The High Court has allowed cross-examination of a Garda officer and an applicant in a judicial review case, after finding a relevant conflict between their accounts of an exchange concerning the applicant’s immigration permission.
Mr Justice Richard Humphreys said the proposed questioning should be limited to the specific disputed facts. His ruling addresses how that conflict may be examined; it does not decide the challenge to the later revocation of the permission.
The first applicant, Jiku Banik, a national of Bangladesh, was granted permission to remain in Ireland on 8 March 2018. The permission was later revoked. The applicants seek certiorari of the revocation. They had also sought restoration of the 2018 permission, but that part of their case is no longer being pursued.
The affidavits of Mr Banik and Garda Deering, who gave evidence for the respondents, conflict over what information was conveyed in exchanges on the day permission was granted. The respondents pleaded discretion and non-disclosure, making Mr Banik’s conduct and the extent of his disclosure relevant to at least one issue in the proceedings, the judge said.
The respondents opposed cross-examination on several grounds, including the disruption to a busy immigration officer, the contention that the disputed exchange was not central to the case, and the argument that the court could resolve the matter from the affidavits. They also argued that questioning risked taking judicial review beyond the decision-making process. The respondents sought the opportunity to question Mr Banik if Garda Deering were to be questioned.
The judge said administrative inconvenience did not outweigh the requirements of justice where questioning was needed to resolve a relevant factual dispute. He rejected the idea that a separate, exceptional-circumstances test applied to cross-examination in judicial review. In his view, such questioning is uncommon mainly because relevant factual conflicts are uncommon in these cases.
Allowing the application, the judge directed that both Garda Deering and Mr Banik could be cross-examined, confined to the identified conflict about their exchanges on 8 March 2018. The judgment did not determine the applicants’ substantive challenge to the revocation.