Refugee Appeals Tribunal. For example, he did not in any manner refer to the fact that he spoke Bajuni, which was central to all of his applications. Nor did...