Ali v Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 25 March 2011
• Neutral Citation: [2011] IEHC 115
• Court: High Court
• Date: 25 March 2011

[2011] IEHC 115

THE HIGH COURT

[No. 988 J.R./2010]

Ali v Minister For Justice

MR JUSTICE COOKE

APPROVED TEXT

BETWEEN

HASSAN SHEEKH ALI

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S18(4)

REFUGEE ACT 1996 S18(2)

REFUGEE APPLICATIONS COMMISSIONER REPORT S5.4 31.07.2009

REFUGEE ACT 1996 S18(1)3

REFUGEE ACT 1996 S18(1)4

REFUGEE ACT 1996 S18(1)3A

REFUGEE ACT 1996 S18(4)B

REFUGEE ACT 1996 S2

IMMIGRATION

Family reunification

Refugee - Dependents - Scope of relationships - Five children - Applicant's adult sister caring for three children of applicant's deceased brother - Meaning of dependent - Application granted to applicant's children - Application for adult sister and three children of deceased brother refused - Whether applicant had to show financially capable of supporting all people in application - Whether respondent erred in law - All part of applicant's household in country of origin - Applicant serious medical condition - Humanitarian consideration - Dependents capable supporting household in State - Whether sister and three children within statutory definition of dependent family member - Respondent's discretion under s 18(4) arising only if definition satisfied - Uncertainty as to basis for refusal - Refugee Act 1996 (No 17) as amended, s 18(4) - Certiorari granted (2010/988JR - Cooke J - 25/3/2011) [2011] IEHC 115

Ali v Minister for Justice

Facts The applicant instituted judicial review proceedings seeking to challenge the respondent's decision refusing his application for family reunification in respect of his adult sister and three children of his deceased brother living as undocumented refugees in Ethiopia. It was contended that the respondent erred in law in finding that an applicant must be financially capable of supporting his adult sister and three children of his deceased brother who are in her care in order to benefit from the refugee family reunification provisions of s. 18(4) of the Refugee Act 1996. Family reunification had been granted in respect of the applicant's five children. It was claimed that the family members in question were wholly reliant on the applicant to pay for food and shelter and were as such financially dependent upon the applicant. It was submitted that the respondent had applied a wrong test when finding that the sister and the three children were not "dependent family members" in relation to the applicant. Evidence had been given of the applicant having money transfers to his relatives.

Held by Cooke J in quashing the decision of the respondent. The issue before the Minister was whether the sister, nephews and niece came within this definition of "dependent member of the family". Given that the applicant was sustained only by disability benefit in this country, it did not appear to be a rational conclusion that the frequency and amount of money transferred failed to prove that the recipients of the transfers were financially dependent upon the refugee. There was no doubt that if the finding as to the applicant's financial inability to support his sister and the three children in the State, formed part of the conclusion that they were not "dependent members of the family" because they were not "dependent" financially upon him, there was an error of law. The Court was, on balance, satisfied that as there had been sufficient degree of uncertainty raised, the respondent's decision would be quashed and the matter remitted to the Minister for reconsideration. In granting the relief sought, the Court was not holding that the Minister was precluded from taking account of a refugee's inability to support dependents in the State as a factor in the exercise of the discretion.

Reporter: R.F.

1 1. By order of the Court (Clark J.) of the 29 ^th July, 2010, the applicant was granted leave to bring the present application for judicial review of the respondent's decision (the "Contested Decision",) of 18 ^th June 2010 under s. 18(4) of the Refugee Act 1996 (as amended) refusing his application for family reunification in respect of his adult sister and three children of his deceased brother then living as undocumented refugees in Ethiopia.

2 2. Leave was granted upon a single ground as follows:-

"The respondent erred in law in finding that an applicant must be financially capable of supporting his adult sister and three children of his deceased brother who are in her care in order to benefit from refugee family reunification with dependents pursuant to the provisions of s. 18(4) of the Refugee Act 1996."

3 3. The background to the application can be briefly described as follows. The applicant is a native of Somalia who came to the State in July 2007, claimed asylum and was subsequently granted refugee declaration on the 30 ^th April, 2008. In Somalia the applicant had been a married man with seven children. He says that his wife and two of those children and his mother were killed in Somalia. At the time his household also comprised his adult sister and three children of his deceased brother. When he fled from Somalia in 2007, he left both his own children and his two nephews and niece in the care of his sister. In or about March or April 2009, the sister sought refuge with the three children in Ethiopia where they have remained since.

4 4. In April 2009, the applicant applied to the respondent under s. 18 of the Act of the 1996, to have all of those members of his household, that is to say his own five children, his sister and the two nephews and niece, given permission to be reunited with him in this State as family members of a refugee. As a result of subsequent exchanges between the applicant's representatives and the respondent and/or the Office of the Refugee Applications Commissioner, the application was dealt with separately with regard to the applicant's five children on the one hand and the sister and remaining three children on the other. In short, by the date on which the Contested Decision in respect of the latter was adopted on 18 ^th June, 2010, the five children had been granted permission to enter the State with a view to their relationship to the applicant being verified by DNA tests. Family reunification under s. 18 was later granted to them so that the present proceeding is concerned only with the position of the applicant's sister and the two nephews and niece.

5 5. The applicant's personal situation is complicated by the fact that he is seriously ill and severely disabled. He suffers from a combination of chronic hepatitis, aortic aneurysm, cardiomyopathy and heart disease. He has sustained kidney failure and must undertake dialysis three times per week. He would be in need of a kidney transplant but his medical advice is that he is not a candidate for such an operation because of his other problems such that his condition is considered irreversible. The case could be considered unusual, therefore, in that while the applicant is seeking to have the Minister admit his sister and the three children on the basis that they are dependent on him, one of the humanitarian considerations urged upon the Minister is that because of his medical condition and his inability to work and properly look after his own children here, he too would be dependent upon them and particularly upon his sister and the older nephew in caring for and supporting his household in this country.

6 6. When the application for family reunification was made and in subsequent further submissions and exchanges of correspondence with the Family Reunification Section of the Department, it was on the basis that the applicant had been supporting all of those members of his household in Somalia and subsequently in Ethiopia and that they were dependent upon him. Although subsisting in this country on disability benefit, the applicant supported this proposition by submitting evidence of money transfer made to the family. These consisted of irregular and varying amounts of between US$100 to US$400 (and on one occasion a remittance of US$1,000) during the period from approximately March 2008 until early 2010. It was claimed that the family members in question were "wholly reliant on this money to pay for...