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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> R.(A.) v. Minister for Justice, Equality and Law Reform [2002] IEHC 160 (19 March 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/160.html Cite as: [2002] IEHC 160 |
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THE HIGH COURT
DUBLIN
JUDICIAL REVIEW RECORD NO 2001/726JR
Between
A R
Applicant
And
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
Respondent
And
D K
Applicant
And
Between 2001 141 IA
THE MINSTER FOR JUSTICE EQUALITY AND LAW REFORM
Respondent
APPROVED JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON TUESDAY, 19TH MARCH 2002
MR. JUSTICE T.C. SMYTH DELIVERED JUDGMENT ON TUESDAY, 19TH MARCH 2002:
MR. JUSTICE SMYTH: The hearing of these two cases took place within a few days of each other. While the parties were represented by different counsel in each case, both concerned issues arising from a consideration of Article 5.4 of the Dublin Convention. Accordingly for reasons of convenience I have considered it appropriate to deal with both cases in one judgment.
THE CASE OF R.
This applicant, a Belarus national has a date of birth 16th January 1971. He asserts that he arrived in Ireland on 9th July 2001 through Shannon Airport. The Garda Siochana Immigration Unit, Detective Sergeants' office at Shannon Airport have a record of the arrival from Minsk of flight BZ 897 on 9th July 2001 at 10.35 am. The number who disembarked from the flight was 162, of whom are all accounted for in the official records.
The records do not show either –
(1) R , A , or
(2) K, D
as having arrived on that flight on that date. The Applicant at Question 74 signed on 17th July 2002 confirms that he came to Ireland together with D K . There as no other flight from Belarussia on that date.
The Applicant made an application for refugee asylum pursuant to Section 8 of the Refugee Act 1996 (as amended) at the office of the Refugee Applications Commissioner in Dublin.
There is a controversy concerning the Applicant's passport. The Applicant (who does not personally swear any affidavit) asserts that he surrendered the passport to the Irish authorities to whom, when and where all unspecified, in this regard as in others I draw attention once again to the observations of Hardiman J. in the judgment of GK and others re: The Minister for Justice, Equality and Law Reform (unreported, 17th December 2001, pages 11, 12) wherein the matter of tendering evidence and explanations of delay he observed as follows:
"It is preferable that explanations of this kind should be put before the court on affidavit of the applicants or one of them rather than by their solicitor on a hearsay basis."
The Respondent in the person of Miss Sheila Ryan avers that neither passport or ID card were produced by the Applicant, I accept what is stated concerning the ID card because it is consistent with the information in the Questionnaire signed by the Applicant. Regarding the passport - the details of which are given in the Questionnaire, it is clear that while the Respondent may not have received it to retain or on a surrender basis - someone, Applicant or Respondent photocopied some pages. Miss Ryan's affidavit avers that what was produced to the Irish authorities were the copy pages.
The ASY-1 form signed by the Applicant as confirmation of the correctness of the information contained therein, states that the reason the Applicant travelled to Ireland was to seek asylum, yet his flight ticket indicates that it is a monthly return ticket from Belarus to Ireland, the return date being 9th August 2001.
Coincidentally he appears also to have had a ticket for Havana in like character. The airline ticket produced does not show either that it was used or that the Applicant travelled using the ticket. There is no documentary evidence of a Boarding Card. There is no exit or more particularly Entry Stamp for either Shannon Airport or into or out of the Netherlands.
The reason he gave for seeking asylum is "Political". He received on 11th July 2001 a number of documents; of which he acknowledged receipt including:
"A notice under Article 3(3) of the Dublin Convention (Implementation) Order 2000."
On 17th July 2001 the Applicant completed the form of Questionnaire, from the information given in response to Question 84 (with much detail between 26th April 2000 and 6th July 2001) it is clear that the Applicant and D , K were clearly closely involved together in political activity which did not find favour with the State authority or authorities in Belarus and that on 10th July 2001 the Applicant was to present himself to Lida I Investigation Department for the initiation of a criminal charge against the Applicant for being in "the border zones".
In the case of this Applicant there was a Schengen visa issued by the Netherlands on the copy extract of the passport provided by the Applicant. Correspondence was entered into with the Netherlands with a view to a possible transfer under the Dublin Convention where it had been earlier refused. On 7th September the Commissioner made a formal request to the Netherlands under Article 5 of the Dublin Convention, for the purposes of examining his asylum application. The transfer under the Dublin Convention was accepted by the Netherlands under Article 5.4 of the Convention on 18th September 2001.
The Commissioner decided that the Applicant's asylum application should properly be examined in the Netherlands, and the Applicant was so notified on 19th September 2001. The Applicant appealed this decision to the Tribunal. The Notice of Appeal stated that the passport was given to the office of the Commissioner and that the stamps contained therein would prove that the Applicant had been to the Netherlands and returned to Belarus in March 2001. In a very detailed chronicle of events of March/April/May 2001 set out in response to Question 84 in the Questionnaire there is no reference whatsoever of any kind to leaving Belarus and going to and from the Netherlands. The items in March 2001 refer to (a) joining the BNF and on 25th March 2001 participating in a Freedom March in Minsk, and three days later giving evidence in court, and receiving a court warning in relation to that.
In a letter of 15th August 2001 a Mr. Liam Preston addressed a memorandum to Miss Ryan and Mr. Brennan HEO, it was clearly an earlier step in the process of ascertaining which (if any) State might respond to an enquiry under the Dublin Convention and reference is made to the Applicant thus:
"The Applicant had in his possession a valid Belarus passport containing a Schengen visa {No. BNL 4183698) which was issued by Belgium in Warsaw, Poland ... It was issued on 15/02/01 and was valid from 15/02/01 to 17/03/01."
In the events Belgium declined responsibility because "the person concerned has obtained a visa that was issued to him by Holland".
In the letter of Appeal to the Tribunal against the determination of the Commissioner, three grounds of appeal were advanced. For present purposes only Ground 1 need be considered (for argument on the hearing of this case was centred and confined thereto).
"Ground 1: It is submitted that Article 5.4 Dublin Convention is not pertinent to this case. Indeed the appellant was in possession of a visa issued by the Netherlands Authorities which had expired less than six months previously. However the appellant instructs that in or about March 2001 he went to the Netherlands, and stayed there for two weeks and then went back to Belarus. The stamps in his passport, which he submitted to the Refugee Applications Commissioner, give proof of this journey. On the 9th July 2001 he took a flight from Minsk to Shannon and travelled to Dublin where he applied for asylum (as proof the appellant submitted the plane ticket to the Refugee Applications Commissioner, see also attached document)."
Article 5.4 of the Dublin Convention provides:
"Where the applicant for asylum is in possession only of ... one or more visas which have expired less than six months previously and enabled him or her actually to enter the territory of a Member State, the provisions of paragraph 1, 2, and 3 of this Article shall apply for such time as the alien has not left the Member States.
Since the appellant has left the territory of the Member States after he had used the visa to actually enter the Netherlands, Article 5.4 and 5.1 Dublin Convention do clearly not apply to this case."
It is the argument based on this ground of appeal that was relied upon by Mr. Power for the Applicant in this court. While keeping very firmly to the forefront of my mind that what is before me is an application for judicial review, there are features on the facts (some already averted to) e.g. no sworn evidence of the Applicant, no explanation or reference to the Questionnaire, to the Schengen visa or its purposes or circumstances or being in the Netherlands, the want of exactitude is so vital and so central a point to the argument in paragraph of Miss Boehn's sworn affidavit of 2nd November 2001.
THE CASE OF K.
This Applicant is also a Belarus national and an asylum seeker and arrived in the State on 9th July 2001. By letter dated 20th September 2001 from the second-named respondent (hereinafter referred to as "the Commissioner") the Applicant was informed that a decision had been reached that the Applicant's application for refugee status was one which should properly be examined by Belgium in line with the provisions of Article 5.4 of the Dublin Convention. The reason given for that determination was that the Applicant was in possession of a visa for Belgium which had expired less than six months previously.
The Applicant apparently instructed a solicitor in the Refugee Legal Services to appeal the decision of the Commissioner, and this was done on 26th September 2001 setting out a number of grounds of appeal. On the hearing of this case before me, the Appellant, through counsel elected and determined that he did not wish to seek any relief against the first-named respondent (the Minister) but would confine his case to that set out in paragraph (5) of the Grounds of Appeal to the third-named Respondent (hereinafter referred to as "the Tribunal") and it reads as follows:
"5. It is submitted that the Dublin Convention in any event is not pertinent to this case, as the appellant did not enter Belgium during the period of his visa. Article 5.4 accordingly is not applicable. Article 5.4 of the Dublin Convention states that a person must be enabled to "actually to enter the territory of a Member State". Our client instructs that he did not enter Belgium."
In recording the facts of the case in his decision dated 16th October 2001, the member of the Tribunal noted, concerning the Applicant:
"He had in his possession a valid Belarussian passport which contained a Schengen visa issued by the Belgium Authorities in Moscow, Russian Federation on 7th December 2000. The visa was valid from the 10th December 2000 to the 24th March 2001."
The features of the facts averted to, in this case, on the facts, though inverse to the case of Rymdzionck are germane to the court on an application for judicial review. In my judgment it is as probable as not that the two Belgium visas issued from different sources (i.e. Warsaw and Moscow) in respect of two extremely closely associated politely motivated young men whose visas permitted entry into Belgium for a period whose date of expiry was within a week of each other is not pure coincidence.
Mindful that each case must be considered on its own facts, and that the function of the Court is to review the decision of the Tribunal (for the decision of the Commissioner whose decision in each case was appealed against so as to overturn or supersede the decision of the Commissioner - "may well have merged in the decision on appeal to the same effect" (per Hardiman J. delivering the judgment of the Supreme Court in GK and others -v- the Minister for Justice Equality, Law Reform and Others (unreported 17th December 2U01). It is appropriate to continue for the sake of completeness the text of the second paragraph of Article 5.4 of the Dublin Convention which reads as follows:
"Where the Applicant for asylum is in possession of one or more residence permits which have expired more than two years previously or one or more visas which have expired more than six months previously and enabled him or her to enter the territory of a Member State and when an alien has not left the Community territory the Member State in which the application is lodged shall be responsible."
THE CONVENTION
Article 5.4 of the Dublin Convention, which in its components I have already cited should be approached as did the House of Lords in Adan -v- The Secretary of State for the Home Department [1998] 2 WLR 702 in the leading speech of Lord Lloyd of Berwick at page 707 in the context of the Convention and Protocol relating to the status of refugees:
"... we are here concerned with the meaning of an international convention. Inevitably the final text will have been the product of a long period of negotiation and compromise. One cannot expect to find the same precision of language as one does in an act of Parliament drafted by parliamentary counsel. I agree. It follows that one is more likely to arrive at the true construction of {Article 1A(2)] by seeking a meaning which makes sense in the light of the convention as a whole, and the purposes which the framers of the Convention were seeking to achieve, rather than constructing exclusively on the language. A broad approach is what is needed, rather than a narrow linguistic approach."
While indebted to counsel for their researches and referring to passages in Maxwell and The Interpretation of Statutes and mindful that one is not at large in approaching the question of the interpretation of a Convention; I take the passage cited from the speech of Lord Lloyd to be directed to a purpositive approach, which is not novel in this jurisdiction.
The Convention, in Article l(f) defines an Entry Visa in these terms it is "an authorisation or decision by the Member State to enable an alien to enter its territory, subject to other conditions being fulfilled." Article 3(2):
"That application shall be examined by a single Member of State, which shall be determined in accordance with the criteria defined in the convention. The criteria set out in Articles 4 to 8 apply in the order in which they appear."
It is common case that until one comes to Article 5.4 one is not concerned with a visa which has expired less than six months previously and that both applicants were persons who were holders of visas that had expired less than six months previously. The contention of Ryndzionck was that he had a visa entered and exited the Netherlands while it was valid and when he left to come to the State he left from Minsk not as an "alien who had not left the territory of the Member States". The contention of the K. was that though he did have at one time a valid visa to enter Belgium he never in fact actually entered Belgium and therefore the Dublin Convention did not apply.
The expression "enabled him or her actually to enter" is to be contrasted to such phrases as
(i) "has irregularly crossed the border"
(ii) "the Member State thus entered" in Article 6, and in article 7:
"After legally entering".
No authority on the interpretation of Article 5.4 has opened to the court. In my opinion the expired visas in each case must have been one which indeed enabled entry, which when one refers back to the expression in Article l(f) of Entry Visa must have been such that there was no further or other entry conditions requiring fulfilment. The meaning of actualiter in late Latin viz. practically seems the nearest sense of what was intended by the text.
In the course of the judgment of the Supreme Court delivered in GK -v- The Minister for Justice Equality & Law Reform on 17th December 2001 Hardiman
J. at pages 11/12 of the typescript referred to the desirability of having evidence at first-hand, which I have already cited, I need not repeat again. In neither of the cases before the court has the Applicant sworn an affidavit (which if leave had been sought to cross-examine and given) the protection or shield of 'I am instructed that' could be fully and properly tested. There is no evidence in the documentation in fact signed by the Applicants personally that the version of affairs put before the Tribunal was factual - this is more particularly true in the case of Ryndzionck, the absence of the pertinent details which I have already referred to. The fact that the Tribunal accepted at face value what was stated in the Notice of Appeal does not signify verification of the facts. In the case of Ryndzionck the Tribunal records its consideration of the decision of the commissioner of the decision of the Commissioner on the grounds of appeal filed on 26th September 2001 and also "all documentation furnished to me in respect of this appeal". If, as I think it reasonable to assume - as is apparently the custom in all other earlier documentation signed by the Applicant personally (including the Questionnaire) is available to the Tribunal, it was open to the Tribunal to have come to the decision it did. In that earlier documentation there is absolutely no reference to the Netherlands. It is inconceivable that the Netherlands would have on invitation accepted the request and assumed the burden of dealing with the asylum application unless satisfied that it was obligated to do so on the basis of the reciprocal obligations arising under the Convention.
If as contended for by the Applicant Ryndzionck had actually entered the Netherlands as alleged, but unproven, the provisions of paragraphs 1, 2 and 3 would have applied so long as he had not left the Member States, furthermore if the Applicant Ryndzionck had held the visa (of the character envisaged by the article) and arrived in the State (as it was the case) such visa did not enable him to enter the territory of this Member State.
In the case of K. he came within the latter category of person and he is a person within the terms of Section 3(2)(e) of the Immigration Act 1999 'whose application has been transferred to a Convention country for examination pursuant to Section 22 of the Refugee Act, 1996.' Once the Commissioner has decided - the after the invitation has been accepted to transfer, that meets the requirements the requirements of Section 3(2)(e) of the Act of 1999; it is not dependent on the actual delivery of papers or persons. Furthermore the Applicant has no entitlement to make representations under Section 3(3) because the provisions of Section 3(5)(b) of the 1999 Act - but that does not mean that the Minister shall not have regard to the matters otherwise provided for in that section. An Applicant with an unexpired visa, who may have availed of it to actually enter the territory of a Member State - can nonetheless be returned to the country which issued the expired visa to have his asylum application determined.
The provisions of the Dublin Convention though not overtly designed to eliminate forum shopping clearly states that in keeping with the objectives of the determining the State responsible for examining applications for asylum lodged in one of the Member States and:
"AWARE of the need, in pursuit of this objective, to take measures to avoid any situations arising, with the results that applicants for asylum were left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States and to ensure that applicants for asylum are not referred successively from one Member State to another without any of these States acknowledging itself to be competent to examine the application for asylum".
In these cases I am satisfied that both the Commissioner and the Tribunal had evidence before them to enable you to come to the decisions they did and I would dismiss the applications.
However, the difficulties that have arisen in these cases might have been avoid or reduced if the Applicants who wished to be considered for refugee status had been more fulsome and forthright in the information and documentation at the outset and if the Applicants (and/or their advisors), the Commissioner and the Tribunal had express regard to 97/662/CMS Decision No. 1/97 of 9th September 1997 of the Committee set up by Article 18 of the Dublin Convention of the 15th June 1990 concerning provisions for the implementation of the Convention [see the Official Journal of the European Communities L281 Volume 40 14th October, 1997]. Article 9 and 10 and 11 in particular of that decision deal with Article 5 of the Convention and Annex III both in list A (Means of Proof) and List B
(Indicative Evidence).
END OF JUDGMENT
MR. POWER: Very good. I think in this case, my Lord, I would be applying for my costs. I preceded before this court on the basis that much of the factual decisions as reached by the Tribunal was unsatisfactory. Now, your Lordship has found against me on the point. I think it is a point worthy of making and I think, in fact, your Lordship in your reference there at the end to the official journal had regard to the fact that certain pointers may well have been available. In fact, in my submission, those pointers would be more incumbent upon the State to make in this regard particularly at a stage where, I should point out, that the Applicant was not represented, that is at the first stage. So, in taking that into account, my Lord, I would ask for my costs.
MR. DIGNAM: I think I will be asking your Lordship to certify a point that is of exceptional public importance. I would prefer to have full consideration of the judgment which your Lordship has just given before I make an application. In brief, my Lord, the application will be granted essentially upon the approach to the interpretation of Article 5 which your Lordship has adopted. I think that your Lordship has indicated that the more appropriate interpretative approach to adopt in the context of the Dublin Convention is the purpositive of approach. I will be submitting to your Lordship that the purpose of approach is only appropriate where the ordinary and natural meaning of the words give rise to some ambiguity or some uncertainty as to the meaning of the statute. Indeed, Ms. Farrell in the course of the proceedings conceded and accepted that in the first instance the appropriate approach to the interpretation of the Convention which should be adopted is the ordinary and natural meaning of the language.
Now, if your Lordship felt that the ordinary and natural meaning of the language gave rise to some ambiguity then it may be appropriate to ...
INTERJECTION.
MR. JUSTICE SMYTH: I don't think it gave rise to it, but there is an easier way for everyone to do this.
MR. DIGNAM: I think also I would say in relation, it is an aside as much as anything else, in relation to the affidavit being sworn by the solicitor, I think in this case there was no issue of fact. The issues of fact which were before the Tribunal were accepted fully by the Applicant and there was no dispute on the fact and, indeed, Ms. Farrell accepted that there was no dispute on the facts, it was simply a net point of the interpretation of the article.
My essential point would be that in relation to the interpretation of Article 5.4 that it is important to the public exception and public importance, it is an international convention which the State is a party to and which governs the forum in which a person is entitled to apply for asylum. In those circumstances it is a point which has a broad application to a person seeking asylum in this State. In those circumstances it is a point of exceptional public importance. As I say to your Lordship I am just indicating the grounds on which I will be submitting them.
MS. FARRELL: If I can answer Mr. Dignam firstly in relation to certification of public importance. In relation to the fact that the affidavit was sworn by the solicitor my understanding of the case was that the only point effectively that your Lordship was asked to determine was whether or not the fact that a person did or did not land and the issue of the State was immaterial. For the purposes of that I did not challenge any of the facts averred to in the affidavit. So, I did not make the point because I understood that the only issue before the court was purely the interpretation of the article. I did not put in the affidavit and I didn't take issue with the facts.
In relation to the application for costs made by Mr. Power I would say that as the successful party in this matter that the State is, in fact, entitled to its costs and would ask that costs be awarded to the State, to the Respondents. However, if your Lordship was minded to take into account the fact that the Official Journal was not referred to by the Respondents and wanted to reflect that in your order I would ask you to make no order rather than make an order for costs in favour of the Applicant who was unsuccessful in the proceedings.
MR. JUSTICE SMYTH: The position is ...
INTERJECTION.
MR. POWER: Sorry, my Lord, if I could be very brief, I should just point out in this case that the replying affidavit which contained so many new facts, new to me, new to the court, new to the Applicant, it was received by me on the morning of the trial. I would like to point that out to your Lordship.
MR. JUSTICE SMYTH: That has not been lost on me. You made that point at the time. There will be no order as to costs against either of you and there will be no order of costs in favour of you either.
The people who were doing the thing ought to have known how to set about it, there was a mechanism for doing this which would have avoided all of this. If you want to have a look at this judgment, Mr. Dignam, if you are here on 21st or 22nd if you want to come back and make some observations I will allow you to do so.
MR. DIGNAM: I would be obliged for that opportunity, my Lord, I appreciate your Lordship's comments in relation to the Official Journal, but there is nothing in that Official Journal which is a bearing on the K. case, my Lord. The facts in that case ...
INTERJECTION.
MR. JUSTICE SMYTH: No, I realise what you are saying there, but I thought of this, and I will allow you if you want to have a look at it and I will say nothing one way or another.
MR. POWER: I might ...
INTERJECTION.
MR. JUSTICE SMYTH: If you want to both come I will hear you both.
THE HEARING CONCLUDED
