A HIGH COURT judge has quashed an attempt by the State to deport a Chinese national after ruling that the State withheld key information during a judicial review of his deportation order.
In a ruling last month, Mr Justice Richard Humphreys found that the State “misled” the court by “obscuring” details about Zhigang Shao’s address, contained in a Freedom of Information request his solicitor made which was relied upon for evidence in the review.
The issue arose after it emerged that the Garda National Immigration Bureau (GNIB) had registered Shao as living at an address he provided upon entering the country on a student visa in April 2002.
Shao, who continued to live in the State illegally from July 2002, later gave a new address in Drogheda to gardaí when he was arrested in Dublin in 2009.
The court heard that the Department of Justice and Equality subsequently sent a notice and deportation order under the Immigration Act to this new address.
However, it later emerged that Shao’s address was incorrectly registered with the GNIB, who had been given the new address, and he successfully argued that these notifications had not been properly served by the State.
In a ruling, which was re-opened after this evidence emerged, the judge found that the State should have acknowledged that the GNIB was not able to update Shao’s registered address.
He also ruled that Shao’s registration details should have been submitted in affidavits to the court by the GNIB and the department, which would have made the problem clear during the course of the review.
Orders sent to ‘insufficient address’
The original order to deport Shao was made in February 2013, 11 years after he entered the State on a three-month student visa in April 2002.
He first came to the attention of authorities in September 2009, when Detective Garda Michael Byrne of the GNIB saw him “obstructing traffic” on Dublin’s Parnell Street.
Byrne asked Shao to produce an identity at the time, and subsequently arrested him when he failed to do so. The charges against him were later struck out, but the GNIB agreed to issue him with orders under the Immigration Act.
In his initial ruling, the judge noted that Shao told Byrne that his name was Junyun Wang before he was arrested, but that he gave his real name and his address as “25 Broadmeadow, Drogheda, Co Louth” once detained.
However in a affidavit during the judicial review, Shao told the court that the address he gave was 25 Boyne Meadow and that he “did not knowingly give the garda an incorrect address”.
Two months after Shao’s arrest, Byrne wrote to Detective Sergeant Stratford of the GNIB’s Evader Tracking Unit with a copy of Shao’s registration details.
These details include a person’s name, nationality and their postal address.
However, the judge later noted that there was “no specific evidence” that the location in Drogheda recorded by gardaí existed, particularly in light of the State’s failure to deliver post there.
According to the November ruling, he was contacted at 25 Broadmeadows on three occasions over a nine-year period.
On 27 November 2009, a notification under Section 3(4) of the Immigration Act 1999 was sent there by the GNIB, but later returned with the envelope marked “insufficient address”.
The issue arose again in August 2012, when the Department of Justice and Equality reviewed Shao’s file and issued a deportation order against him on 20 February 2013.
The court heard that this order was sent to the same location, but was likewise returned with the envelope marked “insufficient address”.
Shao did not come to the attention of the State for another six years, until he married another Chinese national who was legally resident in Ireland in March 2018.
He applied to the department for permission to remain in the State on foot of that marriage, but was sent another notice – also addressed to 25 Broadmeadows – in November 2018, telling him to present to the GNIB in February 2019.
Treated as an evader
The same month, Shao was contacted at an address in Brunswick Court in Dublin, and informed that there was a deportation order against him. In the same correspondence, he was also told that he was being treated as an evader.
Shao’s solicitor Eoin McGuigan subsequently made a request for documents relevant to his case under the Freedom of Information Act. In his ruling, the judge noted that a number of documents were released on 2 January 2019, although others were refused.
A judicial review began the following month, when McGuigan received documents showing Shao’s address as being in the IFSC. This suggested that his address had not been updated since his arrival in the State in 2002.
The judge later noted that Shao did not initially appear to appreciate the significance of this. On 11 February, Mr Justice Humphreys granted a stay on the deportation order to allow the judicial review to be heard.
An initial ruling was made last November, when the judge dismissed Shao’s challenge to the proposal under Section 3 of the Immigration Act and the deportation order.
In that ruling, he found that “merely sending a document to the wrong address does not make it invalid”, noting that Shao was at all times unlawfully present in the State after his visa had expired.
The judge also said that no injustice had been done to Shao because he was served with notices at the address that he had provided to the GNIB, and found it would be inappropriate to grant him relief in those circumstances.
Details not submitted
However, in his initial ruling, Mr Justice Humphreys made a postscriptual clarification about an issue which he believed could be relevant to deciding how to award costs in the case.
He said that Detective Garda Byrne had not given the address supplied to him by Shao upon his arrest to Detective Sergeant Stratford of the GNIB in November 2009.
The judge said that, although this may not have been enough for Shao to win the case, it cast a different light on the State’s failure to release his registration details under FOI or to provide them to the court.
He noted that these details also accompanied the minute between Byrne and Stratford in November 2009 to apply for a notification under Section 3 of the Immigration Act 1999, which was sent to “25 Broadmeadows”.
“The minute was exhibited by the State but the attached registration details were not,” he said.
The judge noted that there was an obligation for State bodies to “put their cards on the table” during the course of a judicial review, but gave the State an opportunity to explain this before finalising costs in the case.
Supplementary affidavits submitted
After that ruling, the court received four supplemental affidavits relating to Shao’s registration details and his supposed addresses.
They included an affidavit from Shao’s solicitor Eoin McGuigan, which showed that it was likely that the address “25 Broadmeadow” had not been registered with the GNIB.
Another from Detective Garda Byrne explained that he was unable to update the GNIB’s registration system with Shao’s new address in 2009, because the system “locks down” three months after the last permission by an applicant to be in the State expires.
Two affidavits were also received from Alan King of the Irish Naturalisation and Immigration Service (INIS).
One of these disclosed what was described in the judgement as a minute regarding Shao’s address – registered at the IFSC – was not separately identified in a schedule of records as part of McGuigan’s Freedom of Information request.
Instead, King said that the minute formed part of a set of documents that were described as a single document labelled “report from GNIB 10/11/2018”. The judge noted that neither Shao nor the High Court could have known this information without being told.
Arising from these affidavits, the judge agreed to an application by counsel for Shao to re-open his initial judgement.
He agreed that the new evidence contained in the affidavits could reasonably change the court’s mind prior to the perfection of his order.
He further found that the withholding of “materially relevant information” had the effect that the court was misled – even if unintentionally.
‘Withholding of information’
In his new judgement, the judge noted that withholding information from the court was “not a good look”.
“That look is not improved where it’s the State that’s doing the withholding, or, indeed, where some of the withholding was done on foot of a conscious decision by State counsel,” he said.
Making his order, he found that there were three occasions when the State withheld information during the course of the judicial review.
In a response to the FOI request made by Shao’s solicitor in November 2018, it was found that the 2009 minute by Detective Garda Byrne was not disclosed, and that it contained important information about Shao’s registration details.
The judge said that the actual response “obscured” the importance of this information by referring only to a “report from GNIB 10/11/2018″, which also contained other documents.
He ruled that because the FOI response was relied upon for forensic purposes during the course of the judicial review, and that the omitted details were not filled in by the State during proceedings, this could be described as “withholding of information”.
The judge also found that Shao’s registration details could have been submitted in further affidavits submitted by the GNIB and the Department of Justice in September and October 2019.
He said that if these details had been disclosed, it would have been clear that the address where Shao was served was different to the one where he was registered with the GNIB.
This was also described this as “withholding of information”.
Meanwhile, it was also found that none of these documents disclosed that Detective Garda Byrne was unable to amend the GNIB registration system when Shao’s new address was given to him. This too was described as “withholding of information”.
No intention to mislead
However, the judge accepted that there was no intention to mislead the court, and that Detective Garda Byrne and officials from the Department of Justice official and the INIS were “totally blameless” because they acted on the advice of counsel for the State.
He also defended counsel for the State, Anthony Moore BL, saying that there was a lack of clarity around what the State’s disclosure obligations were.
He said this was particularly the case, because emphasis on disclosure has more recently been on the side of the applicant in judicial review proceedings, in this case Shao.
The judge further found that the GNIB’s inability to update the details of individuals was not a “tactical consideration”, and was something that only came to the court’s attention after his initial ruling last November.
However, he said that although it wasn’t the State’s intention to mislead the court, “unfortunately the court was misled”.
The judge concluded that he would re-open his original judgement in light of the new affidavits, and reversed his decision, quashing the previous order for Shao’s deportation.
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