Gashi v The Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 01 December 2010
• Neutral Citation: [2010] IEHC 436
• Docket Number: [No. 89 MCA/2010]
• Court: High Court
• Date: 01 December 2010

Gashi v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

IN THE MATTER OF SECTION 21(5) OF THE REFUGEE ACT 1996

(AS AMENDED)

BETWEEN

ILIRJAN GASHI

APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2010] IEHC 436

[No. 89 MCA/2010]

THE HIGH COURT

IMMIGRATION

Asylum

Appeal - Revocation of status - Material particular - Whether false or misleading - Non disclosure of UK asylum application - Whether court must be satisfied that false or misleading information decisive to grant of application for asylum - Refugee Act 1996 (No 17), s 21 - European Communities (Eligibility for Protection) Regulations (SI 518/2006) - Appeal refused; decision to revoke asylum status confirmed (2010/89MCA - Cooke J - 12/1/2010) [2010] IEHC 436

Gashi v Minister for Justice, Equality and Law Reform

Facts The appellant appealed against the decision of the respondent revoking the declaration of refugee status granted to him by the Refugee Appeals Tribunal. The respondent made the aforementioned decision following the receipt of information from the UK Border Agency to the effect that the appellant had applied at the British Embassy for a UK visa and his fingerprints matched an Albanian national in their records. The declaration of refugee status had been granted on the basis that the appellant was a national of Kosova who was at risk of persecution as someone who had refused to join the Kosovan Liberation Army. The appellant was invited to make representations to the respondent regarding the proposal to revoke the declaration of refugee status but he failed to do so. It was submitted on behalf of the appellant that the process by which the decision to revoke was reached was flawed and in the very least further enquiries ought to have been made with the UK Border Agency and the hearsay information received should not have been relied upon to revoke the declaration of refugee status.

Held by Cooke J. in dismissing the application: That this case involved a statutory appeal and the court could 'as it thinks proper' either confirm the respondent's decision to revoke or direct that he withdraw it. The court was not limited, as it is in judicial review proceedings, to judging the legality of the process by which the decision was made by reference only to the information before the respondent at that time. The court was entitled to consider the appellant's explanation notwithstanding the failure to make representations to the respondent. It was now clear and undisputed that the appellant made an application for asylum in the United Kingdom and this information was concealed from the Irish Authorities. Furthermore, the concealment of that fact was capable of coming within paragraph (h) of s. 21(1) as a material particular which was false and misleading. It was clear that the basis of the original declaration was falsified by the withholding of that material information. However, the revocation did not prevent the appellant from seeking to make a new application for refugee status or, if the respondent proposed to make a deportation order, from seeking permission to remain in the State on humanitarian grounds and the prohibition on refoulement continued to apply.

Reporter: L.O'S.

REFUGEE ACT 1996 S21(5)

REFUGEE ACT 1996 S21(5)H

REFUGEE ACT 1996 S21(5)(3)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S21(1)H

REFUGEE ACT 1996 S11(B)

REFUGEE ACT 1996 S12(4)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 11(2)

EEC DIR 2004/83 ART 14.3

REFUGEE ACT 1996 S21

REFUGEE ACT 1996 S21(1)A

REFUGEE ACT 1996 S21(1)B

REFUGEE ACT 1996 S21(1)C

REFUGEE ACT 1996 S21(1)D

REFUGEE ACT 1996 S21(1)E

REFUGEE ACT 1996 S21(1)F

REFUGEE ACT 1996 S21(1)G

REFUGEE ACT 1996 S21(1)H

EEC DIR 2004/83 ART 14

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 11(2)(B)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 11(2)(C)

EEC DIR 2004/83 ART 14.3(B)

EEC DIR 2004/83 ART 14.3(A)

EEC DIR 2004/83 ART 4.1

EEC DIR 2004/83 ART 4.2

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 11(2)(A)

REFUGEE ACT 1996 S5

Mr. Justice Cooke

1 The appellant in this case was declared to be a refugee on 13^th November, 2001 based upon a positive recommendation of the Refugee Appeals Tribunal of 8^th October, 2001, which had reversed an earlier negative recommendation of the Office of the Refugee Appeals Commissioner ("RAC") in a report dated 13^th March, 2001. He claimed to have fled from Kosovo because he had been beaten by police as a suspected member of the Kosovan Liberation Army. The Tribunal Member found the applicant to be credible and truthful and based on UNHCR advice, decided that he was still at risk of persecution as someone who had refused to join or had deserted from the Kosovan Liberation Army. The Commissioner had also found the appellant credible, but had considered that the risk no longer continued.

2 Having been declared a refugee, the appellant sought to be reunited with his wife, an Albanian national, in March 2004. He claimed that he had met her while visiting his mother who was in hospital in Tirana and they had married there in 2004.

3 By letter of 9^th December, 2008, the respondent's officials were notified by the UK Border Agency that the appellant had applied at the British Embassy for a UK visa and that, on examination, it had transpired from their fingerprint database, that the appellant's fingerprint matched an Albanian national in their records "Shahbani Ilir, 25/02/1997".

4 The appellant admits that this match is correct. He did indeed travel through the UK at that time and had been apprehended and fingerprinted. He says that he gave his father's name to the UK authorities. He denies, however, that the told the UK agency that he was an Albanian national. He told them that he was from Kosovo but of Albanian ethnicity.

5 Following receipt of this information, the respondent, on 8^th December, 2009, issued the appellant with a formal proposal to revoke the declaration of refugee status on the ground that he had given "false and misleading information during the course of your asylum application". The letter continued:

"You stated your nationality to be Kosovan and based your application on events taking place in that country at that time. Information now received from the UK authorities (copy attached) now indicates that you are, in fact, a national of Albania and not Kosovo, as indicated during the course of your asylum application."

6 The appellant was invited to make representations to the respondent against that proposal but it is accepted that he failed to do so. The solicitor he consulted at the time felt that there was nothing that he could do to help.

7 By letter of 4^th March, 2010, the respondent revoked the declaration of refugee status and the appellant now appeals that decision pursuant to s. 21(5) of the Refugee Act 1996 (as amended). The reason given for the revocation is in precisely the same terms as that given in the proposal letter of 8 December 2009 (se para 5 above,) and is based upon the information from the UK Border Agency to the effect that the appellant is not from Kosovo but is of Albanian nationality.

8 In the written legal submissions lodged for this application, much attention has been paid to the legal question as to the scope of the Court's jurisdiction in addressing the issues that arise under section 21(5). Indeed, counsel for the appellant would appear to be torn between the Scylla of pure judicial review and the Charybdis of a fullde novo appeal hearing. The reason for the dilemma is as follows.

9 The specific ground for revocation is based upon the statement of the UK Border Agency that the fingerprint matches that of a person it describes as an Albanian national. No further enquiry has been made by the respondent as to the background to the information held by the Agency. As mentioned, the appellant accepts that he passed through the UK at the time and that the fingerprint is his own, but says that he never told them he was an Albanian national. Possibly, the Agency has misunderstood or misreported his claim to be of Albanian ethnic origin but a native of Kosovo. It is argued that such slight and hearsay information ought not to have been relied on to revoke a declaration of refugee status which was based upon a full acceptance of the appellant's credibility and truthfulness as to his Kosovan origin throughout the asylum process. At the very least, the respondent ought to have made further enquiries into the information held by the UK Border agency. Thus, the process by which the decision to revoke was reached was clearly flawed, so that if the court were to approach the matter as it would if subjecting such a decision to judicial review, it would quash the decision as unlawful.

10 This however poses a problem in that the information from the UK Border Agency was specifically put to the appellant and was not disputed because no representations on his behalf were made by way of response. The respondent was, accordingly, entitled to assume that the truth of the information and its interpretation by the respondent was accepted by the appellant and that he had made no representations because he had no answer to the accusation, that he had lied about being from Kosovo. On that basis, the Court would not annul the respondent's decision as unlawful if approaching the issue as it would an application to quash the decision on judicial review....