A (S) [Afghanistan] v Refugee Appeal Tribunal and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 17 January 2012
• Neutral Citation: [2012] IEHC 8
• Court: High Court
• Date: 17 January 2012

[2012] IEHC 8

THE HIGH COURT

[No. 1227 J.R./2008]

A (S) [Afghanistan] v Refugee Appeal Tribunal & Ors

BETWEEN

SA (AFHGANISTAN)

APPLICANT

AND

REFUGEE APPEAL TRIBUNAL, MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

RSC O.40 r14

REFUGEE ACT 1996 S11

RULES OF THE SUPERIOR COURTS (AFFIDAVITS) SI 95/2009

SALEEM v MIN FOR JUSTICE UNREP COOKE 2.6.2011 2011 IEHC 223

RSC O.40 r14(2)

O'CONNOR v NEURENDALE LTD UNREP HOGAN 22.10.2010 2010/40/10232 2010 IEHC 387

DPP v CORBETT 1992 ILRM 674

O'LEARY v MIN FOR TRANSPORT 2000 1 ILRM 132

GALE v SUPERDRUG STORES PLC 1996 1 WLR 1089

CROPPER v SMITH 1883 26 CH D 700

IMMIGRATION LAW

Asylum

Judicial review - Leave - Tribunal - Afghan national - Preliminary issue - Whether proceedings to be struck out in limine on grounds of non-compliance with rules for affidavits - Interview conducted in foreign language with interpreter - Affidavit sworn in English without explanation as to how instructions were taken - Whether affidavits inadmissible - Whether proceedings to be struck out - Judicial discretion to deal with non-compliance - Justice of individual case - Saleem v Minister for Justice, Equality and Law Reform [2011] IEHC 223, (Unrep, Cooke J, 2/6/2011); Re Sarazin's Letters Patent [1947] 64 RPC 51; O'Connor v Nurendale Ltd [2010] IEHC 387, (Unrep, Hogan J, 22/10/2010); Director of Public Prosecutions v Corbett [1992] ILRM 674; O'Leary v Minister for Transport [2000] IESC 16; [2000] 1 ILRM 132; Gale v Superdrug Strores plc [1996] EWCA Civ 1306, [1996] 1 WLR 1089 and Cropper v Smith (1883) 26 Ch D 700 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 40, r 14 - Application stayed to enable filing of fresh affidavit (2008/1227JR - Hogan J - 17/1/2012) [2012] IEHC 8

A(S) v Refugee Appeals Tribunal

1 JUDGMENT of Mr. Justice Hogan delivered on 17th January, 2012

2 1. In the course of this application for leave to apply for judicial review an issue has been raised by the respondents regarding the proper construction of O. 40, r. 14 RSC 1986 concerning the swearing of affidavits in the English language. This is now required to be determined by me as a preliminary issue.

3 2. The problem arises in this way. The applicant is an Afghan national who sought asylum here based on his membership of a tiny Maoist organisation, the Afghan People's Liberation Army ("SAMA"). He maintains that he has a well founded fear of persecution by the Taliban should he returned to Afghanistan. To this end the applicant seeks to challenge the validity of a decision of the Refugee Appeal Tribunal dated 22 ^nd September, 2008, as rejected that claim. In the course, however, of the application for leave to apply for judicial review the question, the preliminary issue to which I have already alluded duly arose.

4 3. In the course of his asylum questionnaire the applicant stated that his first languages are Hazaraghy and Dari. The applicant left blank the question as to whether he spoke any other languages. The s. 11 interview was conducted in Dari with an interpreter and the applicant's notice of appeal to the Refugee Appeal Tribunal sought the assistance of a Dari interpreter. Yet the grounding affidavit sworn by the applicant was sworn in English and, furthermore, no explanation has been offered as to how the applicant's solicitor was able to take appropriate instructions with regard to the prosecution of the proceedings.

The requirements of O. 40, r. 14

5 4. It is against this background that the respondents contend that the proceedings should be struck out in limine on the ground of non-compliance with O. 40, r. 14. The present version of r. 14 was inserted by the Rules of the Superior Courts (Affidavits) 2009 ( S.I. No. 95 of 2009) and the rule in relevant part provides as follows:-

6 2 "14. (1) A person taking an affidavit shall certify in the jurat of every affidavit taken by him:-

7 (a) that he personally knows the deponent, or

8 (b) that the deponent has been identified to him by some person personally known to him and named in the jurat who certifies his personal knowledge of the deponent, or

9 (c) that the identity of the deponent has been established by him by reference to a relevant document containing a photograph of the deponent before the affidavit was taken,

10 and in a case to which paragraph (c) applies shall give particulars of the relevant document concerned.

11 (2) A person taking an affidavit shall, where it appears to him that the affidavit is sworn by any person who appears to be illiterate or blind, certify in the jurat that the affidavit was read in his presence to the deponent and, that the deponent fully understood it, and that the deponent made his signature or mark in his presence. No such affidavit shall be used in evidence in the absence of this certificate, unless the Court is otherwise satisfied that the affidavit was read over to and fully understood by the deponent."

12 5. This entire issue was recently examined by Cooke J. in Saleem v. Minister for Justice, Equality and Law Reform [2011] IEHC 223, a case where a Pakistani national challenged the validity of a decision of the Minister to refuse him long term residency status. It emerged in the course of the hearing that the applicant had been relying on a friend to translate the affidavits and to give instruction to his instructing solicitor. The applicant was furthermore obliged to retract from an earlier averment in an affidavit on the ground that he had not understood it properly. As Cooke J. noted, it appeared that the applicant spoke "insufficient English to read the text of a draft affidavit put before him for swearing". This meant that the applicant was "illiterate" for the purposes of r. 14.

13 6. It followed, therefore, that:-

"as the applicant appears to have little or no understanding of English, this was not a case in which the affidavit should in any event have been sworn in the English language. The correct approach is that the affidavit should be sworn originally by the applicant in the language he speaks. This should be translated by an appropriately qualified translator and both the original and the certified translation should be put in evidence as exhibits to an affidavit in English sworn by the translator. It is true that there does not appear to be any direct authority in this jurisdiction on this point in modern times. It is also possibly the case that there has been a practice whereby a non-English speaking deponent swears an affidavit in English containing an averment or a certificate in the jurat to the effect that it has been first read over to the deponent in translation and a separate affidavit is filed by the interpreter to that effect. This latter practice appears to have been based upon a precedent in an old edition of Daniel's Chancery Forms, but was criticised by Vaisey J. in the English High Court in Re Sarazin's Letters Patent [1947] 64 R.P.C. 51. That judgment approved on the other hand the practice indicated for the swearing of an affidavit in a foreign language in the commentary on O. 41 of the Rules of the Supreme Court (England and Wales) and the note appears to have been continued in all subsequent editions: "When it is desired to file...