R. & Anor -v- MJELR & Ors, [2009] IEHC 279 (2009)

Docket Number:2008 1418 JR
Party Name:R. & Anor, MJELR & Ors
Judge:Clark J.







  1. The applicants, who are married, are nationals of Sri Lanka. The husband lives in Ireland and the wife lives in Sri Lanka. This is their application for judicial review of the refusal of the Minister for Justice, Equality and Law Reform ("the Minister") to grant to the wife who is the first named applicant a visa to travel to Ireland to join her husband who has leave to remain temporarily in Ireland. They are seeking an order of certiorari quashing that refusal and an order of mandamus ordering the Minister to determine the application for a visa. On 15th December, 2008, Peart J. granted leave ex parte on the grounds set out at paragraph E of the Statement of Grounds. The substantive hearing took place at the King's Inns, Court No. 1, on 13th May, 2009. Ms. Karen O'Driscoll S.C. and Mr. Michael McGrath B.L. appeared for the applicants and Ms. Emily Farrell B.L. appeared for the respondents.

    Immigration History of the Second Named Applicant

  2. The second named applicant arrived in the State in April, 2002 and applied for a declaration of refugee status. He claimed that he was being pursued by the police in Sri Lanka owing to his alleged involvement in a number of politically motivated murders that took place at a polling station during parliamentary elections in December, 2001. A negative recommendation issued from the Office of the Refugee Applications Commissioner (ORAC) which was affirmed on appeal to the Refugee Appeals Tribunal (RAT). The Tribunal Member noted that the appellant had submitted identification and membership cards, notices, wanted posters and newspaper articles about the elections, some of which identified the applicant personally. Referring to the documentation, the Tribunal Member stated:-

    Because the Applicant has gone to lengths to help his case in this regard and because he has given a consistent and coherent account of the events that occurred to him in Sri Lanka, I am prepared to accept his credibility in all the circumstances, and to thereby allow him the benefit of the doubt with regard to the information provided by him.

  3. The Tribunal Member went on to address the concept of persecution. He found that the documentation did not indicate that the applicant was guilty of the murders or that he had been prejudged by the police. He noted that a comprehensive investigation appears to have been carried out and that country of origin information (COI) indicates that a former Defence Minister in Sri Lanka, an associate of the applicant, had presented himself to the police although originally under suspicion. The applicant however had left Sri Lanka immediately after he discovered he was under suspicion. The Tribunal Member stated that it was not unreasonable in the circumstances that the authorities would want to question the applicant. He concluded that:-

    "The Applicant has failed to provide any objective documentation or evidence in support of his contention that the reason the authorities are seeking him is politically motivated or might amount to a malicious prosecution."

  4. The Tribunal Member confirmed that he had no reason to doubt that the appellant was not involved in the massacre at the polling station and he said that the applicant should therefore have no reason to fear anything from a police investigation, especially since COI indicates that a "wholesome" investigation was carried out. He concluded that it had not been established that he comes within s. 2 of the Refugee Act 1996. The applicant was refused a declaration of refugee status in October, 2003.

  5. These findings are important as will subsequently emerge. After the failure to be declared a refugee the second named applicant made an application for leave to remain temporarily in the State. In his grounding affidavit the applicant says he was granted humanitarian leave to remain in the State on the 16th October, 2003 - no reference is made elsewhere in the documentation to this decision. The remainder of the documents (including the documentation submitted by the applicants' solicitors in support of the visa application) indicate that in April, 2007 he was granted leave to remain for one year. The examination of the applicant's file leading to the decision to grant leave to remain is not before the Court and it is therefore unclear for what reason that decision was made, if at all. The following month, following the coming into force of the European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006), he was one of the many who were invited to make an application for subsidiary protection with no implications for his permission to remain, but no such application was made. His permission to remain was extended in May, 2008 for a period of three months, then a further three months and then for a further year to November, 2009.

    The Visa Application

  6. In 2007 the second named applicant returned to Sri Lanka for a period of approximately three months. In his grounding affidavit he says the journey was undertaken to visit his mother who was dying, that he bribed immigration officers in Sri Lanka so that they would not record his presence in the country and he also paid bribes to policemen he met so that they would not seek payment from the family and friends of the murdered people to disclose his whereabouts. A "medical certificate" compiled by a physician in "Gamage Hospital" located in Mawanella, Sri Lanka is before the Court. It is written in English and refers more particularly to the second named applicant than to his mother. Under "name of patient" is written "Mrs F.U., 72 y (mother of B.A. living in Iyarland [sic])". The diagnosis is that she suffered a "cerebro vascular accident (CVA)" and was "taking inward treatment". The...

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