Shao v Minister for Justice & Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 26 November 2019 |
| Neutral Citation | [2019] IEHC 826 |
| Docket Number | [2019 No. 78 J.R.] |
| Court | High Court |
| Date | 26 November 2019 |
[2019] IEHC 826
THE HIGH COURT
JUDICIAL REVIEW
Richard Humphreys
[2019 No. 78 J.R.]
Asylum & immigration – Deportation order – Chinese national – Application for leave to seek judicial review
Facts: The applicant was a Chinese national who had been arrested and later released as the charges against him had been struck out. A deportation order had been made in the interim, and the applicant had been granted a stay pending the determination of this application for judicial review.
Held by the Court, that the application would be dismissed. Having considered the submissions made by the applicant that he had not been adequately served with the deportation order, the Court was persuaded that it was not appropriate to grant the reliefs sought.
The applicant arrived in the State from China on 26th April, 2002. He was given a student permission for slightly less than three months until 23rd July, 2002. In fact, he stayed unlawfully for a further seventeen years. The applicant appears to have had an address in the IFSC area initially.
On 23rd September, 2009 he was stopped on Parnell Street by D/Garda Byrne who was attached to the GNIB and who observed the applicant at around 8.30 pm obstructing traffic. D/Garda Byrne says that he was able to converse with the applicant in English, although in the present proceedings the applicant has sworn an affidavit in Mandarin. The applicant gave a false name, Junyun Wang, and was asked by D/Garda Byrne to produce a passport or identity document or to provide a reasonable excuse for not being in possession of such papers. Having failed to do so, the applicant was arrested pursuant to ss. 12 and 13 of the Immigration Act 2004. D/Garda Byrne has averred that “ the name and address given to me by him following his arrest was ‘Zhigang Shao’ of ‘25 Broadmeadow, Drogheda, Co. Louth’” and the relevant notebook is exhibited.
On 22nd November, 2009, the applicant failed to attend District Court No. 44 in connection with this charge and a bench warrant was issued. On 2nd November, 2009, D/Garda Byrne wrote to D/Sgt Stratford of the GNIB Evader Tracking Unit enclosing a copy of the registration details as they then stood (a document that was not exhibited by the State) and requesting the issue of a proposal to deport following non-attendance. This was passed up the system and on 10th November, 2009 D/Superintendent Tallon wrote to the Assistant Principal in the registration division seeking a notification under s 3(4).
On 27th November, 2009 such a proposal was sent to the applicant at “25 Broadmeadows” in Drogheda. There is no specific evidence whether there is or is not any such address, although the fact that the letter was returned marked “insufficient address” does raise an inference that is at least slightly more likely than not that there is no such precise address. The applicant avers at para. 8 of his affidavit that he lived at 25 Boyne Meadow and that he “did not knowingly give the Garda an incorrect address”.
The relevant statutory provisions were stuck down as unconstitutional in Dokie v. DPP [2011] IEHC 110 (Unreported, Kearns P., 20th March, 2011). As against that it might be said that the concept of doing something without reasonable excuse occurs throughout the criminal law and is not necessarily problematic in itself, so the conclusion of unconstitutionality might on one view not be entirely self-evident, but I have not been asked to revisit that decision in this particular case.
Following that decision, the charges against the applicant were struck out. An examination of file took place in the Department of Justice and Equality on 7th August, 2012 and a deportation order was made on 20th February, 2013. That order was then purportedly served under cover of a notice under s. 3 of the Immigration Act 1999 at the same address in 25 Broadmeadows in Drogheda and again was returned marked “insufficient address”.
On 21st March, 2018, the applicant married another Chinese national who was lawfully resident in the State and then applied to the Department for permission to remain in the State on foot of that marriage. On 15th November, 2018, the applicant was given a notice, again at least initially anyway, addressed to 25 Broadmeadows, requiring him to present to GNIB on 21st February, 2019. On 5th November, 2018 the applicant was written to at an address in Brunswick Court in Dublin and informed of the deportation order and also informed that he was being treated as an evader. It was noted that his correspondence (that is on foot of the marriage) would be treated as an application for revocation of the deportation order under s. 3(11) of the Immigration Act 1999.
The applicant's solicitors then made a request under the Freedom of Information Act 2014 for relevant documents. That was replied to on 2nd January, 2019. Certain documents were furnished; others were refused. A data protection request followed on 25th January, 2019 and on 8th February, 2019 the statement of grounds in the present proceedings was filed, the primary relief sought being certiorari of any notification under s. 3(3) of the 1999 Act including the notice dated 27th November, 2009, certiorari of the deportation order of 20th February, 2013 and if necessary an order extending time.
On 27 February, 2019 the applicant's solicitors were given a data access response which included the current registration details held by GNIB, showing the applicant's address as being in the IFSC, suggesting that the address had never been updated since his arrival in the State. The applicant didn't appear to appreciate the significance of this document initially and didn't exhibit it prior to the hearing date.
On 11th February, 2019, I granted leave and a stay on the deportation order and on 4th July, 2019, a commendably succinct statement of opposition was delivered, which was essentially a traverse of the statement of grounds. I have now received helpful submissions from Mr. Conor Power S.C. (with Mr. James Buckley B.L.) for the applicant and from Mr. Anthony Moore B.L. for the respondent.
The context here is that the onus of proof is on the applicant. The conflict of evidence as to what transacted between D/Garda Byrne and the applicant has to be viewed through that spectrum. The applicant did not challenge D/Garda Byrne's evidence by seeking cross-examination and I therefore must resolve the conflict of affidavits against the...
To continue reading
Request your trial
-
Shao v Minister for Justice and Equality (No. 2)
...reopen the judgment Facts: The High Court (Humphreys J) gave judgment in this case in Shao v Minister for Justice and Equality (No. 1) [2019] IEHC 826, dismissing the applicant’s application for certiorari of a deportation order. A number of affidavits had been filed since the date of the e......