K.N. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 20 June 2017
• Neutral Citation: [2017] IEHC 527
• Docket Number: [2015 No. 373 J.R.]
• Court: High Court
• Date: 20 June 2017

[2017] IEHC 527

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2015 No. 373 J.R.]

BETWEEN

K. N., I. R., A.R.,

and

M. K., M. R., M. R.N. (MINORS SUING BY THEIR FATHER AND NEXT FRIEND, K. N.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration and Nationality – Refusal of visa application – Fraudulent document – Misleading information – Principles of rationality and reasonableness – Fundamental rights

Facts: The first named applicant filed the documentation in relation to the grant of visa on behalf of other applicants who had come to visit the first named applicant. The respondent refused to grant the visa on the ground that the information given by the first named applicant pertaining to his company and its web address was incorrect and that the first applicant was responsible for giving false and misleading information. The first applicant argued that his accountant was solely responsible for that false information and that the first applicant was not given any opportunity to rebut the allegations against him.

Ms. Justice Faherty denied the relief sought by the applicants. The Court observed that the respondent was fettered with discretion to determine the conditions for granting or refusing the visa. The Court held that the onus of proving that the requisite formalities had been fulfilled and that the information given was correct rested upon the applicants. The Court held that the first named applicant was on notice by making the visa application that the contents of the application were true and correct.

JUDGMENT of Ms. Justice Faherty delivered on the 20th day of June, 2017

1 The applicants are Pakistani nationals legally resident in the United Kingdom. The first named applicant has been living in the UK since 2007. He is the owner and director of High Protection Security Services Limited, a company registered in the UK.

2 On or about 27th June, 2014, the applicants applied for a visa to visit the first named applicant's brother who resides in the State. The first named applicant subsequently submitted the requisite documentation, including a letter from AnR Accountants, dated 30th June, 2014, in support of the application. The said letter referred to the first named applicant's company, High Protection Security Services Limited, and read as follows:-

'Please accept this letter as confirmation that we act as accountants for the above named and will be preparing the accounts for the year ended 31st March 2014.

We can confirm that Mr. Khalique ur Rahman Nayyar is the Director and Shareholder of the above mentioned Limited Company since 22nd March 2013 and is responsible for running the affairs and fulfilling compliances of the above mentioned Limited Company.

We have provided this information strictly for your purposes, without taking any responsibility on the part of the above. if u (sic) have any concerns do not hesitate to contact us.'

3 The letterhead had on it a stated address, telephone number and fax number, as well as website and email addresses.

4 On 8th July, 2014, the applicants were informed by the respondent's Visa Office in the Irish Embassy in London that the application was refused for the following reason:-

'ID: Authenticity of documents.

The letter you declared to be from your accountant is a fraudulent document. You have signed a legal declaration as part of your application which states that the information given to you is complete and true. This declaration also states that any false or misleading information or false supporting documentation may result in the refusal of your application without the right of appeal, and that this may result in being prevented from making further Visa applications. You have knowingly provided false information and documentation to the Visa Office therefore your visa application has been refused, and you cannot apply for an Irish visa for a period of two years. Furthermore, you have no right of appeal.'

As made clear subsequently, the allegation of fraud in that decision centred on the web address for AnR Accountants as appeared on the letterhead used by the accountants on 30th June, 2014.

5 On 23rd July, 2014, Edward Marshall, Solicitors in the UK for the first named applicant, wrote to the respondent requesting a reconsideration of the decision dated 8th July, 2014. It was submitted, inter alia, that AnR Accountants' letter should not be treated as a false document. The letter advised that the first named applicant had approached his accountant (Mr. Rehan Iqbal) in AnR Accountants and that it had been explained to him that on the occasion of the visa application Mr. Iqbal had used an old letterhead from the practice on which to print the letter of support dated 30th June, 2014. It was explained to the respondent by Edward Marshall Solicitors that Mr. Iqbal accepted that this was an error on his part and that the first named applicant was unaware that an old letterhead had been used in error. The solicitors exhibited a statutory declaration from Mr. Iqbal to this effect.

6 The solicitors further advised that it was unfair and unjust for the respondent to make the decision it did in circumstances where the first named applicant was not interviewed and was not given an opportunity to rebut the allegations levelled against him. It was also asserted that it was unfair and unjust that he had no right of appeal in circumstances where the allegation levied against him was serious. The respondent was requested to accept the statutory declaration and to remove the allegation of deception from the applicants' file.

7 According to the first named applicant, there was no reply from the respondent to this correspondence. The first named applicant then instructed Imran Panaawala Solicitors who wrote to the respondent on 21st August, 2015, requesting a reply to the previous letter of 23rd July, 2014.

8 On 26th August, 2014, the respondent sought evidence that Mr. Iqbal was the registrant of the web domain 'anraccountants.com' (which had appeared on the letterhead of 30th June, 2014), as well as a copy of the accountant's 'new in date letterhead'.

9 The first named applicant's solicitors replied on 17th September, 2014, wherein they attached two documents in response to the respondent's request, namely a letter from Mr. Iqbal and the new letterhead of the accountant firm.

10 In his letter, Mr. Iqubal confirmed that the old domain name, 'anraccountants.com', had been jointly accessed by him and his erstwhile partner (Mr. Asfand Malik) and that the domain had originally been purchased from a named 'Hoster Company' and registered in the name of Mr. Malik on 24th May, 2009. It was said that the domain expired sometime in May, 2012, and that during this period, the 'Hoster Company' was later sold internally to another 'Hoster Company' and for this reason it was very difficult to obtain the ownership records for the old domain 'anraccountants.com'. It was submitted that Mr. Iqubal had fought 'tooth and nail' to obtain the information he was providing to the respondent but that other than what was enclosed he would not be able to locate or obtain any further information with regard to the ownership of the old domain.

11 On 3rd October, 2014, the respondent advised the solicitors that 'without evidence of your client's registration of the domain anraccountants.com, it is not possible to reconsider the decision'.

12 On 9th October, 2014, the first named applicant's solicitors forwarded to the respondent a file said to have details of the domain name of their client's accountant which they said was 'self explanatory'

13 On 16th October, 2014, the respondent's Visa Office replied that it failed to see how the contents of the file which had been forwarded was self explanatory and sought an explanation of how it was evidence of the first named applicant's accountant's previous registration of the domain.

14 Panaawala Solicitors replied on 11th November, 2014, stating, inter alia, that the domain name had expired and the first named applicant's accountant (Mr Iqbal) had mentioned to the first named applicant that he was unable to log on to the previous domain account to obtain information to prove that it was previously owned by him. It was also stated that as the domain name had been purchased by the accountant's erstwhile partner Mr. Malik, the first named applicant's accountant had not been a registrant of the domain name for this reason. The respondent was also advised that the domain name had since been purchased by another customer, which prevented the first named applicant's accountant from obtaining information about its previous ownership. It was submitted that the first named applicant had submitted his accountant's letter 'in good faith' and that it was not the duty of the first named applicant to check that his accountant had used the correct letterhead. In this context, the respondent was asked again to reconsider its decision not to grant the visas. Part of the information furnished to the respondent comprised a document which referredto Mr. Malik and a named address as the 'Administrative Contact' for the domain name 'anraccountants.com'.

15 The Visa Office's response on 3rd December, 2014, was that it found the evidence insufficient and inconclusive.

16 On 12th February, 2015, another firm of solicitors, Bajwa Solicitors, wrote to the respondent on behalf of the first named applicant taking issue with the contents of the decision of 8th July, 2014 and reiterating that the first named applicant had provided documentation from his accountants 'in good faith'. It was pointed out that the first named applicant's accountant had admitted his mistake in a statutory declaration dated 18th July, 2014, to the effect that he and he alone, as the author of the letter of 30th June, 2014, was solely responsible for the document...