Shao v Minister for Justice and Equality (No. 2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 03 February 2020
• Neutral Citation: [2020] IEHC 68
• Date: 03 February 2020
• Docket Number: [2019 No. 78 J.R.]
• Court: High Court

BETWEEN

ZHIGANG SHAO

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(NO. 2)

[2020] IEHC 68

Richard Humphreys J.

[2019 No. 78 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Deportation order – Judicial review – Jurisdiction – Applicant seeking to reopen the No. 1 judgment in the light of the additional material since the ex tempore ruling and, if the judgment was reopened, to make an order of certiorari – Whether the High Court had jurisdiction to 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 ex tempore judgment. The information contained in the first three affidavits was referenced in the written version of the No. 1 judgment but that information was not considered when deciding to dismiss the application. The applicant, Mr Shao, applied to reopen the No. 1 judgment in the light of the additional material since the ex tempore ruling and, if the judgment was reopened, to make an order of certiorari. Those applications were opposed by the respondent, the Minister for Justice and Equality.

Held by Humphreys J that, in Lavery v DPP (No. 3) [2018] IEHC 185, he endeavoured to summarise the eight different situations in which a judgment could be reopened after it has been delivered. Humphreys J held that the relevant headings in this case were: exception 1, where the court can change a judgment order or simply change its mind prior to the perfection of the order; exception 4, where the judgment has been procured by what is described in Lavery as fraud but what also includes misleading the court; and exception 7, the general ground of exceptional circumstances in the interests of justice and constitutional rights. Humphreys J held that, as any one of these three headings would be sufficient to reopen the matter, the existence of three such independent grounds reinforced the conclusion that he should reopen the No. 1 decision and determine whether an order of certiorari should or should not be granted. Humphreys J held that the two main questions under that heading are: (i) Was the address at which the notice under s. 3 of the Immigration Act 1999 was served an address that was furnished to the local superintendent, being the local registration officer, simply by virtue of being given to a member of the GNIB? (ii) If not, did the applicant furnish an address for service for the purposes of s. 3? Humphreys J held that service at the address so given to D/Garda Byrne was not service at an address last furnished to the local registration officer in compliance with the statute. Humphreys J found that the applicant’s conduct in giving an address to D/Garda Byrne did not constitute furnishing an address for service and consequently the statutory provisions regarding service were not complied with.

Humphreys J held that he had jurisdiction to reopen the judgment, and that he should do so, and on doing so he would reverse the original decision in the No. 1 judgment and make an order granting certiorari quashing the deportation order.

Applications granted.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 3rd day of February, 2020

1 Withholding relevant information from the Court is not a good look. That look is not improved where it's the State that's doing the withholding, or, indeed, where some of the withholding was done on foot of a conscious decision by State counsel. Nor does it particularly assist that the information withheld from the Court included material previously obscured by not being separately identified when responding to an application under the Freedom of Information Act, 2004; a response that was later relied on by the applicant for forensic purposes.

Procedural background

2 I 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. While the judgment has been approved and published, no order has been perfected because the matter was adjourned initially for the purposes of costs. A number of affidavits have been filed since the date of the ex tempore judgment as follows:

(i). An affidavit of Eoin McGuigan, solicitor for the applicant, of 29th November, 2019, which showed that it was likely that the address at which the notice under s. 3 of the Immigration Act, 1999 was served had not in fact been registered with GNIB.

(ii). An affidavit of 13th December, 2019 of D/Garda Michael Byrne which inter alia explained difficulties with the GNIB registration system and that the system locks down so it cannot be updated after a point in time that is three months after the expiry of the last permission of a particular applicant. Thus he was unable to update the system on foot of the new address given to him by the applicant.

(iii). An affidavit of Mr. Alan King of INIS of 13th December, 2019 clarifying that what was and was not exhibited in the original affidavits filed on behalf of the respondent was decided on and dictated effectively by counsel for the respondent.

(iv). An affidavit of Alan King of 10th January, 2020 which disclosed that the two-page minute, crucial to the ( No. 1) judgment, was not separately identified in the schedule of documents furnished under the Freedom of Information Act, 2004 but rather was part of the set of documents that were described as a single document “report from GNIB 10/11/2018” (not that the applicant or the court could have known that without being told).

3 The information contained in the first three affidavits is referenced in the written version of the No. 1 judgment but obviously that information was not considered when deciding to dismiss the application. I have now heard further 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 State.

4 Leaving aside purely consequential issues, Mr. Power's application is now as follows:

(i). To reopen the ( No. 1) judgment in the light of the additional material since the ex tempore ruling; and,

(ii). If the judgment is reopened to make an order of certiorari.

5 Those applications are opposed on behalf of the respondent.

Respondent's duty of disclosure

6 The duty to disclose relevant material exists anyway even in civil plenary proceedings although in that context it is relatively limited – one can stay silent about weak factual points in one's case as a general proposition but one cannot by silence create a misleading impression ( Meek v. Fleming [1961] 2 Q.B. 366. Philp v. Ryan [2004] IESC 105 [2004] 4 I.R. 241, Crowley v. AIB [2016] IEHC 154).

7 The duty is however reinforced in the judicial review context where there is an obligation on respondents to disclose all relevant factual material. As it is put in R. v. Lancashire County Council, ex parte Huddleston [1986] 2 All E.R. 941 at 945, the respondent must put “all the cards face upwards on the table” in view of the fact that “the vast majority of the cards will start in the authority's hands”. That principle has been applied and reinforced in a very large body of case law, and is further discussed in Marc de Blacam, Judicial Review, 3rd ed. at para. 49.24.

3 As put by the Court of Appeal of England and Wales in Secretary of State for Foreign and Commonwealth Affairs v. Quark Fishing Ltd. [2002] EWCA Civ. 1409 a defendant whose decision or action is challenged by way of judicial review owes a duty of candour to give a true and comprehensive account of the decision making process.

8 In Tweed v. Parade's Commission for Northern Ireland [2007] 1 A.C. 650, Lord Carswell at para. 31 refers to “the obligation resting on a public authority to make candid disclosure to the court of its decision making process, laying before it the relevant facts and the reasoning behind the decision challenged”.

4 In Treasury Holdings v. NAMA [2012] IEHC 66 at paras. 126 and 127 Finlay Geoghegan J. approved the statement in Michael Fordham Q.C.'s Judicial Review Handbook (5th ed.) at para. 10.4 that, “A defendant public authority and its lawyers owe a vital duty to make full and fair disclosure of relevant material”.

5 The same principle was also applied by McDermott J. in McEvoy v. Garda Síochána Ombudsman Commission [2015] IEHC 203.

6 In R. (Citizens U. K.) v. Secretary of State for the Home Department [2018] EWCA 1812, Singh L.J. at para. 106 referred to the “duty of candour and cooperation with the court” on the part of respondents to “assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide”. He quoted with approval his judgment when sitting in the High Court in R. (Hoareau and anor.) v. Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin), at para. 20 that: “The duty of candour and co-operation which falls on public authorities, in particular on HM Government, is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. It would not, therefore, be appropriate, for example, for a defendant simply to off-load a huge amount of documentation on the claimant and ask it, as it were, to find the ‘needle in the haystack’. It is the function of the public authority itself to draw the court's attention to relevant matters; as [counsel] put it at the hearing before us, to identify ‘the good, the bad and the ugly’. This is because the underlying principle is that public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law.”

Should the (No. 1)...