IBM (Sudan) v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hogan |
| Judgment Date | 31 January 2012 |
| Neutral Citation | [2012] IEHC 58 |
| Court | High Court |
| Date | 31 January 2012 |
[2012] IEHC 58
THE HIGH COURT
BETWEEN
AND
AND
RSC O.40 r1
RSC O.40 r4
BRIDGEMAN v KILCOCK TRANSPORT LTD UNREP KEANE 27.1.1995 1995/1/274
CLARKE v GOVERNOR OF CLOVER HILL PRISON UNREP HOGAN 12.5.2011 2011 IEHC 199
KIELY v MIN FOR SOCIAL WELFARE (NO 2) 1977 IR 267
AL-KHAWJA v UNITED KINGDOM 2011 ECHR 2127
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)
S O'CONNOR & SON LTD v WHELAN 1993 1 IR 560 1992/12/3911
LAND & CONVEYANCING LAW REFORM ACT 2009 PART XI
IMMIGRATION LAW
Evidence
Hearsay evidence on affidavit - Application to cross-examine applicant on affidavit - Application based on averment as to belief but non-disclosure of source of belief - Whether affidavit admissible - Whether cross-examination of applicant on affidavit permitted -People (DPP) v McLoughlin [2009] IESC 65, [2010] 1 IR 590; In re Haughey [1971] IR 217; Maguire v Ardagh [2002] 1 IR 385 and Kiely v Minister for Social Welfare [1977] IR 267 applied - Bridgeman v Kilcock Transport Ltd (Unrep, Keane J, 27/1/1995); Clarke v Governor of Cloverhill Prison [2011] IEHC 199, [2011] 2 IR 742; S O'Connor & Son Ltd v Whelan [1993] 1 IR 560 and Al-Khawaja v United Kingdom (App No 26766/05 and 22228/06) [2011] ECHR 2127 approved - Rules of the Superior Courts 1986 (SI 15/1986), O 40 - Land and Conveyancing Law Reform Act 2009 (No 27) - European Convention on Human Rights 1950, art 6(1) - Application granted (2008/32JR - Hogan J - 31/1/2012) [2012] IEHC 58
M(IB)(Sudan) v Refugee Appeals Tribunal
1. The applicant is a Sudanese national who is currently challenging the validity of the decision of the Refugee Appeals Tribunal of November, 2007 which refused his application for asylum. In the course of this application for leave to apply for judicial review it emerged that the applicant had also made an application for asylum in Northern Ireland in July, 2009. To that end the applicant filed a further affidavit on 6 th January, 2012, explaining the background to that particular application. This account has been disputed by affidavits sworn on behalf of the Minister and it is now sought to have the applicant cross-examined on that affidavit.
2. The applicant left Sudan on 24 th December, 2006, having arranged with an agent to have himself smuggled by ship from Port Sudan. He appears to have arrived in Ireland sometime in January, 2007. He claims to be a member of the Zagawi tribe and he was formerly a resident a Kutum, a town in the Northern Dafur region. He says that he was a member of the Justice and Equality Movement which was engaged in a campaign of insurgency against the Sudanese Government. Given its location in Northern Darfur, Kutum found itself surrounded by the Arab Janjaweed militia. There is no doubt but that during the period which is the subject of the applicant's asylum claim the local indigenous population were subjected to a campaign of appalling and systematic violence.
3. This much was accepted by the Refugee Appeal Tribunal in its decision of 28 th November, 2007. However, the Tribunal member found against the applicant on general credibility grounds, both in relation to his account of persecution in Darfur and his account of how he travelled from Sudan to Ireland.
4. The factual dispute in question arises in the following fashion. The applicant maintains that he was very depressed and in a poor mental state after learning from a fellow tribesman who lawfully resides in Ireland that his wife had died in a refugee camp in Chad in June, 2008. The applicant says that he was told that his wife had been beaten to death, albeit that the death certificate recites that she died from a heart attack.
5. At all events, the applicant maintains that his mental condition was so low that he in looked in desperation for ways to escape from his present predicament, namely, that of a failed asylum seeker. Having learnt of the delays in the asylum list in this Court, he says that some fellow asylum seekers suggested that it might be easier and quicker to obtain asylum in Northern Ireland. To that end he admits that he travelled to Belfast in July 2009 and he immediately applied for asylum. He accepts that he furnished an incorrect date of birth and gave false details regarding his departure from Sudan. When it emerged from a fingerprint check that the applicant had already applied for asylum in this State, the applicant says that he acknowledged this immediately and agreed to return to this State.
6. As has been indicated, the Minister issued a motion on 18 th January, 2012, whereby he sought an order pursuant to O. 40, r.1 RSC 1986 seeking to have the applicant cross-examined on this affidavit. This motion was grounded on the affidavit of Garda Kieran Somers, a garda attached to the Garda Síochána Immigration Office in Dundalk Station. Garda Somers swore that "on the basis of information available to me" that he did not believe that the applicant had given:
"…a true account in that affidavit of the circumstances which has led him to apply for asylum in the United Kingdom and then to return to the State to pursue his application for asylum...."
7. No further details were furnished in the affidavit. Specifically, Garda Somers did not disclose the source of his information and nor did he explain how he contended that the applicant's account was inaccurate.
8. Counsel for the applicant, Mr. Haughton S.C., objected strongly to this affidavit on the ground that it did not comply with the requirements of O. 40, r.4. This provides that:-
"Affidavits shall be confined to such facts as the witness is able to of his own knowledge to prove, and shall state his means of knowledge thereof, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted." (emphasis supplied)
9. This issue was examined by Keane J. in Bridgeman v. Kilcock Transport Ltd., High Court, 27 th January, 1995. Here the plaintiff sued the defendant for personal injuries, contending that a truck driven by an employee of the defendant had driven over him. The defendant pleaded that the accident occurred was the result of the plaintiff having deliberately lain down under the truck while it was stationery.
10. The defendant then sought discovery of certain hospital records by means of third party discovery, contending that there were grounds for suspecting that the plaintiff was suffering from a psychiatric illness. The Master had refused to grant the order sought because the only evidence before him was an averment from the defendant's solicitor that he had been informed by an "acquaintance" of the plaintiff that this was so. The solicitor in question stated that he had assured the person concerned that his or her identity would not be disclosed.
11. Keane J. accepted that if the plaintiff had suffered from some sort of mental disorder this would be plainly relevant to its defence that he had had deliberately lain under the vehicle and "the right of privacy strenuously relied on by [counsel for the plaintiff] would have to yield to the overriding requirements of justice". Having referred to the requirements of O. 40, r.4, Keane J. then continued:-
"The provisions of this rule undoubtedly permit the reception of hearsay evidence on an interlocutory application such as this. But the deponent must also state the grounds of his belief and he is not entitled to deprive the court of an opportunity of determining whether such a ground exists by giving an assurance to an informant...
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