Abdi Jama Hassan v Safiya Saeed and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 20 February 2013
• Neutral Citation: [2013] IESC 8
• Court: Supreme Court
• Date: 20 February 2013

[2013] IESC 8

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

Clarke J.

Appeal No: 441/2010

Hassan & Saeed v Min for Justice

Between/

ABDI JAMA HASSAN

&

SAFIYA SAEED

Applicants/Respondents

-and-

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM

Respondent/Appellant

HAMZA & ANOR v MIN FOR JUSTICE UNREP COOKE 25.11.2010 2010/22/5576 2010 IEHC 427

REFUGEE ACT 1996 S18

FAMILY LAW ACT 1995 S29

REFUGEE ACT 1996 S18(3)(B)

CONLAN v MOHAMMAD 1987 ILRM 172

OXFORD ENGLISH DICTIONARY 2ED VOL.9

DICEY MORRIS & COLLIN CONFLICTS OF LAW 14ED 2006 P806

FAMILY LAW ACT 1995 S29

USSHER v USSHER 1912 2 IR 445

RAYDEN & JACKSON DIVORCE & FAMILY MATTERS 16ED LONDON 1991 P159

WOLFENDEN v WOLFENDEN 1945 2 AER 539

PENHAS v ENG 1953 AC 304

Judicial Review - Asylum - Deportation - Country of origin information - Assessment of future risk of serious harm - Protection from serious harm - Credibility - Order of certiorari - Consideration of relevant documents

Facts: The applicant was originally from Somalia. He applied for asylum upon entering Ireland on 10th April 2003. He was given refugee status by a letter dated 6th July 2004. On the 22nd November 2005, the applicant applied pursuant to s. 18 of the Refugee Act 1996 for a visa in respect of a person he claimed to be his wife so that they could be reunited with him in Ireland. He asserted his marriage to his alleged wife, Ms. Saaed, was religious but failed to provide evidence of a religious certificate which he explained was because of his inability to obtain the document due to the ongoing conflict in Somalia. His application was refused on the 22 ^nd July 2008 on this basis.

The applicant eventually submitted what he described as a marriage certificate that he had obtained from the Soamalian embassy in Addis Ababa and asked for a review of the decision. On the 4 ^th June 2009, the applicant was informed that the case had been reviewed but the decision to refuse was upheld, this time on the basis that his Islamic religious marriage was not recognised in Irish law. The applicant sought judicial review on the basis that an Islamic marriage in Somalia should be regarded as valid in Irish law. Leave was granted and at hearing the decision of the respondent was quashed on the basis that the assertion that his religious marriage couldn”t be recognised under Irish law was mistaken and that no consideration was given to the explanation he provided for been unable to provide the marriage certificate. The respondent appealed this decision.

Held by Fennelly J (with Denham C.J., Murray J., Hardiman J., and Clarke J. concurring) that Irish law would accept a marriage held in a foreign jurisdiction as valid where it complied with the requirements of that jurisdiction and as long as it did not conflict with Irish formalities.

The applicant and his wife claimed they had been married in an Islamic religious ceremony which complied with the requirements of Somalia to be validly registered but they were unable to provide the original marriage certificate. Due to the ongoing conflict in Somalia, it was accepted that this was very difficult to obtain. It was for the respondent to consider all the circumstances in deciding whether a marriage ceremony had taken place including any reason given for an inability to produce a marriage certificate, something the respondent had clearly not taken into account.

As a result, the appeal was dismissed on the basis that that the respondent was not entitled to refuse the application on the ground that the ceremony was a religious type that was not recognised as valid in Ireland. It was also held that the respondent had failed to take into account all the factors in deciding whether a religious ceremony had taken place.

Appeal dismissed.

1 JUDGMENT of Mr. Justice Fennelly delivered the 20th day of February 2013.

2 Concurring observations of Murray J.

3 1. This is the second of two appeals (respectively Hamza and another v Minister for Justice Equality and Law Reform and the above Hassan and another v Minister for Justice Equality and Law Reform). Each appeal has been taken from a judgment delivered in the High Court on 25 ^th November 2010. In each case, the applicant, a person declared to be a refugee, had applied to the Minister pursuant to s. 18 of the Refugee Act 1996 for family reunification with his spouse as well as some other family members. This case, like that of Hamza, concerns only an application in respect of the spouse. In each case the Minister refused the application.

4 2. In the Hamza case, the refusal was principally on the basis that the marriage had been "by proxy." In the present case, it was principally on the basis that the marriage was "religious."

5 3. Each decision of refusal was the subject of an application for judicial review. In each case, the High Court (Cooke J.) granted an order of certiorari. The Minister has appealed both decisions of Cooke J.

6 4. This appeal concerns the application of the first-named respondent (hereinafter "Mr. Hassan") in respect of the second-named respondent (hereinafter "Ms. Saeed"), to whom he says he is married.

7 5. The terms of s. 18 of the Refugee Act 1996 are set out in my judgment on the case of Hamza and another v Minister for Justice Equality and Law Reform and need not be repeated here. I will, however, quote here the summary provided by Cooke J. of the function of the Minister under the section, with which I agree. It is as follows:

"In that section, the Oireachtas has designated the Minister as the sole authority to decide whether permission should be granted or refused under subsection (3). It is to the Minister that the application for permission is made under subsection (I) and it is the Minister alone who must be satisfied that the person the subject of the application is a member of the family of the refugee" under subsection (3) (a). It is envisaged by the provision that he will do so on the basis of the report furnished by the Office of the RAC under subs. (2) which has "set out the relationship between the refugee concerned and the person the subject matter of the application". The Minister cannot delegate to any third party, therefore, (including a Circuit Judge) the decision he is required to make under subs. (3)(a), namely, that the person comes within the definition of a family member or, in a case such as the present, that the person concerned and the refugee are parties to a subsisting marriage."

8 6. In short, the Minister must decide whether the person whom the applicant designates as his spouse in his application for family reunification is, in fact, his spouse. In the present case, Mr. Hassan claims that he was married to Ms. Saeed in Somalia on 5 ^th December 1998.

The facts

9 7. Mr. Hassan is a national of Somalia, born on 5 ^th October 1975. He came to Ireland and applied for refugee status on 10 ^th April 2003. By a letter dated 6 ^th July 2004, the Minister declared him to be a refugee.

10 8. On 22 ^nd November 2005, Mr. Hassan applied, pursuant to s. 18 of the Act of 1996 for a visa so that Ms. Saeed, who he says is his wife, could enter and reside in the State. He made a similar application in respect of a niece and a nephew. The application was duly acknowledged and referred, in accordance with the provisions of the section, to the Refugee Applications Commissioner ("ORAC"), for investigation as required by the Act. Mr. Hassan completed a standard questionnaire as required by ORAC.

11 9. Mr. Hassan provided answers in relation to his marriage to Ms. Saeed. He said that she was of Somalian nationality, that her place of birth was Mogadishu, which was also her current address. One question asked whether the marriage was Legal, Religious or Traditional with the indication: "please tick all that apply." Mr. Hassan ticked only the box opposite "Religious." He answered "no" to the question whether the marriage had taken place by proxy and to the question as to whether it was a polygamous marriage. However, in response to the requirement that he provide evidence in the form of a civil or religious certificate, Mr. Hassan provided no documentary evidence. In reply to a letter from ORAC relating to family documentation generally, Mr. Hassan wrote to say that he was not in a position to provide documents on account of the on-going conflict in Somalia. ORAC in its report to the Minister on 22 ^nd August 2006 stated:

"Mr. Hassan states that he. married his wife on 5/12/98 and were married [sic] in a religious ceremony in Somalia. The refugee has not provided documentation to attest to his relationship with his wife nor to her identity or nationality. He has submitted passport type pictures of the person he states is his wife. In a written submission he states he does not possess original documents due to the on-going difficulties in Somalia."

12 The information in relation to his wife during his FR application is entirely consistent with that submitted during his asylum process."

13 10. The FRS on behalf of the Minister made an initial decision refusing the application by letter dated the 22 ^nd July 2008, stating: "You have provided insufficient documentary evidence in support of Ms Safiya Saeed."

14 11. Mr. Hassan's solicitors wrote on 6 ^th April 2009, seeking a review of the decision. They argued that the explanation for the absence of documentation in 2006 was "both reasonable and acceptable." On 28 ^th April 2009, the FRS wrote upholding the original decision and repeating that no documentary evidence of the marriage had been received. On 28 ^th May 2009, the solicitors wrote contesting the decision. The letter enclosed what it described as an original marriage certificate. This brief form of certificate in...