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Cite as: [2002] IEHC 163

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THE HIGH COURT

(Judicial Review)

Record No. 160JR/2001

IN THE MATTER OF THE IMMIGRATION ACT 1999

Between/

Z. W.

Applicant

-and-

The Minister for Justice Equality and Law Reform

Respondent

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED FRIDAY, 25TH JANUARY 2002:

MR. JUSTICE SMYTH: The applicant is a 25 year old from Yanji City, Jilin Province in the People's Republic of China. He is a graduate of the University of Yaum-Bian in Jilin Province where he majored in Japanese. After graduation in 1997 he was appointed to the position of Japanese translator in the Gui Wang Food Company in Jilin Province. In that capacity he came to an appreciation of the importance of a command of English for international trade with China and resolved to study abroad for a period to improve his English. He considered that his overall marketability would be greatly enhanced in China if he had a proficiency in English on his return to his country of origin.

He arrived in Ireland in September 1999 and signed an Aliens Registration form. He secured a visa valid for six months which was conditional upon (a) attending a designated course of study and (b) that he would not engage in work or employment. He had arrangements in place to study English at City College Dublin. His goal was to gain a proficiency in English and to ultimately sit the Cambridge First Certificate Examination. During the six month period 24th September 1999 to 24th March 2000 his attendance at classes was 90% plus and his teachers considered he had made excellent progress at upper intermediate level. The documentation indicates that they considered he would be ready to sit the Cambridge First Certificate Examination six months later had he maintained the level of application shown at that stage. The Director of the college had no doubt that the Applicant was an academic by nature and had a facility for languages. The Director and teachers were more surprised than disappointed by his decline in his attendance during his second course or module, particularly from June 2000 and onwards where his attendance fell to around 30%.

On the expiry of the first visa, he applied and obtained a second visa (subject to the like conditions of the first) on production of evidence of payment of his tuition or college fees. This visa was in respect of the period from the end of March 2000 to October 2000. It was during this period that certain events took place which brought him to the attention of the State authorities and ultimately lead him to this court.

The Applicant avers that in or around May 2000 he decided to investigate the possibility of applying for asylum under the Refuge Convention and Protocols as his family in China was ethnic Korean and they live close to the border with North Korea. In or about 31st May he avers he went to the Refugee Application Centre merely to enquire as to the criteria involved in making a successful application for refugee status. It is unnecessary to relate the details of the events that then occurred. Basically he was requested to return with his Passport and Green Book and on doing so he handed those over and he signed a form of Application for refugee status, he says he did not know the nature of the document that he was being asked to sign, that he had no interpreter or translator available to him and that he felt under some form of obligation to sign the form when requested. He states that it was not his intention to pursue a formal application and on reflection he returned certain documentation he had received to the Department of Refugee Application Centre on 2nd June 2000 and immediately withdrew the application. He then learned that his file had been passed to the Immigration Section of Department to which he wrote formerly on 3rd June 2000 with notice of withdrawal and stating that his intention on completion of his studies was to return to his home town and his parents in China.

The position taken by the Respondents vis-a-vis the events of late May early June 2000 is that the record made at the time records:

"The Applicant has been in Ireland since September 1999 but did not apply for asylum until now as he 'did not know the system' and made his decision recently as he was 'advised by a friend'. His reason for seeking asylum was a little vague, despite his good grasp of English, but seems to revolve around living too close to the North Korean border."

The letter of withdrawal (inter alia) states –

"I want stop application for refugee"

"I want to stop application".

It was submitted that the Applicant though perhaps not totally at ease with forms of expression in English, had (a) a sufficient grasp of English as to convey to those officials involved no necessity for an interpreter, (b) that the enquiry was not merely exploratory but considered and (c) that the letter of withdrawal shows an appreciation by the Applicant that he had made an application for refugee status (d) that the reference to vagueness is not related to an inability to communicate in English but to give a focused or clear reason for seeking refugee status (e) that the Applicant was not confused but had second thoughts having put the asylum machinery in motion.

While considerable controversy surrounds these events in late May, early June 2000; such events put the Respondents on enquiry as to the observance of the conditions attached to the visa granted to the Applicant. The controversy surrounding such events does not affect anything between that date and October 2000 when the second visa expired. These can be stated as:-

1) A 30% attendance at college from the end of May onwards.

2) Frequent calls and attendances by the Applicant on the Respondent's Immigration Section to recover his Passport and Green Book. The response of the Respondent was inadequate and disappointing but at least there was the good grace belatedly to apologise to the Applicant in court. While appreciating the pressure under which the Section was working at the time the insensitivity of the want of a response does the service no credit.

3) The Applicant enumerated the disadvantages to him of his "lack" of documents (in paragraph of his affidavit of 20th March 2001). However, it must be remembered that he was the holder of a valid visa during this period up to the month of October 2000.

4) The deterioration in attendance at college began before any application for refugee status was ever made but showed in a most dramatic fashion in the period (May – October 2000).A letter of 30th July 2000 from the Director of the College states that - 'during the last eight weeks he has not appeared for classes at all.' The Applicant challenges this statement. It is clear that the Immigration and Citizenship Division of the Department formed the view as a result of this letter that the Applicant having breached the terms of his visa, he was liable to deportation.

While it is unfortunate that the Applicant did not have his passport and Green Book, I am satisfied on the evidence that prior thereto there had been some deterioration in his college attendance, and that while he may have had on occasion sought to recover his documents - much of that time overlapped his holding a visa. His distraction from his studies was primarily due to other distractions referred to in the papers and referred to by the Applicant and counsel, which I need not here record and an additional breach of visa conditions in that the Applicant had worked without permission which in the opinion of the Respondent called into question the bona fides of his being in the State. Whatever be the true facts it is in indisputable that in October 2000 the Applicant's second visa expired and unless he obtained a new visa he had no legal entitlement to be in or remain in the State. He did not receive a third visa.

By letter dated 12th December 2000 the Respondent wrote to the Applicant indicating that he proposed to make a deportation order under Section 3 of the Illegal Immigrants Act 1999 for three stated reasons. This is not a pro forma letter. The alternatives opened to the Applicant were clearly stated. A letter of 2nd January 2001 was written by the Applicant's solicitor by may of Section 3 application. I am not satisfied on a consideration of the evidence as a whole that the Department was clearly to blame for the Applicant being in breach of the conditions in the visa. In an unprecedented manner the Immigration and Citizenship Section of the Department made reply to the Section 3 application. While it responds to the issues raised in the solicitor's letter it is absolutely clear that it is the failure of the Applicant to abide by the conditions in his visa rather than (or at most coupled with) the withdrawal of the application for asylum that was uppermost in the mind of the respondent.

The conclusion of events was that the Minister made a Deportation Order on 27th February 2001 and gave notice of the making thereof by letter dated 5th of March 2001:

"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 interest of public policy and 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."

It is very properly conceded that there is an error on the face of the record. I have no doubt that on the facts as established in the evidence and what was very frankly conceded on behalf of the Applicant that the Minister had good grounds under Section 3(2)(h) of the Act of 1999 to make a deportation order. However, the reason given is the refusal of refugee status. In this regard I refer to the decision of the Supreme Court in PB&L (unreported 30th July 2001) affirming an observation made in the course of the High Court judgment in that case to the following effect:

"The word 'reasons' embraces the singular reason, however, where one of a number of reasons is given by the Minister he cannot afterwards rely on any other uncoiranunicated reasons to defend his compliance with the subsection."

The application in this case is for an order of Certiorari and in this regard reference should be made to the case of the The State (Abenglen Properties) -v- Corporation of Dublin [1984] I.R. 381, to the judgment of 0' Higgins J. at 392, which is to the following effect concerning Certiorari:

"Today it is the great remedy available to citizens, on application to the High Court, when any body or tribunal (be it a court or otherwise), having legal authority to affect their rights and having a duty to act judicially in accordance with the law and the Constitution, acts in excess of legal authority or contrary to its duty. Despite this development and extension, however, certiorari still retains its essential features. Its purpose is to supervise the exercise of jurisdiction by such bodies or tribunals and to control any usurpation or action in excess of jurisdiction. It is not available to correct errors or to review decisions or to make the High Court a court of appeal from the decisions complained of. In addition it remains a discretionary remedy.

This discretion remains unfettered where the applicant for the relief has no real interest in the proceedings and is not a person aggrieved by the decision. (See The State (Doyle) -v- Carr and The State (Toft) -v- Galway Corporation).

Where, however, such applicant has been affected or penalised or is an aggrieved person, it is commonly said that certiorari issues ex debito justitiae. This should not be taken as meaning that a discretion does not remain in the High Court as to whether to give the relief or to refuse it. There may be exceptional and rare cases where a criminal conviction has been recorded otherwise than in due of lawand the matter cannot be set right except by certiorari. In such circumstances the discretion may be exercisable only in favour of quashing: See The State (Vozza) -v- O'Floinn).

In the vast majority of cases, however, a person whose legal rights have been infringed may be awarded certiorari ex debito justitiae if he can establish any of the recognised grounds for quashing; but the court retains a discretion to refuse his application if his conduct has been such as to disentitle him to relief or, I may add, if the relief is not necessary for the protection of those rights. For the court to act otherwise, almost as of course, once an irregularity or defect is established in the impugned proceedings, would be to debase this great remedy."

Further on, in the passage the judgment of Henchy J, also from the same case:

"If, therefore, the respondents erred in either respect, they erred within jurisdiction and any error that may have been made does not appear on the face of the record. In such circumstances, the remedy of certiorari does not lie: (See the judgments of the House of Lords in re Racal Communications Ltd., and of The Privy Council in S.E Asia Fire Bricks -v-Non-Metallic Products. Where an interior court or tribunal errs within jurisdiction, without recording that error on the face of the record, certiorari does not lie. In such cases it is only when there is the extra flaw that the court or tribunal acted in disregard of the requirements of natural justice that certiorari will issue. In the present case, there is no suggestion that the respondents, in dealing with Abenglen's application acted in disregard of any of the requirements of natural justice. They went wrong in law, if at all, in answering legal questions within their jurisdiction, and they did not reproduce any such legal error on the face of the record of their decision. Consequently, in my view, they did not leave themselves open to certiorari in respect of their decision".

In the instant case the deportation order and, more particularly, the reasons given therefore under which the Minister is obliged to give in Section 3(3)(a) are recognised as being incorrect in that if the Applicant had withdrawn his application for refugee status it was then not within the jurisdiction of the Minister to make a decision on a withdrawn application; notwithstanding the fact that he may have had perfect grounds for making a deportation order on the basis of section 3(2)(h).

The difficulty in this case in so far as the error exists is that it is an error made within jurisdiction but it is on the face of the record. The extent to which a person such as the Applicant in this case whose grasp of English may not have been totally correct does leave an element of doubt and in a situation of refugee status therefore some regard must be had to that feature. Albeit this matter has not come before the courts before, it seems to me that the Minister though he has power under Section 3(11) to amend or revoke an order has not done so to date. Accordingly in my judgment the order made within jurisdiction cannot stand and accordingly will be quashed. There will therefore be an order quashing the decision, in this instance, of the Minister which has been sought to be quashed in the application for judicial review. This, however, does not prevent the Minister if application is made from taking another course.

MR. LANGWALLNER: I am grateful your Lordship.

MR. JUSTICE SMYTH: Does anybody want to say anything?

MR. LANGWALLNER: I suppose I should say something about costs.

MR. JUSTICE SMYTH: I don't know what you want to say, you say what you have to say.

MR. LANGWALLNER: I make an application for costs, my Lord.

MR. JUSTICE SMYTH: What do you want to say, Ms. Moorhead.

MS. MOORHEAD: Costs follow the event, my Lord.

MR. JUSTICE SMYTH: Costs normally follow the event. The mischief that arose in this case has largely had its origin with the Applicant. In this case it seems to me the costs should be a back-to-back. This is not a case where there was any mala fides on the part of the Minister whatsoever, the Minister acted with the best of good motives in the sense of doing his duty.
There was an error made which cannot be characterised as so technical so peripheral as to be de minimus within the meaning of the judgment of Henchy J. in Alpha Promotions -v- Monaghan UPC, accordingly, the order must be quashed.

The position of the Applicant seems to be as follows: the Applicant is in the jurisdiction, the order made on foot of the application under Section 3(6) now requires to be addressed. It seems to me that the appropriate direction to give is if the Applicant will make such supplementary representations as he considers appropriate under Section 3(6) within two weeks of today's date. It will be then open to the Minister to take those matters into account and make such order as he considers in his discretion under the acts without any imposition or inhibition from the court as to what course he should take.

I regret you are going to have to wait if you need a written judgment for a few days, because of the anxiety which I appreciated your client was under, Mr. Langwallner, I decided to do this overnight.

MR. LANGWALLNER: Yes, I am very grateful for your Lordship's considered and detailed treatment of the judgment. I am instructed by my solicitor that there is an issue of the Passport and Green Book.

MR. JUSTICE SMYTH: That did occur to me and it seems to me that the appropriate course on the basis of the judgment of Hardiman J. that you are still within the jurisdiction effectively on the misericordia basis that those documents could and should be held with the Minister until such time as he makes his determination on the application that you will make to him. I had in mind and I bore in mind your representations yesterday of his age, of his averments that he would go away in June when he has completed the course and I would not consider it amiss if the Minister were to retain those documents until the time of deportation.

MR. LANGWALLNER: I am extremely grateful.

MR. JUSTICE SMYTH: That would safeguard each person's position.

THE HEARING CONCLUDED