S.A.S. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 20 January 2017
• Neutral Citation: [2017] IEHC 163
• Court: High Court
• Docket Number: [2012 No. 279 MCA]
• Date: 20 January 2017

[2017] IEHC 163

THE HIGH COURT

JUDICIAL REVIEW

Stewart J.

[2012 No. 279 MCA]

[2012 No. 280 MCA]

BETWEEN

S.A.S.

APPELLANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

BETWEEN

A.A.S.

APPELLANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

Asylum, Immigration & Nationality – S. 21 (5) of the Refugee Act 1996 – Revocation of refugee status – Qualification Directive 2004/83/EC – Reg. 11 of the EC (Eligibility for Protection) Regulations 2006 – Misleading information – Burden of proof

Facts: The appellants had filed joint appeals against the decision of the respondent for revoking their refugee status. The appellants contended that the information received from the UK Border agency should not have been the basis for making the impugned decision as it was on the respondent to prove the refugee status would not have been granted to the appellants had that information was available at the time of making the asylum applications. The respondent alleged that based on the fingerprint match of the appellants with the Tanzanian nationals, the identity of the appellants had been established and ran contrary to the Somali nationals as asserted by the appellants, and thus, the appellants had presented misleading and false information.

Ms. Justice Stewart refused to grant the desired relief to the appellants. The Court held that the onus of proving the case rested on the appellants and they had failed to discharge that onus. The Court found that the appellants did not submit any information to contradict the factual findings made by the respondent that the appellants had travelled to the United Kingdom on a travel visa using the Tanzanian passports. The Court noted that there was no doubt that had the present information been available to the decision-makers, the appellants would not have been granted refugee status by the Refugee Appeals Tribunal. The Court held that the appellants had admitted the use of fake passports and disclosed their true identity that they were brothers, and throughout the asylum process, they kept representing themselves as cousins.

JUDGMENT of Ms. Justice Stewart delivered on the 20th day of January, 2017.

1 The cases currently before the Court are joint statutory appeals pursuant to s. 21 (5) of the Refugee Act 1996 (as amended) against the decision of the respondent to revoke the appellants' declaration of refugee status.

2 Section 21 of the Refugee Act 1996 (as amended) sets out the conditions for the revocation of refugee status and recourse to the High Court in the form of an appeal against the Minister's decision, which is the subject of these proceedings. It is worthwhile reciting the relevant section hereunder:

“Revocation of declaration

21.—(1) Subject to subsection (2), if the Minister is satisfied that a person to whom a declaration has been given—

…

(h) is a person to whom a declaration has been given on the basis of information furnished to the Commissioner or, as the case may be, the Tribunal which was false or misleading in a material particular, the Minister may, if he or she considers it appropriate to do so, revoke the declaration.

…

(3) (a) Where the Minister proposes to revoke a declaration under subsection (1), he or she shall send a notice in writing to the person concerned of his or her proposal and of the reasons for it and shall at the same time send a copy thereof to the person's solicitor (if known) and to the High Commissioner.

(b) A person who has been notified of a proposal under paragraph (a) may, within 15 working days of the issue of the notification, make representations in writing to the Minister and the Minister shall—

(i) before deciding the matter, take into consideration any representations duly made to him or her under this paragraph in relation to the proposal, and

(ii) send a notice in writing to the person of his or her decision and of the reasons for it.

(4) (a) A notice under subsection (3)(a) shall include a statement that the person concerned may make representations in writing to the Minister within 15 working days of the issue by the Minister of the notice.

(b) A notice under subsection (3) (b) (ii) shall include a statement that the person concerned may appeal to the High Court under subsection (5) against the decision of the Minister to revoke a declaration under subsection (1) within 15 working days from the date of the notice.

(5) A person concerned may appeal to the High Court against a decision of the Minister under this section and that Court may, as it thinks proper, on the hearing of the appeal, confirm the decision of the Minister or direct the Minister to withdraw the revocation of the declaration.

(6) A person concerned shall not be required to leave the State before the expiry of 15 working days from the date of notice of a proposal under subsection (3) and, if an appeal is brought against the decision of the Minister, before the final determination or, as the case may be, the withdrawal of the appeal.

3 Article 14 of the Qualification Directive, 2004/83/EC provides:

“3. Member States shall revoke, end or refuse to renew the refugee status of a third country national or a stateless person, if, after he or she has been granted refugee status, it is established by the Member State concerned that:

[…]

(b) his or her misrepresentation or omission of facts, including the use of false documents, were decisive for the granting of refugee status.”

4 Regulation 11 of the EC (Eligibility for Protection) Regulations, 2006 ( S.I. 518 of 2006) provides:

“Refusal to grant or to renew or may revoke a declaration […]

11(2) Where—

(a) paragraph … (h) of section 21(1) of the 1996 Act applies, as respects a person to whom a declaration has been given,

(b) a person to whom a declaration has been given misrepresented or omitted facts (including through the use of false documents) and this was decisive for the granting of the declaration, […]

the Minister shall, without prejudice to section 21(2) of the 1996 Act, revoke or, as the case may be, refuse to renew the declaration.”

Background

5 The appellants state that they are cousins, who arrived in the State as unaccompanied minors in December, 2005. They applied for asylum on 9th December, 2005. S.S., the first-named appellant, claimed that he was a Somali national from Ras Kiamboni, born on 31st January, 1989. He claimed that his parents were killed when he was a child and that he moved to Koyama, where he lived with his uncle and cousin, the second-named appellant in these proceedings. The second-named appellant, A.S., stated that he was a Somali national from Koyama and was born on 12th December, 1989. Both appellants stated that they had travelled from Koyama and arrived in Mombasa, Kenya on 26th November, 2005, with A.S.'s father and younger brother.

6 The appellants stated that they travelled from Koyama to Mombasa by boat on 26th November, 2005, where they stayed with a friend of A.S.'s father. They stated that the family was arrested by police for failure to produce documents, detained for a few days and released upon payment of a bribe by the father's friend. The appellants, through A.S.'s father, organised travel to Ireland with the assistance of an agent. A.S.'s father and brother returned to Kayama and the two cousins left for Nairobi, stating that they travelled by airplane, transiting through an unknown country and arriving in Ireland on 2nd December, 2005.

7 The appellants applied for asylum on 9th December, 2005. As both appellants were sixteen years old at the time, their applications were dealt with pursuant to s. 8(5) of the Refugee Act 1996 (as amended), which states as follows:

“(5) (a) Where it appears to an immigration officer that a child under the age of 18 years, who has either arrived at the frontiers of the State or has entered the State, is not in the custody of any person, the officer shall, as soon as practicable, so inform the Health Service Executive and thereupon the provisions of the Child Care Act, 1991, shall apply in relation to the child.

(b) Where it appears to the Health Service Executive, on the basis of information available to it, that an application for a declaration should be made by or on behalf of a child referred to in paragraph (a), the Health Service Executive shall arrange for the appointment of an employee of the Health Service Executive or such other person as it may determine to make an application on behalf of the child.”

8 The Refugee Applications Commissioner issued a negative recommendation in respect of both appellants, notified to A.S. on 15th March, 2006, and to S.S. on 21st March, 2006. Both decisions were issued separately and cited issues with personal credibility where the decision-maker did not accept that the appellants were from Somalia. Both appellants appealed these negative recommendations to the Refugee Appeals Tribunal. Both appellants were issued with positive recommendations from the Refugee Appeals Tribunal, dated 24th July, 2006, in two separate decisions from the same Tribunal Member.

9 It would appear from a series of e-mails exhibited during the course of these proceedings that the Investigations Liaison Unit of the Refugee Applications Commissioner used the Eurodac procedures to check A.S.'s fingerprints with the UK authorities when he applied for Irish citizenship in 2011. This check resulted in a match with a Tanzanian national. As a result of the match, S.S.'s fingerprints were also checked through the Eurodac system, which matched another Tanzanian national according to the UK records. The information from the UK authorities stated as follows:

1. A.S. and S.S. applied for a UK visit visa on 29th April, 2005, using Tanzanian passports, with their father named as sponsor. This would make them brothers.

2. Their stated father was also applying for a visit visa and listed the...