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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K.T. (Georgia) -v- Minister for Justice Equality and Law Reform & Ors [2014] IEHC 198 (28 March 2014) URL: http://www.bailii.org/ie/cases/IEHC/2014/H198.html Cite as: [2014] IEHC 198 |
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Judgment Title: K.T. (Georgia) -v- Minister for Justice Equality and Law Reform & Ors Neutral Citation: [2014] IEHC 198 High Court Record Number: 2011 150 JR Date of Delivery: 28/03/2014 Court: High Court Composition of Court: Judgment by: Barr J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 198 THE HIGH COURT JUDICIAL REVIEW [2011 No. 150 JR] IN THE MATTER OF THE REFUGEE ACT 1996 (AS AMENDED) IN THE MATTER OF THE IMMIGRATION ACT 1999 (AS AMENDED) IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 AND IN THE MATTER OF THE CONSTITUTION BETWEEN K. T. (GEORGIA) APPLICANT AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT of Mr. Justice Barr delivered the 28th day of March, 2014 The Delay Point 2. In order to determine this point, it is necessary to set out the chronology of the proceedings. The impugned decision was notified to the applicant by letter dated 18th November, 2010. The proceedings issued in the central office on 16th February, 2011. The first return date of the motion was 7th March, 2011. On that date, the respondent sought an adjournment until 28th March, 2011. 3. On 28th March, 2011, the respondent sought an adjournment until 9th May, 2011, and gave an undertaking not to deport the applicant until that date. On 9th May, 2011, the respondent sought an adjournment until 16th May, 2011, with the undertaking continuing until then. On 16th May, 2011, the respondent sought an adjournment until 30th May, 2011, with the undertaking continuing until then. On 30th May, 2011, the respondent sought a further adjournment until 27th June, 2011, with the undertaking continuing. 4. On 27th June, 2011, the respondent sought the list to fix dates on 18th July, 2011, and indicated that the undertaking would lapse on 4th July, 2011, and that it would be up to the applicant to seek priority in the list to fix dates. 5. On 18th July, 2011, an application for priority was refused by Cooke J. and the proceedings were then repeatedly adjourned at the following list to fix dates held on 5th December, 2011; 12th March, 2012; 16th July, 2012; 3rd December, 2012; and 29th April, 2013. 6. The applicant was deported on 11th October, 2012. He established contact with his solicitor who immediately travelled from Cork to Dublin with a set of papers for the purpose of moving an injunction application. However, the plane had departed before the injunction application could be made. 7. At the list to fix dates on 29th April, 2013, Clark J. invited applications for priority and having heard the circumstances of the within proceedings and on being informed that the applicant was maintaining contact with his solicitor, the case was listed for hearing on a telescoped basis on 22nd November, 2013. It was submitted on behalf of the applicant that despite proceedings having been listed before the High Court on 12 occasions, it was never indicated that the respondent would rely on any time or delay issue to dismiss the proceedings. 8. The court was referred to the decision in K.B. v. Minister for Justice, Equality and Law Reform & Anor [2013] IEHC 169, where Mac Eochaidh J. had the following to say in relation to delay points:
Background 11. The applicant alleges that he fled Georgia to escape persecution due to his political activities there. He fled in 1993 to Azerbaijan where he remained until 1994 when an amnesty was issued by the Georgian government allowing Georgians who were politically active, such as the applicant, to return. The applicant continued his political activities but experienced problems again after the elections of 1995. He became a senior member of his party and for this reason he was monitored by the government. He states that his phone calls were censored and his movements were followed. 12. He was arrested after the 1999 elections and was charged with being involved in an attempted coup and betrayal of the country. He was accused of organising illegal demonstrations against the government. The applicant claims that these are false accusations and charges which were made against him by the government. 13. The applicant states that the police raided his house during which his pregnant sister-in-law was pushed and as a result lost her baby. He instructs that he was released after one day because the authorities feared the negative publicity following the incident with his sister-in-law. In 2000, he fled to Switzerland where he claimed asylum. He returned to Georgia in 2004, after the revolution, in the hope that political and other changes in his own country would allow him to live there without fear of persecution. However, he encountered problems at the border where he was detained by immigration officials due to passport irregularities. He states that his passport had expired. When the authorities did a background check they discovered his political background and he states that they interrogated him and beat him until he was unconscious. The applicant states that he was taken to a psychiatric prison where he spent about nine days in detention and was charged with resisting the authorities. 14. After this, the applicant left Georgia again and came to Ireland. He arrived in the State on 10th August, 2004, and applied for asylum on the following day. He made this application under the name Tamaz Karlovich Chikobava. In the course of the questionnaire which he filled in, he gave an incorrect account as to what he had done in the years 2000 to 2004. He stated as follows:
16. After some time in Switzerland, during which time it is not clear whether he received medical treatment, he went to Germany for a short period. Thereafter, he travelled to Holland where he was detained by immigration officials and held for ten months. On his release, he travelled to Belgium where he was finger printed by the immigration authorities. These disclosed that he had already sought asylum in Ireland. Accordingly, he was returned to Ireland in May, 2006 pursuant to the Dublin II Regulation. 17. On 6th February, 2007, an application was made on behalf of the applicant pursuant to s. 17(7) of the Refugee Act 1996, for readmission to the asylum process. This application was refused by letter dated 3rd June, 2007. 18. On 26th March, 2008, the applicant made an application for subsidiary protection and for leave to remain in the jurisdiction. Prior to this, and after the withdrawal of his asylum application, a report on the file had been carried out on 9th March, 2005, and it recommended that the Minister should make a deportation order. The Minister proceeded to make a deportation order on 5th May, 2005. 19. On 26th March, 2008, the applicant made an application for subsidiary protection and sought leave to remain within the jurisdiction. As the deportation order was made prior to 10th October, 2006, the applicant was not entitled to seek subsidiary protection. 20. The Refugee Legal Service made representations pursuant to s. 3 of the Immigration Act 1999, on 26th March, 2008. The applicant relied on the documentation which had been submitted with his purported subsidiary protection application as the basis for saying that returning him to Georgia would breach s. 5 of the Immigration Act 1999. The applicant submitted a large volume of personal documentation together with country of origin information in support of his application. The applicant had, by this stage, come clean in relation to his true identity and in relation to his activities between 2000 to 2004. By letter dated 6th February, 2007, the Refugee Legal Service submitted two newspaper articles on behalf of the applicant. These articles consisted of interviews with the applicant as a representative of opposition political parties in Georgia. It is not possible to definitively date the newspaper articles but they are said to have been printed in or around 1999. One of the documents names the applicant as one of the founding members of a party called "Heart of Georgia XXI". 21. On 16th October, 2010, an examination of the entire file was carried out by an executive officer of the repatriation unit pursuant to s. 3(11) of the Immigration Act 1999. In the course of a thorough examination of the file, it was noted that the applicant had submitted an amount of documentation to include the following: a diploma and translation; a certificate and translation; a work booklet and translation; a copy of a letter from the Ministry of Justice of Georgia and translation; copy of a letter from the Georgian Liberty and Unity Movement dated 23rct March, 2008; and an extract from the international Centre for Civic Culture of Political Parties of Georgia in which the applicant's name is noted as one of the founding members of the "Heart of Georgia XXI". 22. The applicant's legal representatives had also submitted a number of documents which were obtained from the Swiss authorities where he had made a previous application for asylum. These documents included a copy of a driver's license and a copy of the letter from the Swiss Embassy in Ireland which enclosed the documents. In addition, the applicant had submitted a number of personal letters. 23. As the previous consideration of the applicant's case was made in 2005, the executive officer then proceeded to examine up to date country of origin information. In this regard, the executive officer looked to the following: a BBC news report dated 18th June, 2010; an extract from the UK Home Office, country of origin key documents: Georgia, 15th July, 2008; an extract from the US Department of State 2009 Country Reports on Human Rights practices in Georgia, 11th March, 2010; and an extract from the US Department of State Country Reports on Human Rights practices in Georgia dated 11th March, 2010, in relation to freedom of assembly and freedom of association. The executive officer also had regard to the revisions in the same document dealing with the new criminal procedure code and in information as to the Public Defender's Office taken from their website. She also had regard to a portion of the report which noted that there were a number of NGOs and human rights groups operating in Georgia. Also in that report, the executive officer had regard to an extensive extract dealing with the conduct of criminal trials under the new criminal procedure code, wherein it was stated:
26. The examiner also had regard to a report by Caritas International Country Sheet Georgia January 2010. This indicated that the applicant would not experience any fear of persecution arising from his position as a failed asylum seeker. Having reviewed all the above information, the executive officer came to the conclusion that country of origin information confirmed that there was a functioning police and independent judicial system in Georgia and she was satisfied that state protection was available to the applicant in Georgia. For this reason, she was of opinion that repatriating him to Georgia would not be contrary to s. 5 of the Refugee Act 1996, as amended. 27. The executive officer also had regard to the applicant's rights under Article 8 of the European Convention on Human Rights and came to the conclusion that the making of a deportation order would not constitute a breach of his right to respect for private life, nor would it constitute an interference with his right to respect for family life under Article 8. The executive officer concluded with the following recommendation:
29. The applicant was deported to Georgia on 11th October, 2012. There was no information before the court as to how the applicant has been treated since being repatriated to Georgia. Conclusions 31. In Smith & Ors. v. Minister for Justice, Equality and Law Reform & Ors [2013] IESC 4, the Supreme Court held that when making an application to revoke a deportation order, where the original deportation order was not contested by way of judicial review, there should be new material, which was not available at the time the deportation order was made, on which it could be alleged that the decision not to revoke the deportation order was illogical or unreasonable. In the course of his judgment, Clarke J. stated as follows:
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