High Court of Ireland Decisions

 
THE HIGH COURT JUDICIAL REVIEW

653/03JR

BETWEEN:

G S

APPLICANT

AND
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Judgment of Mr Justice Michael Peart delivered the 19^th March 2004:

This is an application for discovery of certain documents which the applicant submits are necessary for the purpose of his application for leave to apply by way of Judicial Review for an order of Certiorari quashing the decision of the respondent dated 18^th August 2003. This decision was to revoke the applicant's declaration as a refugee which had been notified to the applicant by letter dated 21st October 1999. The ground upon which the revocation of his refugee status is revoked, by virtue of the Minister's powers in this regard under section 21(1)(9) of the Refugee Act, 1996 is stated to be as follows:

"that you are a person whose presence in the State poses a threat to public policy given that you have been convicted in Belgium of the criminal offence of people trafficking."

The respondent had previously written to the applicant by letter dated 8^th April 2003 indicating that the Minister proposed to make such a revokation of the declaration. This letter was handed to the applicant on his return to this country from Belgium after he had completed a sentence of imprisonment in Belgium.

By letter dated 29^th April 2003 the Minister furnished to the applicant's solicitor copies of the some of the material which was considered by the Minister when making his decision, but this letter stated also this material which was being furnished did not include "legal advice received and references to same as well as information received from the Belgian Authorities which they wish to claim privilege on."

The letter went on to say:

"In this regard, I have omitted paragraphs 4 and 5 of my submission to the Minister as they relate to legal advice and consideration on the matter. Also the document tabbed X in the submission is not being released. This is the communication from the Belgian Authorities concerning Mr S's conviction in Belgium. The Belgian Authorities issued that communication to us in confidence and it is not being released to you. Nonetheless the only relevant information notified therein is the fact of Mr Syxiu's conviction which was made clear to him in our letter of 9 April 2003."

Another relevant fact in relation to this application is that an article appeared in the Irish Times newspaper on 30^th April 2003 which identified the applicant as a person whose deportation was being sought on the grounds that he has been convicted of human trafficking. The applicant's grounding affidavit states that no investigation appears to have been carried out by the Minister as to how this came to appear in the paper and that it is a breach of the provisions of section 19 of the Refugee Act, 1996 which seeks to protect the identity of applicants under the Act. He seeks in these proceedings a declaration that his legal and/or constitutional rights have been infringed.

The applicant's solicitor wrote a letter seeking by way of voluntary discovery the following documents described in the following terms:

1. Paragraphs 4 and 5 of, and Tab X to, the minute dated 2^nd April 2003 in relation to the Applicant. Reason: the said documents were before the Minister in making the impugned decision and are relevant to the Statement of Grounds, in particular ground 2 thereof.

2. Any other material in the possession of the respondents relating to criminal proceedings against the applicant in Belgium. Reason: the said documents insofar as they exist were before the Minister in making the impugned decision and are relevant to the Statement of Grounds, in particular ground 2 thereof.

3. Records if any in the possession power procurement or control of the respondents relating to steps if any taken to investigate the serious breach of section 19 of the Refugee Act, 1996 relating to the applicant. Reason: the said records if they exist are relevant to the Statement of Grounds, in particular ground 8 therein and paragraph 11 of the Affidavit of the applicant.

4. Any other records relevant to this action. Reason: the said records are relevant to the issues set forth in the Statement of Grounds herein."

It is submitted that these documents are relevant and necessary for the purpose of disposing fairly of "the cause" and for saving costs. "The cause", of course, for the purpose of this application, is simply the application for leave to seek judicial review, rather the hearing of the substantive matter in the event of leave being granted. Of relevance in that regard is the fact that on the leave application the respondents have not filed any replying affidavit, and accordingly the facts set forth in the affidavit of the applicant grounding his application for leave remain uncontested, and the court is entitled to proceed on the basis that those facts are not in dispute for the purpose of the leave application. If leave be granted, then the respondents may well file a replying affidavit and a Statement of Opposition, and the substantive application would proceed on the basis of contested facts, to the extent that the respondent's affidavit puts facts in issue.

The documents sought in paragraphs 1 and 2 of the applicant's solicitor's letter dated 27^th February 2004 are said to be sought as being documents which were before the Minister when he made his decision, and are said to be relevant to Ground 2 of the Statement of Grounds filed.

Ground 2 in the Statement of Grounds states as follows:

"2. In view of the implications of the decision for the applicant, there was a fundamental failure of fair procedures by the First named respondent in failing to make available relevant materials to the applicant and in paragraphs 4 and 5 of a minute dated the 2^nd day of April 2003 and Tab X. The decision was arrived at by procedures contrary to natural justice."

The fact is that the Minister wrote on the 8^th April 2003 indicating that he proposed to make the revocation order, and that following that letter he sent material to the applicant's solicitor which had been considered by him when making his decision, but he omitted two paragraphs, namely 4 and 5 from that material, as well as an annex referred to as Tab X. Section 21(3)(a) of the Refugee Act, 1996 allows a person who has been notified of a decision to revoke a declaration a period of 21 days in which to make representations in writing to the Minister, and the Minister is required to take those representations into account before deciding the matter. The solicitor made such representations by letter dated 1^st May 2003, but these were described as preliminary submissions, and the letter explained that he was attempting to obtain information about the applicant's conviction in Belgium and that he would need considerably more time than the 21 days allowed under the Act. The letter also noted that the material which had been supplied by the Minister was incomplete. The submissions made included a submission that the material furnished does not contain any reason or reasoning in respect of the decision to revoke the applicant's declaration, and are insufficient to permit the applicant to make proper representations. It was also submitted that the applicant must be assumed to have been rehabilitated as a result of having served his sentence in Belgium, and that he will not re-offend, and that until the contrary is demonstrated he does not present a threat to public policy, which is the stated reason why his declaration has been revoked.

The application presently before the Court is for leave only, and no replying affidavit has been filed by the Minister. In Ayaya v. The Minister for Justice, Equality and Law Reform and others, unreported, 2^nd May 2003, Ms. Justice Finlay Geoghegan considered the question of whether such an applicant for leave was entitled to discovery of documents at the leave stage, in view of the normal rule that discovery ought not to be granted until pleadings were closed. It had been submitted in that case that the normal rules should not apply since the consequences of failing to obtain leave were of such seriousness to an applicant that he must be able to make his best possible case at leave stage, and also because the respondent was on notice of the leave application in these cases. Ms. Justice Finlay Geoghegan referred to that part of the decision of the Supreme Court on the Article 26 reference re The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360 where the question of discovery of documents was considered in a limited way. She referred to the passage at page 397 where it is stated:

"However, in any event, an applicant, who establishes that his right of access to the courts has been prejudiced by the failure of the relevant statutory authority to make available material which is appropriate and necessary to enable him to exercise that right, is entitled to apply to the High Court for discovery of documents."

Ms. Justice Finlay Geoghegan went on to say as follows:

" It may be implicit in the above approach of the Supreme Court that an applicant is entitled to obtain access to all the material which was before the decision maker prior to the granting of leave or even prior to the issuing of an originating notice of motion. It may also be that on the principles submitted by Counsel, the applicant would be entitled to such material."

She went on to note the practice which had developed whereby the authorities in these cases make available "all the material which was before the relevant decision maker."

In the present case, the task of the applicant at the leave stage is to satisfy the Court that on the assumption of the facts set out in the grounding affidavit, which is uncontested at this point in time, there are substantial grounds for contending that the decision is invalid or ought to be quashed. In the present case the alleged ground is the failure to furnish all the material which was before the Minister when he made his decision. Since the applicant has not seen paragraphs 4 and 5 and Tab X he cannot say in any certain way that the material in question is necessary or would assist him in his case. Clearly such material is relevant since it forms part of the material which was before the Minister when he made his decision, but without seeing the material he cannot say if it is necessary for the purpose of establishing substantial grounds for seeking leave. The respondent has stated that the material in paragraphs 4 and 5 consists of legal advice and as such is privileged. Tab X is said to be information received from the Belgian authorities and which they have requested be kept confidential.

In the Ayaya decision referred to above, Ms. Justice Finlay Geoghegan referred to a passage from the judgment of the Chief Justice in Burke v. Director of Public Prosecutions [2001] 1 I.R. 760 in which he stated:

"… I would, on the basis that the category of documents is clear… conclude that it would be going too far to say that they could not contain any material which would either help the applicant or hinder the respondent."

The Court will not countenance a situation in which the application for discovery amounts to what has become colloquially known as a fishing exercise, and it is therefore necessary that the applicant for discovery must clearly identify a document or documents or a category of documents which he knows is or are in the possession or power of procurement of the other side, and which either will or could assist him in making his case, or hinder that of his opponent.

In the present case the documents sought under heading one, namely paragraphs 4 and 5 and Tab X are clearly identified. The difficulty is that while they have to be regarded as relevant, the applicant has no way of knowing until he sees them whether they are or could be helpful to his case or a hindrance to his opponent's case. But I am satisfied that by seeking these particular documents the applicant is not simply engaged upon a fishing expedition in the hope that something will turn up. The question of whether the documents are such that privilege may attach to them is another matter and not one which I have to deal with on this application. If discovery is ordered the question of privilege can be debated and dealt with in the usual way, and if necessary by the court dealing with that aspect of the case looking at the documents and deciding the matter.

The documents set forth at paragraph 2 of the letter dated 27^th February 2004 would be in the same category as paragraph 1, but the applicant is unable to identify any other such documents, and so this general trawl for documents relating to the criminal proceedings in Belgium against the applicant can be said to fall fowl of the fishing expedition rule.

The documents sought in paragraphs 3 and 4 of the said letter are certainly not identified in any way, and could not be ordered.

The only question in my mind is whether the documents sought at paragraph 1 are documents which the applicant should have discovered at this stage before leave is granted, or whether they are more properly relevant and necessary at the later stage if leave is granted. On balance it seems to me that the applicant in the present case must be in a position to make his best possible case at the leave stage. That is not to say that he is in any better position of entitlement to discovery than is a person who has been granted leave. To my mind these documents are documents which a person to whom leave has been granted would be entitled to on discovery. The documents described at paragraph 1 of the letter dated 27^th February 2004 are part of the material which was before the Minister when he made his decision, and that is the very reason why the Minister furnished same, albeit in truncated form, to the applicant's solicitor, and before any submissions were made. I think it is therefore arguable that the documents would be such as might have assisted the applicant in making the submissions were made, and which the Minister is obliged to consider before making his final decision in the matter. To not order the discovery of same at this pre-leave stage has the potential to place the applicant in a less advantageous position in making his application for leave, than if they were discovered, and it therefore seems unfair to require leave to be granted prior to discovery being ordered. There is no doubt that the applicant's application for leave will be contested by the respondent since he is on notice, and fairness requires that the applicant at least has prior to his application for leave the material which was before the Minister when he made his decision, subject always to the usual rules regarding privilege being claimed. The fairness of that is manifest from the fact that the respondent has furnished, in accordance with what seems to be an invariable practice, the documents which were before the Minister, and would have furnished the documents which are now sought if it was not for the fact that privilege is being claimed over the contents of paragraphs 4 and 5, and confidentiality is claimed in respect of Tab X. The real issue is therefore one of privilege, and that matter cannot be dealt with in the absence of discovery being ordered.

I therefore order discovery to be made by the respondents in respect of the documents described at paragraph 1 of the applicant's solicitors letter dated 27^th February 2004, namely "Paragraphs 4 and 5 of and Tab X to the Minute dated 2^nd April 2003 in relation to the applicant. I refuse discovery in respect of the balance of the documents sought.