THE SUPREME COURT
[Appeal No. 16/2013]
Clarke J.
Laffoy J.
Dunne J.
BETWEEN
D. T.
APPLICANT/APPELLANT
AND
THE MINISTER FOR JUSTICE AND LAW REFORM
AND REFUGEE APPEALS TRIBUNAL
RESPONDENTS
Judgment of Ms. Justice Dunne delivered the 14th day of June 2017
An application was brought before this Court pursuant to a notice of motion dated the 15th June, 2016 and returnable for the 3rd October, 2016 on behalf of the respondents herein where the respondents sought the following relief:
“An Order pursuant to the inherent jurisdiction of this Honourable Court dismissing the within proceedings for abuse of process.”
Background
The applicant/appellant (hereinafter referred to as “Mr. T.”) states that he was born in Bhutan in 1964 to Bhutanese parents and that he is of Nepalese extraction. He arrived in this country on the 7th April, 2010 and applied for refugee status. The Refugee Applications Commissioner (hereinafter referred to as “the Commissioner”) found that he was a stateless person and determined that Nepal was his country of habitual residence. A number of adverse determinations were made in relation to Mr. T.’s credibility and ultimately it was determined that Mr. T. had failed to establish a well-founded fear of persecution. Accordingly, it was recommended that he should not be declared a refugee. Mr. T. appealed that decision to the Refugee Appeals Tribunal (hereinafter referred to as “the Tribunal”). It determined that he was stateless and that his country of habitual residence was Nepal. It was concluded that he had given no cogent evidence to the Tribunal that he had either suffered persecution for a Convention reason in Nepal in the past or that there was a real risk that he would do so in the future were he to return there and as an alternative finding, it was also found that Mr. T. lacked personal credibility. In that context a number of issues were relied on. It is not necessary to deal with those issues here. Following the decision of the Tribunal on the 9th February, 2011, an application for leave to apply for judicial review in respect of the decision of the Tribunal was brought by Mr. T.
Judgment was delivered in respect of that application by O’Keeffe J. on the 18th July, 2012. O’Keeffe J. refused to grant judicial review of the decision of Tribunal on the basis that Mr. T. had failed to establish substantial grounds for challenging the decision. However, subsequent to the delivery of his judgment an application was made for leave to appeal pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 and an order was made by the Court on the 21st December, 2012 certifying that the decision of the Court involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The point of law certified was as follows:
“Where the executive agencies of a State arbitrarily deny a person his or her citizenship, is it correct to assess that person’s claim to refugee status on the basis that the State is his or her ‘country of nationality’ for the purposes of Article 2 of Directive 2004/83/EC and s. 2 of the Refugee Act 1996 or is it correct to regard that person as ‘stateless’?”
It would be helpful at this stage to set out the factual background to the case as it appeared to be when the matter was before the High Court. O’Keeffe J. in his judgment described the background as follows:
“2. The applicant asserted that he was born in Bhutan in 1964, to Bhutanese parents and that he is of Nepalese extraction.
3. He claimed to have been involved for many years in support of the cultural rights of people of Nepalese ethnicity in Bhutan and was active in the Bhutan People’s Party (‘BPP’). He stated that his brother, [T.B.T], was the original founder of BPP and a leader of that movement in the district of Samchi, where the applicant resided from birth. On the 12th July, 1989, the applicant’s brother was allegedly murdered by the Bhutanese authorities whereupon the applicant claimed to have become the leader of the movement in his area.
4. He asserted that on the 5th September, 1990, he organised a demonstration in Samchi Bazar, which resulted in his detention and torture in a police station. After five days, he was allegedly informed that he would be released if he signed a paper agreeing to leave Bhutan. The applicant asserted that on the 10th September, 1990, he signed the paper and was released from the Samchi police station. He then alleged that on the 14th September, 1990, following threats of further detention and torture, he and his family left their home in Bhutan.
5. The applicant stated that he resided in Nepal, at Beldangi 1 Refugee Camp, between 15th September, 1990 and 15th January, 2010 at which point he claimed that he returned to Bhutan. The applicant asserted that he did so in the belief that following UN pressure, he would be able to reclaim his family property in Bhutan but instead found himself arrested, detained and tortured until his escape on the 21st March, 2010.
6. He claimed then to have left Bhutan, first travelling to India, then on to Moscow, before entering Ireland on 7th April, 2010, whereupon he applied for refugee status.”
Following the order of the High Court certifying that an issue of exceptional public importance arose, a notice of appeal was filed on the 10th January, 2013. One of the issues arising on the appeal concerns the conclusion of both the Commissioner and the Tribunal to the effect that whilst it was accepted that Mr. T. was of Bhutanese origin, the conclusion was reached that he was stateless and that his country of “former habitual residence” was Nepal. On that basis, the question of future risk of persecution was assessed by reference to his account of his time in Nepal and country of origin conditions in that state. By contrast, Mr. T. has always maintained that he was a Bhutanese national and that the action of the Bhutanese authorities in allegedly stripping him of his citizenship was an act of persecution and therefore he claimed that he should be assessed as a Bhutanese national and, accordingly, by reference to conditions in Bhutan or, alternatively, as a stateless person whose country of former habitual residence was Bhutan. These are important issues so far as the appeal is concerned. Thus, as can be seen, the question of Mr. T’s nationality and his place of residence is of crucial importance in the consideration of the point of law under appeal.
On the 27th January, 2014, an issue arose which led ultimately to the motion before this Court. On that date, the United Kingdom Home Office gave information to the Minister as part of the co-operation between the British and Irish authorities in their joint administration of the Common Travel Area. It appears that the Minister for Justice and Law Reform passed on fingerprints of Mr. T. to the Home Office and a response was received from the Home Office stating that the fingerprints provided by the Minister matched the records of the Home Office and that a person with the following details had been identified on the Home Office Visa Central Reference System as follows:
“Name: [C.R.]
Date of Birth: 12/04/1965
Nationality: Nepal
Visa Type: Multi-Visit
Validity: 02/02/2010 - 02/08/2010
Destination: United Kingdom
VAF Number: 2859936
Issuing Post: New Delhi (BHC)
Passport No: 4168375.”
It was also stated that:
“The visa was issued on 2nd February, 2010. Previous visit visas, using the same personal details had also been issued, valid from 7th January to 7th July, 2009; and 16th July, 2009 to 16th January, 2010.”
Further details were enclosed by the Home Office to the Minister.
The information provided by the United Kingdom Home Office referred to in the preceding paragraph was exhibited in the affidavit of John Moffatt grounding the motion before this Court seeking to have the proceedings dismissed for abuse of process.
The affidavits
It is necessary to refer in some detail to the factual situation as set out in the affidavits of John Moffatt on behalf of the Tribunal on the one hand and Mr. T. and on his behalf on the other hand.
As has already been mentioned, issues of concern arose as to the identity of Mr. T. in 2014 when the United Kingdom Home Office supplied information to the Minister as a result of a fingerprint check carried out by the Home Office on fingerprints of Mr. T supplied by the Minister. The information supplied showed that an individual described as a Nepalese national named R.C. and with a date of birth of the 12th April, 1964 had apparently applied for a six month visa to visit the United Kingdom to attend a conference and the application for a visa was made on the 1st February, 2010 in New Delhi. Other details were given including an address for the applicant for that visa in Nepal. The address given was not that of a refugee camp. This information was obtained from the Visa Central Reference System of the Home Office. It also appeared that previous visas in respect of the same personal details had been issued with a date of validity of the 7th January, 2009 to the 7th July, 2009 and the 16th July, 2009 to the 16th January, 2010 respectively. On that basis, Mr. Moffatt contended that it was clear that Mr. T. had been holding himself out to be a Nepalese national since at least 2008 and that the information held by the British immigration authorities materially contradicted his claim in several important respects. In particular, it was stated that it seemed improbable that a stateless person of Bhutanese origin would have access to a Nepalese passport and be able to use it to travel to the United Kingdom on three separate occasions in 2009 and 2010.
Reference was made to some of the information provided on the questionnaire completed by Mr. T. in the course of his application to the Commissioner when he first sought asylum. Further reference was also made to the interview conducted by an authorised officer of the Commissioner on the 9th August, 2010. Mr. Moffatt explained that Mr. T. had told the Refugee Applications Commissioner that he had been arrested in Bhutan on the 16th January, 2010 and remained in detention there until his escape on the 21st March, 2010 following which he travelled to India on the 22nd March remaining there for ten days before travelling by truck via Moscow to Ireland. Given that an application for a visa was made in India on the 1st February, 2010 at a time when Mr. T. stated that he was in detention in Bhutan but where Mr. T’s fingerprints were used in connection with the application for the visa, it was contended that the appellant had deliberately misled the Commissioner and the Tribunal as to his true identity and nationality and that the basis of his asylum claim and his application for judicial review had been prosecuted on a false basis. It was in those circumstances that the present application before this Court was initiated.
The questionnaire
When Mr. T. made his application for asylum, he completed the standard questionnaire which is dated the 21st April, 2010. The questionnaire is designed to elicit details about an individual’s background, the documentation they rely on to support their claim and the basis of their claim to be a refugee amongst other things. Mr. T. in giving details as to his identity gave his name as Mr. T. and said that no other name was used by him. It described his birth in Bhutan and that he had lived there from the date of his birth, which was given as the 1st January, 1964, until September 1990. He described his ethnic group as being Nepali. In terms of his work history he stated: “I was a farmer. I used to work in my own farm”. (This was in response to a question asking “If you are not employed did you receive any social assistance payments in your country of origin?”) Having set out details of his complaints in relation to events in Bhutan he explained that he was forced to leave Bhutan empty-handed and that he arrived on the 15th September, 1990 in Nepal with his whole family.
He complained that his fear was of the Bhutanese Government. Further he said that he feared that if he returned to Bhutan he would be arrested, tortured and possibly killed. He stated that he had been in Nepal between 1990 and had stayed there until the 15th January, 2010 when he returned to Bhutan and was arrested and detained there until he escaped from detention on the night of the 21st March, 2010. It would appear that following a change of regime in Bhutan in December 2006 and other changes that occurred there, together with the possibility that property seized from persons such as Mr. T. would be returned to them, he left Nepal and went back to Bhutan in 2010.
His description of his journey ultimately from India to Ireland was as follows:
“There is not any immigration control between Bhutan and India. Beside that I left Bhutan in the night via jungle. My agent arranged a fake Indian passport. I came from Delhi to Moscow with that passport. From Moscow to Ireland I came by lorry without any passport."
He added that he was accompanied on his journey:
“By an unknown person from Moscow to Ireland, by an Indian agent from New Delhi to Moscow. I do not know the address and with my two nephews who were with us in the prison who came up to New Delhi. I do not know their present address. After escaping from the prison, we came to Nagar Katha, India to my friend . . . house and changed our clothes. He gave 3,000 Indian currency.”
He went on to explain that his aunt paid money to an agent and that the agent took him to Moscow and handed him over to another agent and that he was then put in the lorry and came by the lorry to Ireland.
Section 11 interview
In the course of his s. 11 interview, Mr. T. was asked about documentation which would help to establish his identity. He produced eighteen photographs and a Metro Post national daily newspaper. He received those from friends in Nepal. Apart from that newspaper he was asked were there any other media reports about him and he replied that he only had that one for now but there might be more. Later on in the course of the interview he was asked what he feared if he returned to Nepal and said that he would not be safe in Nepal. Asked about why he did not seek asylum when he arrived in Moscow he said that he had been told by his aunt that Ireland was the safest place and that he could seek asylum there and that is why he came to this country. He said that when he was in India, he stayed hidden in his aunt’s house and did not go out in public because if the authorities had arrested him he would be sent back to Nepal. He went on to describe some of his political activities whilst in Nepal including a protest march at the border of India and Nepal. That occurred in 2007.
Following the receipt of information from the U.K. Home Office, the Chief State Solicitor wrote to the solicitors for Mr. T. by letter dated 10th May, 2016 asking him to strike out the proceedings in the circumstances previously described. A response was sent by the solicitors for Mr. T. by letter dated the 11th May in which it was stated as follows:
“Having had the opportunity to take our client’s instructions on its contents, we believe that there is no inconsistency between the information provided by the U.K. authorities and Mr. T’s evidence to date: it is and always has been his account that his travel from India was organised by his aunt in New Delhi with the assistance of a people smuggler and that as a stateless person he was constrained to travel on a false passport arranged and provided by the smuggler. Indeed, it appears that such limited information as has been provided corroborates his account.”
There followed an exchange of affidavits starting with a replying affidavit of Mr. T. In that affidavit sworn on the 12th July, 2016 a number of new pieces of information were furnished by Mr. T. First of all he said that he was a central committee member of the Bhutan People’s Party and that the founder president of that party had been killed in Nepal in 2009. He said that in October 2009 his aunt who lived in New Delhi visited him and introduced him to a contact of hers, an Indian man whose name was Dada. This meeting took place in Nepal. Mr. Dada was to obtain documents and visas for the purpose of enabling Mr. T. to travel to the West. He said that Mr. Dada took him to an office in Kathmandu and arranged to have photographs taken of him and to have his fingerprints recorded. He said his aunt further came to see him in Nepal in January 2010. She said that she had heard it was now safe to go back to Bhutan. He decided to return there and to reclaim his properties. His account of his return to Bhutan, arrest and detention remained the same. He gave similar details as previously in relation to his journey from New Delhi to Dublin via Moscow. He said that he believed that Mr. Dada applied for and obtained a false passport, together with a U.K. visa for him in a false name while he was in Bhutan. He said he did not attend at the U.K. High Commission in New Delhi himself. He suggested that the visa security at the British High Commission in India was not as strict in 2009/2010 as it is now. He stated that he was not R.C. He said he was not a Nepalese citizen but a stateless Bhutanese. He said he used a Nepalese passport obtained for him to travel to Russia before coming to Ireland. Whilst acknowledging that visas had already been issued in respect of the Nepalese passport, he said they were not issued to him and he did not use them to travel to the U.K. He said his details were used to apply for a British visa while he was in prison in Bhutan. He said that he did not use the British visa obtained by the agent but reiterated that he had travelled to Moscow and then by truck to Ireland.
A supplemental affidavit was then sworn by Mr. Moffatt on the 15th September, 2016. In that affidavit Mr. Moffatt pointed out that in the affidavit, Mr. T. referred to travelling to Russia using a Nepalese passport prior to travelling to Ireland. Mr. Moffatt pointed out that in the questionnaire completed by Mr. T. he stated that he had travelled on a fake Indian passport to Moscow. Likewise in the course of the interview conducted on the 12th May, 2010, he had stated that he travelled from India on an Indian passport with his picture but under the name of B.P.Y. He had never stated that he had travelled on a false Nepalese passport as he has now claimed in the affidavit of the 12th July, 2016. Neither had he previously made any reference to obtaining a British visa for a passport in the name of R.C. prior to his travel to Ireland. Complaint was also made that he had failed to give any explanation as to the whereabouts of the passport in the name of R.C. together with the six month British visa granting Mr. T. permission to visit the U.K. for business purposes.
Further contradictions were pointed out between the information supplied by Mr. T. in the questionnaire and in the affidavit of the 12th July, 2016. For example in the questionnaire, Mr. T. had stated that he never had a visa to enter any country. In addition, he stated in the course of his interview that he had never applied for a visa to enter Ireland, the U.K. or any other EU country. What he stated in the course of the interview was that there was a visa on a false Indian passport to enter Russia.
Issue was also taken as to the number of occasions on which he met Mr. Dada. In this context, Mr. Moffatt pointed out that visas using the same personal details were issued by the United Kingdom on three separate occasions. A second affidavit was sworn by Mr. T. on the 3rd October, 2016. In the course of that affidavit he referred to a number of mistakes in his affidavit sworn on the 12th July, 2016 which he said were due to difficulties in translation. He had not used a translator for the purpose of preparing that affidavit. Thus, he corrected the date upon which he said he had met the agent, Mr. Dada, in Nepal. He said that he must have met this man in 2008. Further he said that the leader of the BPP Party was murdered in 2001 and not September 2009 as he had earlier said. Similarly, he referred to the statement that he had used a false Nepalese passport to travel to Ireland. He then said:
“I consistently told the asylum authorities, I used an Indian passport with a Russian visa when leaving the airport in New Delhi. On arrival in Moscow the agent handled all the documents. We passed through the airport together and the agent retained the documents. I never actually saw the Nepalese passport at all, but it does not surprise me that the agent arranged more than one passport or multiple visas.”
He went on to say that his instructions on this issue had been misunderstood. Insofar as the Home Office file indicated that three applications were made for visas in the name of R.C. between December 2008 and 2010, he acknowledged that those applications were made using details he gave to Mr. Dada in Kathmandu. He said that he was not aware of the making of those applications and went on to suggest that none of the British visas were ever actually used. He explained that as a stateless person he had no alternative but to enter “the murky world of false passports and fraudulent visas”. He reiterated that he had not deliberately misled the asylum authorities in Ireland or the courts.
An affidavit was also sworn by Albert Llussa, a solicitor acting on behalf of Mr. T., explaining the arrangements in relation to the interpretation/translation of the affidavit sworn on the 12th July, 2016 and the affidavit sworn subsequently. Nothing particular turns on that affidavit. There was also an affidavit provided by Jeny Singh, a Nepalese national, who assisted in the translation of the affidavit sworn on the 3rd October. Again nothing of note turns on that affidavit.
A third affidavit was then sworn by Mr. Moffatt. In this affidavit, Mr. Moffatt set out details of further correspondence between the Tribunal and the U.K. Home Office. The correspondence included a number of queries arising from the information contained in the affidavit of Mr. T. sworn herein on the 3rd October, 2016. Mr. Moffatt places considerable reliance on the information contained in the correspondence supplied by the Home Office. Thus, in the response of the 7th December, 2016, it is stated that at the time of submitting a visa application, the subject will have booked an appointment at a visa application centre of his choice. The subject’s biometrics would have been enrolled on Home Office equipment by the staff of a commercial partner working on behalf of the Home Office. There were no records to suggest that the subject’s fingerprints were taken on arrival at London Heathrow airport on the 25th July, 2009. Electronic records indicated that all three visas were delivered via an agent. They further disclosed that checks were carried out with the subject’s bank to verify information provided for the first application in 2008. Further checks were not carried out on supporting documentation for the subsequent applications. In a further e-mail of the 16th December from the U.K. Home Office, a copy of a landing card was provided showing the arrival of R.C. in London Heathrow on the 23rd July, 2009. It was further stated in that e-mail that while there are no records of fingerprints having been taken from R.C. at any time at a U.K. port, the standard practice from 2007 was that such fingerprints were taken in the case of all third country nationals. On that basis it is assumed by Mr. Moffatt that Mr. T’s fingerprints were taken in 2009 on arrival in Heathrow but that those records have not been retained by the Home Office. Mr. Moffatt concludes that the person travelling was Mr. T. In that affidavit, Mr. Moffatt stated:
“That as a result of the recent correspondence from the solicitors on behalf of the appellant and the information provided by the Home Office, it is evident that the appellant did not give a truthful account to the Refugee Appeals Commissioner, the Refugee Appeals Tribunal, the High Court, or indeed this Court, of either his true identity or the relevant facts of his life prior to coming to this State and applying for asylum.”
He went on to say that Mr. T. has prosecuted his asylum claim and these proceedings on a false basis. Mr. Moffatt referred to a letter received from the solicitors for Mr. T. dated the 14th October, 2016 in which it was stated on behalf of Mr. T. as follows:
“Further to the Supreme Court’s suggestion that enquiries be made as to who is R.C., we have asked Mr. T. about this. He instructs that he adopted this name as an alias in 2001 because of fears for his safety in Nepal when using his real name, D.T. He did this to avoid the attention of Bhutanese active in that country, and used the alias - a typical Nepalese - to campaign as a columnist and political activist whilst taking refuge in Nepal. He wrote articles under the alias for diverse Nepalese media outlets, and was arrested and interrogated by the Nepalese security forces in 2003, 2005 and 2007 as a result of his journalist activities. He has drawn our attention to references to his activities as R.C. and, in particular, to his detention in 2003, in reports of NGOs, copies of which we now enclose for ease of reference. You will see that Amnesty International issued an alert in respect of his arbitrary detention by the Nepalese authorities in 2003.
Mr. T. believes that the agent whom he met in Kathmandu in 2008 decided to use his alias as R.C. as the name to be placed in the false Nepalese passport. Mr. T. does not know whether the agent made or obtained a counterfeit passport, or altered an existing passport. Mr. T. is resolute in his instruction that he is not R.C. (though he did use that name as an alias) and that he did not visit the United Kingdom in 2009. He is D.T., as set out in his application for refugee status and has been an active and committed member of the Bhutan People’s Party which has campaigned for the rights of the Nepali ethnic minority from Bhutan. He has suffered not only in Bhutan but in Nepal, as a consequence of his political activism. He was present at the notorious Mechi Bridge incident on the Nepalese/Indian border in 2007.”
For completeness I should mention that a number of documents were supplied which relate to the detention of R.C. described as a journalist in Nepal from time to time. Curiously this material was also exhibited in an affidavit sworn by Keshav Paudel, an interpreter/translator on the 17th January, 2017. In that affidavit Mr. Paudel exhibits a draft affidavit of Mr. T. replying to the last affidavit of Mr. Moffatt but it has not been sworn by Mr. T.
Discussion
At this stage there are three versions of Mr. T’s story. The first version told by Mr. T. to the Commissioner and the Tribunal is that he is a national of Bhutan who was a farmer and who fled Bhutan in 1990 and became a political activist with the Bhutan People’s Party in Nepal. He remained in Nepal until January 2010 when he returned to that country, was arrested and detained for approximately six weeks or so until he escaped from there to India and ultimately fled to Ireland and sought asylum. The second version of Mr. T’s account is that now stated to be the true version of events by the Tribunal, namely that Mr. T. is in fact a Nepalese national who is a journalist who has travelled to the U.K. on a number of occasions for conferences, having obtained visas to permit him to do so and having obtained one of those visas at a time when he claimed to have been detained in Bhutan. Clearly he could not have attended in person for the purpose of obtaining such a visa if he was in fact detained in Bhutan. The third version of events is one that has now emerged from Mr. T. in response to the information obtained by the Tribunal to the effect that he is a Bhutanese national who fled to Nepal in 1990 and assumed a Nepalese alias, namely that of R.C. He has maintained and continues to maintain that he is in fact D.T. and not R.C. and that he is Bhutanese and not Nepalese even though he now admits to having used the name, R.C., as an alias.
I have to say that I am deeply concerned by the fact that the account given by Mr. T. to the Commissioner on the questionnaire referred to above, in the course of the s. 11 interview and before the Tribunal is now so different to that which has emerged in the affidavits sworn by Mr. T. on foot of this motion. Having viewed the affidavits sworn by Mr. Moffatt and having examined the various exhibits contained in those affidavits together with the affidavits sworn by and on behalf of Mr. T. and the exhibits contained in those affidavits, I am sceptical, to say the least, about the information provided by Mr. T in the course of the asylum process and in these proceedings. Mr. T. has sought to explain inconsistencies in the first replying affidavit he swore by reference to difficulties in relation to translation/interpretation. I have no difficulty in accepting that there may be some issues for individuals in setting out their story in a foreign language without the assistance of a translator but I find it somewhat difficult to accept difficulties in translation as being the reason for the discrepancies or errors found in the first replying affidavit of Mr. T. However, given the significant conflict on affidavit between the Tribunal and Mr. T., I would be reluctant to come to a final conclusion on those conflicts of evidence in the absence of a process involving a plenary hearing with oral evidence where all of the conflicts of evidence can be tested and teased out. The present proceedings do not provide an appropriate vehicle for such an approach. Mr. T. in the course of his written submissions offered to give evidence before this Court as to his true identity. That would be wholly inappropriate given that there would be a need to cross examine Mr. T. and presumably, it would be necessary for the Tribunal to call evidence if it was sought to adduce evidence to contradict any evidence given by Mr. T. This highlights the fact that the motion before the Court in which the facts relied on by Mr. T. are heavily disputed is not the best method in which to resolve disputed factual issues.
Counsel on behalf of the Tribunal has urged on this Court that these proceedings should now be dismissed as an abuse of process. Reliance has been placed on the decision of this Court in the case of Sivsivadze v. Minister for Justice and Equality [2015] 2 ILRM 73 (“Sivsivadze”) where it was stated by Murray C.J. at para. 26 as follows:
“I think this matter can be dealt with fairly succinctly. First of all, to state the obvious, the appellants could not pursue or obtain any relief based on facts that are now exposed as being false. Secondly, if these were judicial review proceedings simpliciter, in which the appellants sought the discretionary remedy of judicial review in respect of a discrete decision affecting them, there are ample grounds upon which the Court could consider dismissing an appeal in such matters on the grounds of the egregious abuse of process of the courts in this case.”
In that case even though there had been admitted serious misconduct on the part of the appellants in that particular case, the Court did not dismiss the appeal on the basis of egregious abuse of process but rather considered the substantive issues in the case and dealt with the matter on that basis and as a consequence of the consideration of the particular issues in the case, the appeal was then dismissed.
Reliance was also placed on the decision of the High Court (Cooke J.) in S.P. [Sierra Leone] v. Minister for Justice [2012] IEHC 12 where proceedings were dismissed because of inherent inconsistencies in the applicant in those proceedings attempts to explain away information put on affidavit by the Minister which information had been received from the Home Office and secondly because on the new version of events put forward by the applicant it was clear that the asylum claim had been prosecuted on an entirely false basis. It was noted, for example, that (at para. 24 et seq):
“The applicant herself admits in her affidavit as quoted above that she did indeed voluntarily visit the United Kingdom using a passport which she claims was false: the U.K. authorities do not say that it was; only that its visa was falsified. Quite apart from the crucial doubt which is thereby raised for the respondent at this stage as to whether the applicant is indeed from Sierra Leone and not from Nigeria, what is significant is that she admits to having been able to leave Sierra Leone voluntarily in 2002 (or 2003) at a time when she now claims to have been the subject of persecution by her uncle. She further asserts that she then returned voluntarily to Sierra Leone to that uncle and that source of persecution.
In the judgment of the Court it would be manifestly unreasonable and inequitable to require the respondent to meet a case which purports to challenge the reliance on the applicant’s lack of credibility in the asylum process as described in paragraph 11 above when that process has itself been falsified by the applicant’s deliberate concealment of a significant event relevant to both her claim and her personal history.”
Thus the Court refused to permit an application for judicial review to be made.
There are undoubtedly contradictions and inconsistencies between the version of events given to Commissioner, in the course of the s. 11 interview and the Tribunal with the version deposed to in the affidavits sworn in response to this motion. However, I find it difficult to see how that conflict can be resolved in the course of this hearing. Clearly there are issues about the visas issued to R.C. which were obtained using Mr. T’s fingerprints, in the name of R. C., a name which Mr. T. now admits to having used as an alias. One could also refer to the landing card which was apparently filled in by R.C. at London Heathrow in 2009. One would be curious to compare the writing on the landing card with the writing on the questionnaire completed by Mr. T.
Despite the concerns expressed by me in relation to the veracity of the material that has been put before this Court by contrast with the material put before Commissioner and the Tribunal, it does not appear to me to be possible to resolve the conflict of evidence on the affidavits before the Court. I note that in this case unlike the case of Sivsivadze referred to above, and S.P., far from admitting the falsehoods in the documents before the Court, Mr. T. in this case stoutly maintains the position that he is D.T., a Bhutanese national who is stateless.
The point of law certified in this case by the High Court was certified in circumstances where an issue arose on the basis of the case then put forward by Mr. T. as being a stateless person. The question of whether Mr. T. is or is not stateless depends upon a resolution of the conflicts of evidence that I have described above. The underlying basis for such a claim may not exist. In other words, if Mr. T. is, in fact, a Nepalese national, then the issue of statelessness simply does not arise. That being so, it seems to me that it would be inappropriate to proceed to a consideration of the point of law certified by the High Court in this case given that the Court would be engaged on an exercise which would amount to the determination of a point of law based on a hypothesis. In my view, such a course would be completely inappropriate and that being so it seems to me that it is necessary to dismiss this appeal on that basis rather than on the basis that the proceedings amount to an abuse of process.
Conclusion
The High Court in this case certified a point of law based on the version of events put forward in the course of the proceedings before Commissioner and the Tribunal to the effect that Mr. T. was a Bhutanese national and was effectively stateless. A significant conflict has arisen as to whether that version of events is correct or not. If it transpires that Mr. T. was not in fact a Bhutanese national but was instead a national of Nepal, the question of law certified by the High Court simply would not arise. In those circumstances, given that there is a significant conflict of evidence between the parties in light of the information that has now come to hand from the United Kingdom Home Office, I am of the view that it would not be proper to determine the point of law certified given that it is not now possible to say whether Mr. T. is a Bhutanese national as he claims or whether he is, in fact, R. C., a Nepalese national, as this would require the Court to determine what may be a hypothetical question. For that reason, I am satisfied that it would be appropriate to dismiss this appeal.
I note that counsel on behalf of the Tribunal has indicated that in the event that this appeal is dismissed, it remains open to Mr. T. to pursue an application under the provisions of s. 22 of the International Protection Act 2015 in the course of which the conflicts of evidence highlighted in these proceedings could be explored and hopefully, resolved.
In all the circumstances of this case, I would dismiss the appeal.
