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Z. M. v The Minister for Justice, Home Affairs and Migration (Approved)
Factual and Procedural Background
The Applicant, a national of Pakistan, entered the State in August 2018 on a student visa. After that permission expired, he received a notice proposing deportation in September 2021, and he was later served with a deportation order under s. 3 of the Immigration Act 1999 in June 2023. [Para 18][Para 20]
An ex parte order in July 2023 directed that the Applicant’s judicial review challenge to both the 2021 notification and the 2023 deportation order be brought on notice to the Respondent. The challenge to the notice was said to rest on the contention that the statutory scheme did not permit a deportation order to be made after a person had left the State following a s. 3 notice. [Para 21][Para 22][Para 24]
The present motion was the Respondent’s application for leave under Order 41 Rule 1 of the Rules of the Superior Courts to cross-examine the Applicant on the affidavits. [Para 14][Para 16]
Legal Issues Presented
- Whether leave should be granted to cross-examine the Applicant in this judicial review. [Para 14][Para 44][Para 47]
- Whether the Applicant’s alleged confusion about the s. 3 notification, his claimed intention to leave voluntarily, and his alleged legal advice were factual matters central to standing and any extension of time. [Para 56][Para 63][Para 67][Para 77]
Arguments of the Parties
Applicant's Arguments
- The Applicant said the s. 3 notification was “very confusing” and that he did not understand how the options would operate. [Para 30][Para 32]
- He maintained that, had the notice been clear, he would have opted to leave the State voluntarily rather than face deportation. [Para 32][Para 87]
- He said he sought legal advice at the time and believed he could not challenge the notification because of then-current High Court jurisprudence. [Para 30][Para 66][Para 77]
- He argued that his case was distinguishable from JFM and that the issues engaged were central to the proceedings. [Para 72][Para 73]
Respondent's Arguments
- The Respondent argued that the challenge was out of time and that no good and sufficient reason for an extension had been shown. [Para 27][Para 38][Para 54]
- It contended that the proceedings were prompted by developments in KA and amounted to an attempt to “piggyback” on a third party’s successful challenge. [Para 27][Para 31][Para 56][Para 78]
- It disputed the Applicant’s claim of confusion and said the contemporaneous documents showed that he responded to the notice without raising any issue about its form. [Para 26][Para 39][Para 40][Para 78]
- It submitted that even if the Applicant had obtained the legal advice he alleged, he was still out of time and cross-examination was unnecessary. [Para 70][Para 71]
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Irish Bank Resolution Corporation Ltd v. Moran [2013] IEHC 295 | The applicant for cross-examination must show a probable conflict on affidavit relevant to the issues and persuade the court that the matter cannot justly be determined without cross-examination. | The court cited it as authority for the burden on the party seeking cross-examination and for the need to link any disputed fact to a material issue in the proceedings. [Para 45] |
| Ras Medical Ltd. v. The Royal College of Surgeons in Ireland [2019] IESC 4 | Cross-examination may be ordered where credibility or reliability of sworn evidence is challenged, or where a material conflict of fact cannot fairly be resolved on affidavit. | The court relied on it as the governing test and as support for the proposition that sworn evidence should not be rejected on credibility grounds without giving the deponent a chance to answer. [Para 47][Para 49][Para 51] |
| KA v. Minister for Justice [2023] IEHC 556 | Informed consent was required for voluntary departure, and untested affidavit evidence of genuine confusion was accepted in that case. | The court used KA as both a comparison and a distinction: it noted the acceptance there of confusion on affidavit, but emphasized that the present case involved much greater delay and different evidential circumstances. [Para 25][Para 57][Para 58][Para 61][Para 62][Para 63][Para 66][Para 82] |
| JFM v. The Minister for Justice, Home Affairs and Migration [2026] IEHC 272 | Cross-examination is less apt where the issue is consequential rather than central to the substantive dispute. | The court distinguished JFM because, unlike that case, the factual dispute here went to standing and the extension-of-time question, and was potentially determinative of substantive relief. [Para 72][Para 73][Para 74][Para 76] |
Court's Reasoning and Analysis
The court began by identifying the real dispute: the Respondent challenged the Applicant’s standing and the extension of time, saying the case was an opportunistic attempt to rely on KA rather than a genuine challenge arising from the Applicant’s own circumstances. [Para 54][Para 55][Para 56]
It held that the Applicant’s alleged confusion, his claim that he would have left voluntarily, and his assertion that he sought legal advice at the time were all potentially relevant to whether he had standing and whether time should be extended. [Para 56][Para 63][Para 67][Para 76][Para 77]
The court accepted that objective materials pointed against the Applicant’s account, including the absence of contemporaneous complaint, the later response to the notice, and the lack of corroboration for his alleged legal consultation. But it considered those matters insufficient, by themselves, to dispose of the credibility issue without testing the evidence. [Para 26][Para 30][Para 39][Para 40][Para 78][Para 79]
Relying on Ras Medical, the court reasoned that where a sworn account may materially affect the outcome, fairness may require cross-examination so the evidence can be tested. It also rejected the attempt to analogize the case to JFM, because this dispute went to the heart of the substantive judicial review. [Para 47][Para 51][Para 72][Para 73][Para 87]
Although the court recognized that the delay issue might ultimately be decided against the Applicant on the documents alone, it concluded that there remained a sufficient risk that untested affidavit evidence might be accepted at hearing unless the Respondent were allowed to challenge it. [Para 68][Para 70][Para 81][Para 82][Para 84]
Holding and Implications
Leave to cross-examine was granted, but only on specific issues. The permitted cross-examination was limited to the Applicant’s claimed confusion about the notification, his assertion that he might have left voluntarily if the notice had been clear, and his claim that he sought legal advice and was told he could not challenge the letter. [Para 89][Para 92]
The court made no finding on whether the Applicant’s account was true and left open all issues for the substantive hearing. The immediate consequence was that the Respondent could test the Applicant’s evidence on matters potentially affecting standing and the extension of time; no broader new precedent was set beyond the application of established principles. [Para 90][Para 91][Para 92]
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