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Cite as: [2002] IEHC 137

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THE HIGH COURT

DUBLIN

JUDICIAL REVIEW

RECORD NO. 2002/104 JR

Between

V. R.B.

Applicant

And

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Respondent

JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON THURSDAY, 2^ND MAY 2002

MR. JUSTICE SMYTH: The Applicant is a Romanian national (Cetatean Romanian as per his passport) whose date of birth is 21^st July 1972. He is a male person who is married and has one daughter who was born on 28^th January 1998.

On 9^th October 1999, the Applicant with some other fellow countrymen arrived from Cherbourg in France by boat in Rosslare Harbour. They were stowaways. The Applicant was refused leave to land in accordance with the provisions of the Aliens Act and the Aliens Orders. As the Applicant did not hold a valid Irish visa, he was not entitled to enter a port in the State unless he was the holder of a valid transit visa (The Aliens (Amendment) (No. 5) Order, 1996, Schedule). The Registration Officer's records maintained under the Aliens Act indicate that the Applicant would be detained in Wexford until such time, being as soon as practicable, he could be removed from the State. Later that day, an Immigration Officer records, he was encountered and given a copy of the procedures for processing asylum claims in Ireland (The Hope Hanlan Procedures) and also a form of 'Application for refugee status in Ireland', which he was instructed to complete and to take personally to 77/83, Lower Mount Street, Dublin, within seven days: photographs having been taken, the Applicant and those with him were taken in charge by an official of the South Eastern Health Board.

It is against that general background that the Applicant came to make a claim for asylum - and it is it, not the background facts, that must be considered in this application.

A preliminary interview was held on 11^th October for the purpose of determining if the Dublin Convention applied. At that time, the Applicant signed a declaration that:

"I have been told by an Immigration Officer that I will be asked questions about why I need asylum in Ireland and I must answer these questions honestly. I have been told by the Immigration Officer that anything I say will be written down and passed to the Department of Justice, Equality and Law Reform where it will be decided if I can have asylum in Ireland."

The reason given at that time for seeking asylum was expressed thus:

"I was a member of a legal political party, it was decided to go on strike at his [sic] factory where he works. He was accused of organising the strike and as a result he was visited by the police so he was afraid of what would happen and to avoid this he [sic] escaped to Ireland."

While this formed part of the asylum process, nothing seemed to have come of it, as apparently the convention was inapplicable. Accordingly, it need not be considered in way any way determinative of the issues before the Court. It is, however, always of importance that truthful and reliable information be given and recorded in respect to enquiries referable to the Dublin Convention because of the State's reciprocal duties and responsibilities to other states who are parties to the Convention.

On 14^th October , the asylum application proper was made. The information given on the ASY- form was that the Applicant departed from his country of origin on 15^th August 1999 and took a route through Hungary, Slovakia, Czech Republic, Austria, Italy and France to Ireland. On the date of his application he was given and acknowledged receipt of inter alia the following documents:-

a) Information Leaflet and Procedure for Processing Asylum Claims

b) Questionnaire regarding application for Refugee Status

c) Change of address forms

d) Refugee Legal Service Information Leaflet.[These documents issued in the Romanian language.]

The necessity of truthfulness of information given is stressed in document (a).

The Questionnaire was completed and signed on 19^th October . In response to query and, the Applicant stated that he did not claim asylum in any of the countries through which he had traveled and reason he gave was as follows:-

"I did not know that there is issued political asylum in any country that I transited."

This answer may be correct. However, it does not appear to be any explanation to the response of the Ministry of the Interior to the Inquiry under the Dublin Convention (which was disclosed in the open correspondence of Discovery) which stated:-

"I should inform you that Mr. R. V. B. is known to my services. He entered our territory illegally and has been notified to the SIS by the German authorities. A temporary residence permit was issued to this Romanian national by one of the French prefectorial services. This person was ordered to be escorted to the border on 29th April and was notified of this decision. He left our territory on 6th May and his temporary residence permit was withdrawn."

I note at once that the mere fact of the existence of this document is not of itself proof of the truth of its contents but I know of no reason why the French authorities should inform the Irish authorities (especially when called upon under the Dublin Convention) of furnishing otherwise than true and reliable information.

The reply to Question as to why the Applicant was seeking asylum on the questionnaire does not accord with that given in respect of the Dublin Convention interview. I would not expect a verbatim similarity as it seems clear that the answer given in the case of the Dublin Convention interview was, it seems to me, recorded or written by an immigration official (one J. Murphy) whereas the Applicant completed the questionnaire himself in manuscript prior to its translation into English. However, in my judgment, there is a serious and substantial difference in the two accounts.

While the Applicants' address given in the ASY-1 form is recorded as Johns Gate House, Johns Gate Street, Wexford, he does not record an Irish address in response to Question 13 of the questionnaire form. As of March , he gave as his address (to the Garda Station in Rathmines) 11 Clanbrassil Street Upper, Dublin 8, when he reported the loss of his Identification Card and Aliens Card. He was to return to Rathmines some time on or about 17th April 2000. Sometime in the year, the Applicant took up residence at 35 Fitzgibbon Street, Dublin 1. The Applicant avers that he did not inform the Respondent's Department of his change of address to Fitzgibbon Street, but the Department of Social Welfare did as "that Department transferred me to near the new stadium in Dublin." - the only new stadium in Dublin is Croke Park which is within sight of Fitzgibbon Street.

While it appears that the Applicant was careful to communicate his whereabouts to the Department of Social Welfare from whence whatever social welfare benefits and/or payments were to be had, he did not display a like care to notify the Respondent, whom he was obliged to inform of his change of address and had been given Change of Address forms for that very purpose. It is quite clear from the documents that so far as the Respondents were concerned, the notified address they had for the Applicant was 35 Fitzgibbon Street, Dublin 1.

At some unspecified time during the year, the Applicant ascertained that he could find employment in the State. Without in any way notifying the Respondent, he embarked upon a course of conduct which took the form of his departing from the State, returning to Romania and, while there, applying for and obtaining an Entry Visa for Ireland. However, before considering what took place in Romania in the early months of it was important to note that in respect of at least two specific obligations set out to the Applicant in the information leaflet for Applicants for Refugee Status for Ireland, the Applicant was in breach of:- -

A. You must not leave the State without permission while your application is under consideration.

B. You must make known to the Department of Justice, Equality and Law Reform your address. You must also inform the Department each time you change your address."

The obligation in respect of (B) arose on whatever date it was in the year that the Applicant left 9 Flat at 35 Fitzgibbon Street, Dublin 1. So far as the Respondent was concerned, the Applicant resided at the Fitzgibbon Street address and by letter dated 14th June 2001 sent by registered post, it requested the Applicant to attend for interview on 2nd July at 9:30. Having failed to attend for interview, a second invitation to attend for interview on Friday 20th July at 9:30 was offered (this was by letter of 2nd July). I am satisfied and find as a fact that the letters were sent and dealt with by An Post as revealed in the documentation. I think it unnecessary to repeat in this judgment what was stated about the active role an Applicant has in the asylum process in the judgment of the Supreme Court in the Illegal Immigrants (Trafficking) Bill [2000] 2 I.R.360 at p.395 and its determination of the deemed service provisions of S.(c)(ii) also per Finnegan J. (as he then was) in Poppa -v- The Minister for Justice, Equality and Law Reform, (unreported August 2001) and Omijidi -v- The Minister for Justice, Equality and Law Reform (High Court unreported 2nd November ).

In those circumstances, a Report and Recommendation of the Refugee Applications Commissioner (hereinafter referred to as "The Commissioner") pursuant to Sections 11(9) and 13(1) of the Refugee Act as amended were prepared for the Commissioner by Andrea M. Malone recommending that the Applicant should not be declared a refugee. A letter of notification of this recommendation was sent to the Applicant at the notified address on 27th July . The same fate befell the delivery of this letter as the earlier registered letters. No response having been received from the Applicant, the Commissioner, by letter dated 8th September, notified the Respondent of her recommendation that the Applicant should not be declared a refugee.

On 17th October , the Respondent by letter notified the Applicant of his intention to refuse to give the Applicant a declaration as a refugee and also clearly stating that his entitlement to remain temporarily in the State in accordance with Section 9(2) of the Refugee Act (as amended) had expired. The alternatives open to the Applicant were indicated (enclosed was an address notification form). Again, this letter evoked no response from the Applicant to whom I am satisfied and find as a fact it was sent. An examination of the Applicant's file under S.3 of the Immigration Act and S.5 of the Refugee Act was undertaken and a recommendation made that a Deportation Order be made and the Applicant repatriated to Romanian. The Respondent signed a Deportation Order on 18th December 2001 . The Order and a letter of notice thereof dated 11th January 2002 obligated the Applicant to attend on Friday 18th January at the Garda National Immigration Bureau, Harcourt Square, Harcourt Street, Dublin to make arrangements for his deportation not later than 15th February . Again, there was no response to this letter of notice by the Applicant. An Post made a return of "Gone Away" and that is dated 15th January , as a result of which nine different persons or bodies were notified of the Applicant's name. In the event, the Applicant was arrested and applied for and secured bail on 25th February , a matter to which I will return later in this judgment. The matter was delayed in coming to a hearing because of a Discovery Application made by the Applicant on 11th March 2002 (in respect of a return date of 19th March ) which was responded to on 24th April .

While all the foregoing earlier referred to was taking place, it appears that in December , the Applicant went to the Romanian consulate and obtained "a Romanian consular passport", which enabled him to travel to Romania in time for Christmas. If what he had stated in reply to the interview in respect of the original interview in Wexford and again in question , the Questionnaire was true concerning his fear of persecution, returning to Romania gives the lie to this.

The Applicant averred in an affidavit of 24th February - the copy handed into Court was unsworn, contained no filing clause or authentication of conformability to any original - that he sent a copy of his "full passport" to Mr. Canny of Browne's Brasserie of St. Stephen's Green, Dublin, who secured a work permit for the Applicant in late March early April 2001, not as averred in late June early July 2001. Mr. Canny on the bail application acknowledged negligence in regard to the securing of a work permit. The Applicant in due course received the work permit aforesaid and a contract of employment from Mr. Canny in or about late April . The work permit is stated to be valid from 26th March 2001 to 25th March 2002.

The Applicant, with these documents, applied for and secured through the Irish Consulate in Bucharest a Visa to enter the State. His explanation, if it be such, is expressed as follows:-

"I say I was not asked whether I had ever applied for asylum within the State. I say that I was informed in the consulate in Bucharest that all my papers would have been sent to Ireland to be checked in the Department of Justice and after that I gave my telephone number in Romania. I say that I was told to call after about two weeks and then having called after about a month and a half and after two months, there was no answer from the Department of Justice.

7. I say that I was informed in approximately July 2001 that my visa application had been approved and I say that my visa was put on my passport.

8. I say that I then arrived in the State in July 2001 and that I showed my passport and the original copy of the work permit.

9. I say that the officials made some checks and that I was told it was okay. I wasn't asked whether I had been an asylum seeker. I say that at Garda National Immigration Bureau at Harcourt Square, my visa was stamped and that I supplied my address as Flat 3, 51 Lower Camden Street."

I know that the terms of the affidavit do not identify the alleged informants, The Department of Enterprize, Trade and Employment, not the Department of Justice, would be the source to check for the authenticity of the work permit. Nothing at all in the discovery discloses any contact with the Department of Justice. On the face of the work permit is a heading:

"Asylum Seeker No.

RSI No."

to which are given no details. The Applicant knew this information but did not disclose it to the relevant Department. Further, I note the information and the content of the Application Form for a Visa does say in answer, to question 9 that the Applicant will be accompanied by his wife but nowhere on the form is it stated that she was coming to the State to work, but the contract of 20th April 2001 from Mr. Canny gives both the name of the Applicant and Mrs. D. S. B., who signed that form simply "B.".

The Applicant's visa application form signed on 7th May 2001 leaves many queries unanswered, but it does contain a declaration by the Applicant in the following terms:-

"I declare that I have understood all the questions relating to this application and that, to the best of my knowledge, the details I have given are correct and complete." [Emphasis added]

There is also endorsed on the form specific information in these terms:

"Visa Information - Ireland.

he granting of an Irish visa is, in effect, only a form of pre-entry clearance. It does not grant permission to enter Ireland. The visa holder is subject to inspection at the port of entry by Irish immigration officers who have authority to deny admission. The visa holder should therefore carry with him/her for possible presentation to the Irish immigration authorities the documents submitted to the Irish authority to which application was made. The visa does not grant permission to stay in Ireland. The date of validity shown on the visa indicates only the date before which it must be presented. The length of stay is decided by the Immigration Officer at the port of entry. The visa holder who stays longer than the permitted length of stay in Ireland may become liable for prosecution and/or subject to deportation."

This information is clear and unequivocal. While appreciating that as a matter of probability the Applicant's affidavit was drafted by his solicitor or junior counsel, the averments in paragraph I simply do not accept. There is also endorsed in the visa application form nine specific points of importance, the last of which is as follows:-

"9. A visa which is obtained on the basis of false and/or misleading information will be subsequently declared void."

In the instant case, the visa granted has expired, but had it still been extant, I would be satisfied that the information given was less than frank and was incomplete and clearly open to a declaration of invalidity.

The Aliens Registration Form recording the arrival in Ireland on rd July of the Applicant dated 26th July 2001 may have been signed by the Applicant or his wife for in response to the query:

"Present place of residence of spouse and children (in Ireland or abroad):-"

The answer is given:

"Husband in Ireland, daughter in Romania."

It further records that the type of Irish entry visa held was "Employment bearer only". The second page of the form raises the question as to whether the person interviewed had visited the State previously and the duration of the visit, to which no answer is given and the question: "Were you registered previously?" is answered in the negative. The Applicant was in the State previously and was a registered asylum seeker. Under the heading "Reason for Visit", the answer given is "work", the Applicant's name is given and the work permit number is given as IRL229608 which was the visa number recorded in his passport. However, the expiry date is given as 9th October 2001.

I record these facts because I was informed by the Applicant's Counsel on the hearing that the Applicant's wife was in the State and had been working, that she is not an asylum seeker, that their child is living in the State with them and that she is expecting a child to be born on 16th May 2002.

On the hearing of the bail application on 25th February 2002 (over weeks ago), the only reference to the Applicant's wife was in the unsworn copy of an affidavit with the date of 24th February in the jurat and in the remarks made to the Court by Junior Counsel for the Applicants concerning the Applicant's arrest. Having checked my court notebook, none of the other really pertinent matters were disclosed to the Court. This is and was very much in keeping with the lack of candour of the Applicant over the entire history which I have set out in such detail.

It is against that background of facts that the Applicant seeks leave to apply for judicial review for a range of reliefs from injunctive, declaratory to certiorari.

The Applicant's submission in the alternative was that the Respondent should at this stage consider representations under S.3(6)(c) and/or (f) of the Illegal Immigrants Act 1999. If a person who has conducted himself as the Applicant has and as submitted both at the bail hearing and at the hearing for leave as having abandoned an asylum process wish the Minister to take such matters into account, that Applicant could and should have been made at the latest immediately after the bail hearing, not when the wife's pregnancy is over another two months advanced and I unhesitatingly infer from the evidence and the economy of fact disclosed to the Court on the bail application, a real possible claim based on an Irish born child has been put in place.

The very real and serious purpose of the Geneva Convention in our legislation is designed for very clear and specific purpose. It is not for Applicants to seek to manipulate the asylum, refugee or immigration system, nor for the Court to be complicit in that regard. The duty of the Court is to uphold the law without fear or favour and in judicial review to confine its adjudication in line with established jurisprudence. That I do.

I am, therefore, satisfied on the evidence and find as a fact and as a matter of law that the Deportation Order was validly made and served and is still of full force and effect and that the Work Permit has expired and that the Entry Visa has expired and the Applicant has no right to be in or remain in the State and that the Respondent is not to be restrained from dealing with the Applicant in the matter of deportation pending any application that his wife may make in the matter of seeking asylum.

In my judgment, the Applicant is not entitled to the reliefs claimed or any relief to apply for judicial review and the application is dismissed.