Z.M.H v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 24 May 2012
• Neutral Citation: [2012] IEHC 221
• Docket Number: [No. 812 J.R./2011]
• Court: High Court
• Date: 24 May 2012

[2012] IEHC 221

THE HIGH COURT

[No. 812 J.R./2011]

H (ZM) [Somalia] v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN

Z. M. H. [Somalia]

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

REFUGEE ACT 1996 S18

REFUGEE ACT 1996 S18(3)

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 ( GENEVA CONVENTION)

REFUGEE ACT 1996 S18(4)

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

REFUGEE ACT 1996 S18(2)

FREEDOM OF INFORMATION ACT 1997 S7

R (BUTLER) v NAVAN URBAN DISTRICT COUNCIL 1926 IR 466

POINT EXHIBITION CO LTD v REVENUE CMRS 1993 2 IR 551 1993 ILRM 621 1993/9/2596

CRIMINAL LAW

Evidence

Proof - Judicial notice - Extended detention periods - Resolutions passed by both Houses of the Oireachtas continuing extended detention periods - Whether resolutions a formal proof required to extend detention period - Whether District Court entitled to take judicial notice of resolutions - Minister for Defence v Buckley [1978] IR 314 applied - Director of Public Prosecutions v Collins [1981] ILRM 447; The People (Director of Public Prosecutions) v Cleary [2005] IECCA 51, [2005] 2 IR 189 and The State (Taylor) v Circuit Court Judge of Wicklow and others [1951] IR 311 considered - Documentary Evidence Act 1925 (No 25) - Interpretation Act 1937(No 38), s 6 - Offences Against the State Act 1939 (No 13), s 30- Offences Against the State (Amendment) Act 1998 (No 39), ss 10 and 23 - Interpretation Act 2005 (No 23), s 13 - Legality of detention upheld (2013/746SS & 2013/747SS - Hogan J - 3/5/2013) [2013] IEHC 221

Mitchell v Member in Charge, Terenure Garda Station

Facts the applicant had been granted leave to seek orders of mandamus and declaratory relief by way of judicial review of the decision of the respondent refusing her application for family reunification as a refugee of her husband, children and mother. It was contended,Minter alia, that the decision on the part of the Minister to require production of her relatives' Somali passports in light of a clearly stated policy that they were not regarded as acceptable proof of identity was irrational or unreasonable.

Held by Mr Justice Cooke in refusing the relief sought, that the exercise of Ministerial powers under section 18 of the Act of 1996 had to be discharged in compliance with constitutional principles and reasonably and fairly on the basis of an objective consideration of the relevant materials put before the Minister.

East Donegal Co-operative v. Attorney General [1970] 1 I.R. 317 considered.

2. That that while it was the Minister who had to "be satisfied," of the necessary family ties, the onus lay with an applicant to provide the information, evidence and documentary proofs which the Minister was entitled reasonably to require in order to be satisfied that the conditions of the provisions of section 18 were applicable in a given case.

3. That the Minister was justified in taking special care in the processing of applications for family reunification originating or claiming to originate from Somalia. As Somalia had, for many years been a failed state devoid of any form of reliable civil administration including particularly public registries of births, marriages and deaths, with the result that no reliance could be placed upon any form of documentation in the nature of personal identification purporting to emanate from that state or from its embassies. While there were many genuine cases of Somali refugees living in undocumented status in Ethiopia and adjacent countries in dire circumstances, the Contracting States of the Geneva Convention were entitled to be alert to the fact that there were also large numbers of economic migrants from other states in the area who sought to exploit that situation by pretending to be Somali nationals and who produce forged documentation to that effect.

4. That an order of mandamus could only issue to compel a public authority to perform a public duty when there had been wrongful refusal to do so or when a delay in so doing was so excessive as to give rise to the implication that it was tantamount to a refusal. It could not be said in the light of the letter from the respondent to the applicant that there had been any such basis for the issue of such an order.

R. (Butler) v Navan U.D.C. [1926] I.R. 466 at 470,Point Exhibition Company v Revenue Commissioners [1993] 2 I.R. 551 applied.

5. That although it was acknowledged not only by the respondent but by other immigration authorities, that considerable doubt always surrounds the authenticity of identity documents issued in the name of the Somali authorities at foreign embassies, it was not unreasonable or irrational for the respondent to insist upon the presentation of such a passport when an applicant acknowledged that it could be obtained. That was on the basis that it was but one of a number of steps required to be taken in order to establish some verifiable basis for the identities claimed and the family relationships asserted. The degree of weight to be attributed to it ultimately would depend on the cumulative effect of other proofs and information offered and particularly on any eventual DNA results but the mere fact that passports were requested or suggested as part of the material the Minister wished to consider did not mean that the request was irrational or unreasonable especially when the applicant had previously given the Minister to understand that they were being applied for.

Mr. Justice Cooke

1 This is the judgment of the Court on the substantive hearing of an application for judicial review seeking an order ofmandamus and declaratory orders in respect of an application by the above named applicant under s.18 of the Refugee Act 1996, (as amended) for family reunification as a refugee with her husband, two sons and an elderly mother who are said to be, like her, nationals of Somalia but who are now living in Ethiopia as undocumented refugees from that country. The applicant arrived in the State in 2007 and successfully sought asylum having been granted a declaration of refugee status by the respondent Minister in May 2008.

2 By order of the Court (White J.) of the 7^th September, 2011, leave for this application was granted to apply for those reliefs on the basis of the nine grounds set forth in the statement of grounds dated the 6^th September, 2011.

3 Although nine grounds are thus set forth in the statement of grounds the essential issue which is raised for the decision of this Court on the hearing has been directed at the reasonableness or rationality of the apparent decision of the Minister to insist upon the production of passports, or at least, identity documentation in respect of the family members concerned and in particular the applicant's husband when, it is argued, the Minister has made it quite plain that his policy is to reject by way of proof for the purposes of s. 18, passports or personal identification documents issued to Somali nationals by Somali embassies abroad including the embassy of that country in Addis Ababa. Although leave was granted on the basis of a primary claim for an order of mandamus to compel the Minister to make a decision on the application, it was effectively conceded by counsel for the applicant at the hearing that the Minister had not actually refused to make a decision and that he had not delayed the making of a decision to such an extent as would constitute in law a prima facie indication of a refusal to discharge the public duty which is at the basis of the entitlement of the High Court to issue an order of mandamus. In practical terms the debate at the hearing reduced itself to a claim on behalf of the applicant that something in the nature of an impasse had been reached in the exchanges with the Minister on the application that could only be unblocked, as it were, by some form of declaratory relief from the Court as to what forms of proof of identity and paternity the Minister was entitled reasonably to require of the applicant for the purpose of satisfying him that the applicant was validly entitled to the necessary grant of family reunification authorisation and travel visas under s. 18(3) of the Act of 1996.

4 Before addressing the specific legal issues raised by this application some general observations may be useful. The first relates to the legal context in which the issues arise. There is no specific "right" in international law to family reunification. It is strongly encouraged in the advices and guidelines of the UNHCR as a process which facilitates declared refugees to integrate in the long-term into their countries of asylum. Thus the arrangements for family reunification in s. 18 of the Act of 1996, do not have a...