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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> S. (C.E.) v. Chairperson of Refugee Appeals Tribunal & Ors [2002] IEHC 166 (4 October 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/166.html Cite as: [2002] IEHC 166 |
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THE HIGH COURT
(JUDICIAL REVIEW)
Record No. 825JR/2001
Between/
C. E. S.
APPLICANT
AND
THE CHAIRPERSON OF REFUGEE APPEALS TRIBUNAL and THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and IRELAND
Respondents
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON FRIDAY, THE 4TH DAY OF OCTOBER 2002
MR. JUSTICE SMYTH: The Applicant is a Cetatean Roman from Romania. Her stated date of birth is 24th December 1974. She entered the State on 14th August 2001, using her then name C. E. I., as a single person. She was the holder of a Romanian passport. A completed ASY1 form indicates that her travel route to Ireland was noted as Romania/France/Rosslare: she had paid a "travel facilitator" $2,000, the form records her leaving her country of origin on 21st July 2001 and arriving in the State as stated. On 14th August 2001, on claiming asylum in the country, she gave as her "Immediate Family Details" loan S., who is stated to be her partner, whose date of birth is given as 5th August 1967, and who was as at 14th August 2001 located in Ireland. On the same day she was given a number of documents, including a notice under Article 3(3) of the Dublin (Implementation) Order 2000, and other leaflets giving information concerning the asylum and immigration system.
In the form of Questionnaire completed by the Applicant on 20th August 2001, she disclosed that (a) she was engaged, (b) spoke "English average", and (c) her educational standard was as to four years spent in the University of Economics, Science, Marketing and Management. She had been a Customs Inspector from 1998 to 2001 at Airport Customs, Timisoara, and resigned from that post. She had held a Schengen visa, which she obtained to enable her to enter and visit Germany (valid from 20th July 2001 to 18th August 2001). Like many of the other cases which have come before the court of persons with Schengen visas permitted to enter and visit one EU country, she availed of the facility to go about countries in the EU as if she had as a right the same rights as a national of a State which is a member of the EU. In response to the query as to whether she had ever claimed asylum in any of the transit countries, which were Hungary, Austria, Germany and France, she replied "NO", and to explain why she did not do so stated:-
"No, because I considered that it was not necessary, and when I made up my mind to take the decision, I considered that Ireland is a country that could give me a solution for my problems."
When asked to give details as to whether she had any relatives or friends in Ireland, she said:-
"My fiancee, my future husband (we are together for eight years), he is resident for the last six years in Ireland and currently we live together and we are happy that we are together forever."
The Applicant, having held a Schengen visa issued by Germany, a request was sent to the German authorities asking them to accept responsibility for examining the Applicant's application for asylum in accordance with Article 5(4) of the Dublin Convention on 28th September 2001. The German authorities replied by fax, received 9th October 2001, stating that they would accept the Applicant back to the Federal Republic of Germany for examination of her asylum application in accordance with Article 5(2) of the Dublin Convention.
There is a note attached to the German acceptance which is to the following effect:-
"Should the transfer of an alien not be possible within three months, a later transfer to Germany can only be accepted if there are no circumstantial evidences of a change in the responsibility — ie, in form of leaving the territory of the Convention."
The position is that the judicial review proceedings must be regarded as suspensory and I do so declare so far as the court is aware at the hearing and as at date of judgment the Applicant is still in the State and therefore within the territory of the Convention.
By letter dated 10th October 2001, the Refugee Applications Commissioner (hereinafter referred to as 'the Commissioner') notified the Applicant that it had been determined that her application for refugee status is one that should properly be examined by Germany in line with the provisions of Article 5(2) of the Dublin Convention.
The reason for the determination was given and that was that in accordance with Article 5(2) of the Dublin Convention the decision was made on the basis that she was in possession of a valid visa issued by Germany at the time the application for asylum was made in Ireland and Germany are responsible for examining the application for asylum. She was informed that the German authorities had agreed to her return under the Dublin Convention for the purpose of examining her application for asylum. A copy of the acceptance was forwarded to her and it was indicated that the decision could be appealed within five working days of the date of the notice. She was advised as to what steps to take concerning the appeal.
A Notice of Appeal was filed on 6th October 2001, which is referred to as Exhibit A in the affidavit of the Applicant sworn on 5th December 2001. The letter of appeal indicated that the legal advisor to the Applicant needed sight of the visa or a legible copy thereof in order to adequately advise and formulate additional grounds of appeal. The case made in the proceedings/ prior to affidavits being filed by or on behalf of the Respondent, was that without waiting for additional grounds and without the grounds of appeal having been fully articularised, matters went ahead to a hearing.
The obligation to particularise the appeal and be as fullsome in its regard was a matter that had to be completed or complied with within five days. The additional grounds would merely supplement or refine grounds already formulated. The pleadings put forward forms of complaint in this regard, but the reality is that on 25th October 2001 the Applicant's legal advisor was sent a copy of the passport which included a copy of the visa. The postal records show that the documents were in fact posted on 25th October and there is a signed receipt therefore dated 26th October 2001. After a period of a week to ten days lapsing and no response having been received from the Applicant's legal advisor, the Tribunal nominated a Member, by letter dated 8th November 2001, to consider the appeal. The Applicant got married on 13th November 2001 (a fact made known to the Tribunal by letter dated 28th
November 2001 from the Applicant's legal advisor). The Member of the Tribunal assigned to consider the matter did so on 15th November 2001 (a month almost save a day from the submission of the Notice of Appeal). I am satisfied and find as a fact that the Applicant was not deprived of the opportunity for adequate and considered legal advice by the Tribunal making a determination and that there was afforded to the Applicant adequate opportunity to receive legal advice or adequate information on which to base the advice. No explanation has been tendered as to why in the course of the month, at least in the ten days or more of which the additional information by way of visa and passport that had been complained about were not commented upon or submissions made in their regard. Furthermore, I am satisfied and find as a fact that neither the Commissioner nor the Tribunal failed to afford the Applicant the type of hearing to which she was entitled. The application being considered and an appeal being deliberated upon were not referable to the asylum application but rather to the venue in which the asylum application or claim would be considered. The Applicant was not denied fair procedures and, in my judgment, the hearing of the 'hearing', if it may be so described, was in accordance with the requirements of law and constitutional and natural justice. I am similarly of the view that neither the conclusions nor determinations reached by the Tribunal were illegal or unfair or invalid for the reasons sought to be advanced on behalf of the Applicant. There is no evidence to sustain the ground that the Tribunal affirmed the decision of the Commissioner without due consideration of the Applicant's case or without affording the opportunity for adequate legal advice. The recommendation of the Member having been made on 15th November 2001, letters were written on 16th November 2001 to the Applicant and to her solicitor.
The letter sent to the Applicant was sent by registered post informing her that the Tribunal had determined to affirm the determination of the Commissioner and enclosing a copy of the decision of the Tribunal of the previous day.
This is a Dublin Convention case and not an ordinary asylum claim being considered within the State. The provisions of Section 3 of the Act of 1999 are quite clear. The letter of 16th November 2001 is the decision to transfer the application for asylum to Germany. Accordingly, the Applicant is "a person whose application for asylum has been transferred to a Convention country for examination pursuant to Section 22 of the Refugee Act 1996 (vide Section 3(2)(e)." Accordingly, the provisions of Section 3(3) of the Act of 1999 do not apply because of the provisions of Section 3(5)(b) of the said Act of 1999. It is the application that is transferred by the decision of the Tribunal, the question of the transference or determination to transfer the person is a matter for the Minister to do by Ministerial Order, which he did on 23rd November 2001. Such a person has no right to make representations under Section 3(6) of the Act of 1999 because of the fact that paragraph (b) of sub-section 3 of Section 3 of the Act of 1999 is inapplicable. The Minister, in making the Deportation Order of 23rd November 2001, could only have regard to those matters set out in
Section 3(6), of which notice had been given to him by the Applicant and/or her legal advisors during the course of the conduct of matters from her arrival in the State to the date of determination by the Tribunal on 16th November 2001.
In acknowledgment of the fact that the correspondence enclosing the marriage certificate came into the State Authority after 28th November 2001, the Tribunal re-issued the decision letter of 16th November 2001 on 7th December 2001 to the Applicant, but unfortunately described that document in a letter addressed to the Applicant's solicitors of the same date, as a "fresh decision". From the date of the issue of the letters of 7th December, it is quite clear that the Respondents were unaware of the fact that proceedings had been filed seeking judicial review by the Applicant. The proceedings sought to impugn the decision of the Tribunal of 15th November 2001 and the Deportation Order of 23rd November 2001 and sought injunctive relief from the making of any further decision or taking any action consequent on those Orders or decisions and also sought to put a stay on the operation of the decisions pending the determination of the judicial review proceedings.
The misdescription in the letter of 7th December 2001 to the solicitor, referring to a "fresh decision" when referring to the decision of 15th November 2001, first conveyed in the letter of 16th November to both Applicant and her solicitor, was contended by counsel for the Applicant to be an error on the face of the record such that should accordingly lead to an Order of Certiorari. I reject this submission for the following reasons:-
1. The letter of 7th December 2001, to the Applicant, is expressly headed "Re — Issued Decision Letter" and notes at its foot that it was "previously issued on: 16th November 2001".
The obligation on the Tribunal to give notice in writing of its decision in this case arose under Article 7(1) of the Dublin Convention (Implementation) Order 2000 (SI No. 343 of 2000). There is no obligation — as the Tribunal did in this case — to issue a courtesy copy of the decision to the Applicant's legal advisors.
2. Even if there had been a duty on the Tribunal to notify the solicitor of the decision of the Tribunal, this had been done in the letter of 16th November 2001. The text of the letter of 7th December 2001, addressed to the solicitor, explains why it was necessary to re-issue the letter of 16th November 2001 to the Applicant. To take the one sentence and isolate it, "a fresh decision has now issued to your client", out of context is an affront to common sense and contrives to attach a wholly artifical meaning to the sense of what had taken place.
3. Even if the strained construction contended for were correct, it is not an error in the full context of the case. However, in my judgment,
what is stated by Carroll J in Coras Iompair Eireann -v- An Bord Pleanala (unreported 22nd February 1994) is in point:-
"... the error is an error of fact and in order for Certiorari to lie, an error of fact must produce an error of law. It seems to me that the mistake of fact is not a mistake that goes to the jurisdiction of the Bord. The Bord, by this mistake, has not given itself power which otherwise it would not have."
In the context of the Act of 1996, this decision was considered by 0'Donovan J, in AB-M -v- The Minister for Justice, Equality and Law Reform (unreported 23rd July 2001). The instant case is distinguishable from that of AB-M where there was an error on a vital factor in the make-up of the actual decision itself.
It was further contended that the Tribunal had erred in law in failing to await such further or other submissions as the Applicant might wish to have made on receipt by the solicitor of the passport and visa. The authority relied on was O'Sullivan -v- Joseph Woodward & Sons Limited [1987] 1 IR 255. In my judgment, that case is quite distinguishable not only on its facts but on the applicable law. There the parties had agreed to have private law differences resolved by arbitration. The arbitrator was accused of misconduct of the proceedings in that he had stated that he required additional evidence to enable him to decide an issue and notwithstanding that and the fact that the proceedings had not been formally closed and that he had not made an award and so he was not functus officio, he nevertheless refused to hear evidence material to the issues to be decided.
In the instant case/ it is one of public law, there was no refusal to hear or take evidence. The Tribunal, once it made its decision in that regard, it was functus officio and the period of time up to which the Applicant could have put in whatever submissions were intended (never averred to or set out in any document) was a month from the date upon which entitlement to appeal arose and therefore considerably outside the five-day period provided for in Article 7(2) of the Dublin Convention (Implementation) Order 2000.
It was also submitted on behalf of the Applicant that the court should apply to the facts of the instant case the decision of the Supreme Court in
Stefan -v- The Minister for Justice, Equality and Law Reform [2002] 2 ILRM 134. In my judgment, that decision is clearly distinguishable from the instant case. In Stefan, the Applicant had given certain information in the Questionnaire form, but there was an omission from the translated version thereof upon which a first instance decision was made. The decision of Kelly J, in the High Court, affirmed by the Supreme Court, took the view that the omitted information could not be regarded as immaterial — being the reason given by the Applicant as to why he was seeking asylum. In short, he took the view that there had been a breach of fair procedures. On the facts of the instant case, that does not arise.
Between December 2001 and March 2002 there was a series of events that is not really necessary to make any definitive judgment upon as to whether, as I believe the papers bear out, the Applicant was served with the Deportation Order and was requested to attend at the Garda Immigration Bureau for the purpose of making arrangements for leaving the State. Whether she did or did not attend at the time and place as requested is for present purposes not of great importance, because ultimately she remained within the jurisdiction up to the date of the hearing of the application. The documentation lodged on 5th March, some four days before the hearing, was designed to capitalise on what was clearly an error in the letter of 7th December 2001/ addressed to the Applicant's solicitor in making reference to a "fresh decision". There was only decision. Indeed, the recommendation/decision of
the Tribunal is an affirmation of the decision of the Commissioner made in the first instance. The proceedings of 5th March also sought to join as an Applicant the Applicant's husband. No good reason was advanced for seeking this amendment save to rely on such family rights as the Constitution provides in respect of both husband and wife, and it was quite sufficient for the wife, albeit having married since the application for refugee status was made in the first instance in August 1999, had married. In Mahmood -v- Secretary of State for the Home Department [2001] UK HRR 30, at 329, Philips MR, collating a range of decisions drawn on the much wider canvas based on the Commission and European Court of Human Rights regarding the potential conflict between respect for family life and the enforcement of immigration controls, came to the following conclusions:-
"1. A State has a right under international law to control the entry of non-nationals into its territory, subject always to its Treaty obligations.
2. Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple.
3. Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe Article 8 provided there a no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family
4. Article 8 is likely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other member of the family to follow that member expelled.
5. Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates Article 8.
6. Whether interference with family rights is justified in the interest of controlling immigration will depend on:-
(i) the facts of the particular case; and
(ii) the circumstances prevailing in the State whose action is impugned."
In the present there is no inhibition on the husband relinguishing his temporary residence permit in Ireland to go to Germany while the question of the Applicant's asylum claim is being examined there or to return to a country of origin. Both parties knew and must have appreciated that they were each in a precarious position as at the date of their marriage concerning their perceived or considered or possible entitlements of remaining in Ireland. I have reconsidered the decision in Osayande and Lobe -v- The Minister for Justice, Equality and Law Reform (unreported 8th April 2002) and see no reason on the basis of the submissions made to grant leave to apply by way of judicial review to the Applicant in this case. Accordingly, leave on all counts will be refused.
END OF JUDGMENT
