R (A) & K (D) v Minister for Justice

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 19 March 2002
• Neutral Citation: [2002] IEHC 160
• Court: High Court
• Date: 19 March 2002

[2002] IEHC 160

THE HIGH COURT

RECORD NO 726JR/2001

2001 141 IA

R (A) & K (D) v. MINISTER FOR JUSTICE

JUDICIAL REVIEW

DUBLIN

Between

A R

Applicant

and

THE MINISTER FOR JUSTICE, EQUALITY AND LAWREFORM

Respondent

AND

Between/

D K

Applicant

AND

THE MINSTER FOR JUSTICE EQUALITY AND LAWREFORM

Respondent

Citations:

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 5(4)

K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 1 ILRM 401

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 3(3)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 5

ADAN V SECRETARY OF STATE FOR THE HOME DEPARTMENT 1998 2 WLR 702

MAXWELL ON THE INTERPRETATION OF STATUTES

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 1(f)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 3(2)

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 6

DUBLIN CONVENTION (IMPLEMENTATION) ORDER 2000 SI 343/2000 ART 7

IMMIGRATION ACT 1999 S3(2)(e)

REFUGEE ACT 1996 S22

IMMIGRATION ACT S3(3)

IMMIGRATION ACT S3(5)(b)

DECISION NO 1/97 9.9.1997 OJ L281 40 14.10.1997

DUBLIN CONVENTION 15.6.1990 ART 18

DECISION NO 1/97 9.9.1997 OJ L281 40 14.10.1997 ART 9

DECISION NO 1/97 9.9.1997 OJ L281 40 14.10.1997 ART 10

DECISION NO 1/97 9.9.1997 OJ L281 40 14.10.1997 ART 11

DUBLIN CONVENTION 15.6.1990 ART 5

DECISION NO 1/97 9.9.1991 OJ L281 40 14.10.1997 ANNEX III

Abstract:

Judicial review - Immigration, refugee and asylum law - Whether respondent had sufficient evidence to transfer applicants to another state for determination of asylum applications - Dublin Convention, article 5.4 - Immigration Act, 1999 (No 22).

the respondent made a decision to transfer the applicants' cases under article 5.4 of the Dublin Convention to other Member States for determination of their asylum applications. Both applicants contended that article 5.4 of the Convention was not pertinent to their cases as though their passports showed Schengen visas for other Member States which had expired less than six months previously they had not arrived in Ireland from the states which had issued those visas. They applied to have the said decisions judicially reviewed.

Held by Smyth J in refusing the relief that article 5.4 of the Convention should be approached in a purposive approach rather than a narrow linguistic one. The expired visas in each case must have enabled entry, which when referred back to the expression in article 1(f) must have been such that there was no further entry conditions requiring fulfilment. An applicant with an unexpired visa, who may have availed of it to actually enter the territory of a Member State, could nonetheless be returned to the country which issued the expired visa to have his asylum application determined. In the circumstances, both the Commissioner and the Tribunal had evidence before them to enable them to come to the decisions to transfer the applicants to another state for determination of their asylum applications.

1 MR. JUSTICE T.C. SMYTHDELIVERED ON TUESDAY, 19TH MARCH 2002

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action

APPEARANCES

FOR THE APPLICANT:	MR. DIGNAM BL
Instructed by:	MS. MARIA MAGUIRE
	REFUGEE LEGAL SERVICES
FOR THE RESPONDENT:
Instructed by:	CHIEF STATE SOLICITORS OFFICE
	OSMOND HOUSE
	LITTLE SHIP STREET
	DUBLIN 8

3 MR. JUSTICE T.C. SMYTHDELIVERED JUDGMENT ON TUESDAY, 19TH MARCH2002:

MR. JUSTICE SMYTH: The hearing of these two cases took place within a

4 few days of each other. While the parties were represented by different counsel in each case, both concerned issues arising from a consideration of Article 5.4 of the Dublin Convention. Accordingly for reasons of convenience I have considered it appropriate to deal with both cases in one judgment.

THE CASE OF R

5 This applicant, a Belarus national has a date of birth 16th January 1971. He asserts that he arrived in Ireland on 9th July 2001 through Shannon Airport. The Garda Siochana Immigration Unit, Detective Sergeants' office at Shannon Airport have a record of the arrival from Minsk of flight BZ 897 on 9th July 2001 at 10.35 am. The number who disembarked from the flight was 162, of whom are all accounted for in the official records.

6 The records do not show either-

7 2 (1) R, A, or

8 3 (2)K, D or

9 as having arrived on that flight on that date. The Applicant at Question 74 signed on 17th July 2002 confirms that he came to Ireland together with D K. There was no other flight from Belarussia on that date.

10 The Applicant made an application for refugee asylum pursuant to Section 8 of the Refugee Act 1996(as amended) at the office of the Refugee Applications Commissioner inDublin.

11 There is a controversy concerning the Applicant's passport. The Applicant (who does not personally swear any affidavit) asserts that he surrendered the passport to the Irish authorities to whom, when and where all unspecified. in this regard as in others I draw attention once again to the observations of Hardiman J. in the judgment of GK and others re: The Minister for Justice, Equality and Law Reform ( unreported, 17th December 2001, pages 11, 12) wherein the matter of tendering evidence and explanations of delay he observed as follows:

"It is preferable that explanations of this kind should be put before the court on affidavit of the applicants or one of them rather than by their solicitor on a hearsay basis."

12 The Respondent in the person of Miss Sheila Ryan avers that neither passport or ID card were producedby the Applicant, I accept what is stated concerning the ID card because it is consistent with the information in the Questionnaire signed by the Applicant. Regarding the passport - the details of which are given in the Questionnaire, it is clear that while the Respondent may not have received it to retain or on a surrender basis - someone, Applicant or Respondent photocopied some pages. Miss Ryan's affidavit avers that what was produced to the Irish authorities were the copy pages.

13 The ASY-1 form signed by the Applicant as confirmation of the correctness of the information contained therein, states that the reason the Applicant travelled to Ireland was to seek asylum, yet his flight ticket indicates that it is a monthly return ticket from Belarus to Ireland, the return date being 9th August 2001.

14 Coincidentally he appears also to have had a ticket for Havana in like character. The airline ticket produced does not show either that it was used or that the Applicant travelled using the ticket. There is no documentary evidence of a Boarding Card. There is no exit or more particularly Entry Stamp for either Shannon Airport or into or out of the Netherlands.

15 The reason he gave for seeking asylum is"Political". He received on 11th July 2001 a number of documents; of which he acknowledged receipt including:

"A notice under Article 3(3) of the Dublin Convention (Implementation) Order 2000."

16 On 17th July 2001 the Applicant completed the form of Questionnaire, from the information given in response to Question 84 (with much detail between 26th April 2000 and 6th July 2001) it is clear that the Applicant and D K were clearly closely involved together in political activity which did not find favour with the State authority or authorities in Belarus and that on 10th July 2001 the Applicant was to present himself to Lida I Investigation Department for the initiation of a criminal charge against the Applicant for being in "the border zones".

17 In the case of this Applicant there was a Schengen visa issued by the Netherlands on the copy extract of the passport provided by the Applicant. Correspondence was entered into with the Netherlands with a view to a possible transfer under the Dublin Convention where it had been earlier refused. On 7th September the Commissioner made a formal request to the Netherlands under Article 5 of the Dublin Convention, for the purposes of examining his asylum application. The transfer under theDublinConvention was accepted by the Netherlands under Article 5.4 of the Convention on 18th September 2001.

18 The Commissioner decided that the Applicant's asylum application should properly be examined in the Netherlands, and the Applicant was so notified on 19th September 2001. The Applicant appealed this decision to the Tribunal. The Notice of Appeal stated that the passport was given to the office of the Commissioner and that the stamps contained therein would prove that the Applicant had been to the Netherlands and returned to Belarus in March 2001. In a very detailed chronicle of events of March/April/May 2001 set out in response to Question 84 in the Questionnaire there is no reference whatsoever of any kind to leaving Belarus and going to and from the Netherlands. The items in March 2001 refer to (a) joining the BNF and on 25th March 2001 participating in a Freedom March in Minsk, and three days later giving evidence in court, and receiving a court warning in relation to that.

19 In a letter of 15th August 2001 a Mr. Liam Preston addressed a memorandum to Miss Ryan and Mr. Brennan HEO, it was clearly an earlier step in the process of ascertaining which (if any) State might respond to an enquiry under the Dublin Convention and reference is made to the Applicant thus:

"The Applicant had in his possession a valid Belarus passport containing a Schengen visa (No. BNL 4183698) which was issued by Belgium in Warsaw, Poland ... It was issued on 15/02/01 and was valid from 15/02/01 to 17/03/01."

20 In the events Belgium declined responsibility because "the person concerned has obtained a visa that was issued to him byHolland".

21 In the letter of Appeal to the Tribunal against the determination of the Commissioner, three grounds of appeal were advanced....