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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> R. (D.) v. Minister for Justice, Equality and Law Reform [2001] IEHC 188 (6th December, 2001)
URL: http://www.bailii.org/ie/cases/IEHC/2001/188.html
Cite as: [2001] IEHC 188

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R. (D.) v. Minister for Justice, Equality and Law Reform [2001] IEHC 188 (6th December, 2001)

THE HIGH COURT
JUDICIAL REVIEW
2001 No. 311JR
BETWEEN
D. R.
APPLICANT
AND
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENT
Judgment of Mr. Justice T. C. Smyth delivered the 6th December, 2001

1. The Applicant, a Romanian national sought asylum in the State on his arrival on 31st December, 1999. A questionnaire was completed on 5th January, 2000 and on being translated into English on 20th April, 2000 was received by the Respondent on 25th April, 2000. The Applicant was a married person whose wife and child were at the date of the questionnaire resident in Romania. He had a brother-in-law in Ireland.

2. The Applicant’s case is that he had no communication with or from the Respondent as between 25th April, 2000 and 25th August, 2000 when, by letter of the latter date from the Respondent, the Applicant was notified of the Respondent’s proposal to deport him on the ground that the Applicants case had been deemed abandoned.

3. At the time of the completion of the questionnaire the Applicant gave his address as “c/o Carne Holiday Centre, Wexford.”. There is an obligation under the Aliens Order 1946 (S. I. No. 395 of 1946 article 11 (6) that aliens register any change of address from that first given. The undisputed evidence of the Respondent is that on the completion of the ASY 1 form in early January the Applicant was furnished with an Information Leaflet and Procedures for Processing Asylum Claims, (which specifically require the Applicant to notify the Department of Justice, Equality and Law Reform of any change of address) and at the same time the Applicant acknowledged receipt of Change of Address forms.

4. I am satisfied and find as a fact that on or at the following dates, 29th March, 22nd May, and 13th July, 2000 letters were sent by pre-paid registered post to the Applicant to the address notified to them by the Applicant and to the address that the Respondent ascertained by their own efforts where the Applicant was in receipt of Supplementary Welfare Allowance (because the letter of 29th March, 2000 was returned by the Postal Authorities): both letters addressed to the address supplied by the Eastern Health Board, i.e. Flat 2, 3, North Richmond Street, D. 1. were returned to the Respondent the latter been noted as “N/A 19th July 2000” and again “Not called for” that letter was returned by the Postal Authorities ‘Returned Letter Section, Dublin’ on 28th July, 2000 and received by the Respondent on 31st July, 2000.

5. The letter of 13th July made it clear that consideration was then being given to deem the application for asylum abandoned due to the failure to attend for interview. Particular attention was drawn to the provisions in the procedures for Processing Asylum Claims in Ireland (the Hope Hanlon procedures) which provide:-

“Abandoned Cases
20. Where an applicant fails to attend at an interview or is otherwise uncontactable without good and sufficient reason his or her case will be considered to be abandoned. A notice to this effect will be sent to the Applicant at his or her last known address by registered post.”

6. Notwithstanding that two registered letters of 22nd May and 13th July, 2000 addressed to the Applicant were returned in post, a further letter identically addressed but sent by ordinary post was received by the Applicant. The letter (inter alia) stated:-

“I am directed by the Minister for Justice, Equality and Law Reform to refer to your application for refugee status and to this Department’s letter of 13th July, 2000 giving notice of the intention to deem the application abandoned.
As this Department has not received from you in writing reasons why your application should not be deemed abandoned your application for refugee status will receive no further consideration in accordance with the Procedures for Processing Asylum Claims, paragraph 20.
As a result of this decision , the Minister for Justice, Equality and Law Reform proposes to make a deportation order in respect of you under the power given to him by Section 3 of the Immigration Act 1999”.

7. The Respondent became aware of the Applicants more correct address on 31st August, 2000 when the Applicant called to the Respondent’s Department and gave the full accurate address as Flat 1, 3 North Richmond St., D. 1. and thereafter correspondence was sent to that address.

8. Correspondence touching upon the issue and receipt of the letter hereinbefore referred to was exchanged between the Applicant’s solicitor and the Respondent’s Department from 11th September 2000 to 26th October 2000, the letter extended for a further fifteen working days the period within which an application ‘for leave to remain on humanitarian grounds’ under 5.3 of the Act of 19999 might be made. Such an application was made by letter dated 13th November, 2000. These were not successful and a Deportation Order was made on 19th April, 2001 and a letter of Notification was dated 27th April, 2001, which (inter alia) states:-

“The reasons for the Minister’s decision are that you are a person whose refugee status has been refused and, having had regard to the factors set out in Section 3 (6) of the Immigration Act, 1999 including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this State”

9. The following submissions were made on behalf of the Applicant:-

1. The letter sent to the Applicant informing him of the fact that his application was deemed abandoned were sent to the wrong address.

10. I am unable to accept this submission, as the evidence on the facts is to the contrary effect and I so hold.

2. The notice required in the Hope Hanlon procedure to inform the Applicant that ‘the case’ is abandoned was not sent to the last known address by registered post.

11. The evidence in the affidavits does not bear out this assertion. Indeed if there was a failure in this regard it is because of the Applicant’s own failure to comply with the legal requirement to notify his change of address.

3. The Applicant’s solicitors request that the Applicant be permitted to re-enter the asylum/refugee process or procedure was frustrated by the failure of the Respondent to make available the entire of the Applicant’s file.

12. This submission has it genesis in the letters of 11th, 20th and 26th September, and 13th and 14th November, 2000. There was no legal obligation (or constitutional or natural justice grounds) to permit the Applicant to re-enter the process at the point of interview. An additional latitude was extended in respect of the Section 3 of the 1999 Act application. It is clear from the letter of 11th September 2000 that the Applicant’s solicitor had been appraised of the existence and purport of the letter of 13th July, 2000 and this was confirmed and spelled out in the Respondent’s letter of 20th September, 2000 and I reject the submission as unfounded.

4. The requirements of Section 3 of the Act of 1999 in respect of the deportation order were not complied with in that the letter of Notice refers to:- “...........including the representations received on your behalf.”
When nonesuch were made.

13. This matter has been decided in (Doyeni v. The Minister for Justice, Equality and Law Reform & Anor : (unreported 29/11/2001.) Whatever was stated in the ASY 1 form and Questionnaire amount to representations, which expression is not used as a term of art.

5 That the refused application was not considered at all because it was deemed to have been abandoned

14. This is not a sustainable proposition because the letter of 25th August 2001, received by the Applicant indicates that the application will receive “no further consideration”, it had been considered but would not be further considered because of the abandonment of the Applicant and it was a result of this decision that the Respondent proposed to make a Deportation Order.


6. That at the time of abandonment the Applicant had not had the benefit of legal advice.

15. This may be true. His complaint is that he was not aware of the ‘abandonment’. Even if he had been so aware, he had been given the ‘Refugee Legal Service Information Leaflet on 7th January, 2000.

7. That the Applicant’s ‘case’ had not been heard and that it was unreasonable, that it had not been heard and that it was in the interest of the common good that he be permitted back into the asylum process.

16. The concept and the protection of the common good as urged are at variance with the Supreme Court decision in P B & L (unreported 31st July, 2001).

17. The Respondent’s submissions were that:-

a) The Applicant was the author of his own misfortune
b) The decision in P. B. & L. V. The Minister for Justice, Equality and Law Reform (unreported 31st July, 2001) governs the issue on the Deportation and Notice.
c) The decisions in Poppa v. The Minister for Justice, Equality and Law Reform & Ors (unreported 18st August, 2001) - Finnegan J.), the Supreme Court in the Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I R 360 at 395 holding that the Applicant “is not a passive participant in the process” and the case of Omidiji v. The Minister for Justice, Equality and Law Reform & Ors (unreported 22nd November, 2001) are in point and govern the entire issue of the correspondence service being deemed good.
d) That the provisions of paragraph (20) of the Hope Hanlon procedure were fully complied with.
e) If the issue of the availability of the Applicant’s file were of moment, it is remarkable that the letter of 13th November, 2000 was never followed up.
f) That the representations set out in the Applicant’s solicitor’s letter of 11th September, 2001 were appropriately embraced by the expression:-
“......Including the representations received on your behalf”
(immediately preceding the citation is from the letter of Notice of the making of the Deportation Order dated 27th April, 2001).

18. I am satisfied and find as a fact and a matter of law that these submissions are well founded, and that the full and proper procedures according to the Procedures for Processing Asylum Claims were followed prior to considering whether the Applicant’s application should be deemed abandoned and that such difficulties as may have arisen were within the control of the Applicant .

19. I am not satisfied that there are substantial grounds for contending that the decisions and order referred to in the reliefs sought ought to be quashed neither am I satisfied that either a stay or Injunctive Order should be made as prayed for. I dismiss the application.

© 2001 Irish High Court

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URL: http://www.bailii.org/ie/cases/IEHC/2001/188.html