A.B. (A Minor Suing Through her Father and Next Friend C.D.) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 30 June 2021
• Neutral Citation: [2021] IEHC 439
• Docket Number: [2020 No. 255 JR]
• Court: High Court

Between

A.B. (A Minor Suing Through her Father and Next Friend C.D.)

Applicant

and

The Minister for Justice and Equality

Respondent

[2021] IEHC 439

[2020 No. 255 JR]

THE HIGH COURT

Travel visa – Reasonableness – Proportionality – Applicant seeking a short-stay ‘C’ visa – Whether the respondent’s decision to refuse the travel visa sought was unreasonable and disproportionate

Facts: The applicant, a third-country 16 year old, wanted to come to Ireland to see her mother, father, brother and sister. She first applied for a short-stay ‘C’ visa when she was 14 years old. On 9th December 2019, following an appeal against an initial refusal, the respondent, the Minister for Justice and Equality, again refused the travel visa sought. That refusal was the subject of these proceedings. The following questions arose to be answered in these proceedings: (1) Is the Minister’s decision of 9th December 2019 unreasonable in circumstances where (i) the decision is effectively based on a finding that the 16 year old applicant and her parents are being untruthful when they say that their intention is that she will return to the third country and (ii) no reasons have been given for rejecting the credibility of the statements made? (2) If the court were to find that reasons were in fact given for the adverse credibility finding made against the applicant and her parents, are such reasons invalid on the basis that they are not intelligible, specific, cogent and substantial? (3) Is the respondent’s decision of 9th December 2019 unreasonable, irrational, contrary to the Minister’s own policy and in breach of the principle of audi alterem partem, in circumstances where the Minister has found that the documentation and information provided for the purposes of evidencing the applicant’s obligations to return to her home country is insufficient, notwithstanding the fact that the applicant has provided all the documentary evidence required for this purpose by the respondent’s published policy? (4) Is the respondent’s decision of the 9th December 2019 invalid by reason of being based on a material error of fact, in circumstances where the Minister has incorrectly stated in the decision that the invitation letter from the applicant’s parents is unsigned? (5) Is the Minister’s decision of 9th December 2019 unreasonable and disproportionate in light of the personal circumstances of the applicant and her family members, as detailed in the application?

Held by the High Court (Barrett J) that: (1) (i) it did not see that anyone was being called a liar and (ii) there seemed to be three reasons for rejecting the application, first, that the child made a previous application to join her parents, second, the allegedly deficient letters, and third, the Minister seemed to look adversely on the fact that the family was poor; (2) it did not see what had occurred as a rejection of credibility, it did not see how logically a past history of complying with the law could be relied upon to support the proposition that one may not do so in the future, the reasoning in respect of the allegedly deficient letters was inadequate and as there was no sign of the family becoming rich, the effect of that proposition was that the daughter would never be allowed to visit for so long as they were poor; (3) the problem presenting was the fact of the manifold deficiencies in the impugned decision; (4) the treatment of the parents’ letter was undoubtedly problematic; and (5) in light of the various deficiencies that it had indicated to present in the impugned decision, it considered that the impugned decision was unreasonable and disproportionate.

Barrett J held that the court would quash the impugned decision and remit the matter to the Minister for fresh consideration. The court proposed making an order for costs in favour of the applicant.

Application granted.

Summary

This application concerns a decision of the Minister on appeal to refuse a short-stay ‘C’ visa to a third-country teenager who is hoping to come to Ireland. The impugned decision presents with various deficiencies that have resulted in its being quashed by this Court and the matter returned to the Minister for fresh consideration. This summary is part of the court's judgment.

JUDGMENT of Mr Justice Max Barrett delivered on 30 ^th June 2021 .

1 . This application concerns a 16 year old third-country girl who wants to come to Ireland to see her mum, dad, brother and sister. She first made the application for a short-stay ‘C’ visa when she was 14 years old. She is now 16 years old. There is a handwritten letter on file, written by the girl when she had just turned 14, and which pretty much condenses what is at stake. It reads as follows (there are errors in the English but I wish my knowledge of the girl's native language was as good as the English of the young girl who wrote the below letter):

“Hello to Irish Government

I am [Name]. I live in [Stated Place]. My parents…and my sister and brother live in Ireland too. They have repeatedly tried reunification the family but all attempts were unsuccessful. The reason are clear at this stage, me and my family don't have the right to do so. We obey the laws of Ireland. As a member of their family, please give me the opportunity to visit the country several times a year and spend some time with my family. Believe me this is very important for me.

I have the right to go from my school a year to a few times in the holiday and I can return to normal. I have a holiday in summer and Christmas and some time a year.

I am so sorry to the government of Ireland that once again please support me and I hope that you will understand and take into consideration this issue and will be positive.

If I have [made] some mistakes…[in my] letter, sorry about that, I'm learning English now.

Respectfully:

[Signature]”

2 . On 9th December 2019, following an appeal against an initial refusal, the Department again refused the travel visa sought. That refusal is the subject of these proceedings. The key facts are best detailed by way of brief summary chronology:

4.4.19. Applicant's parents apply for a visit C visa on behalf of the Applicant.

20.5.19. Application refused.

17.7.19 Appeal submitted on behalf of Applicant.

7.10.19. Solicitor sends letter enclosing further documents in support of appeal.

9.12.19. Appeal refused. This refusal is the subject of the within application.

3 . The appeal decision is short. However, there is nothing wrong in that. Brevity is the sometimes unappreciated soul of wit. Of course, whether pithy or prolix in her decisions, when the Minister is brought to court in judicial review proceedings she is ‘stuck’ with whatever decision she has made. She cannot seek, as she has sought in these proceedings, to expand an impugned decision. An impugned decision, to use a colloquialism, must stand or fall ‘on its own two feet’ in any ensuing judicial review proceedings.

4 . The impugned decision is sufficiently short that the pertinent parts can be quoted in full:

“ The reasons for the refusal of your appeal are as follows:

You have previously applied to Join Parent Visa Application 24/06/2016. This application was refused…..It was subsequently appealed….This appeal was refused….

In the refusal letter, it is stated in relation to your parents…[that they] arrived in the State in 2008 and 2011 respectively. Their asylum requests were subsequently turned down. They were subsequently granted temporary permission to remain in the State as an exceptional measure.

One of the conditions of their temporary permission is:

‘That you accept that the granting of your temporary permission to remain does not confer any entitlement or legitimate [expectation] on any other person, whether related to you or not, to enter or remain in the State.’

This has led to my concerns on your visit family visa application, where obligations to return [to] your home country have not been deemed sufficient, Information supplied by you, including letters from your parents (this letter has not been signed), grandmother and…[Stated Place] Public School #[Stated Number] concerning your personal, economic and family circumstances has been insufficient that you would observe the conditions of any visa granted, with particular regard to the use of public funds and public resources and the possible risk of overstaying in the State.

The visa sought is for a specific purpose and duration. I am not satisfied that such condition would be observed. Information supplied by you concerning your personal, economic and family circumstances are insufficient in order that the conditions of the visa would be fully observed if granted.

I am not satisfied that you have demonstrated sufficient evidence of strong obligation to return to your home country, where the granting of the visit may result in a cost to public funds and public resources. I must consider the potential risk of costs arising to the State if the conditions of the visa were not to be observed”.

5 . A number of points might be made about the decision letter before proceeding further.

6 . First, while the Minister is perfectly entitled to refer to the previous history of the ‘join parent’ application, that history will always be there. As counsel for the child submitted at the hearing, it cannot be that because one makes a previous ‘join parent’ application (and complies fully with the law in so doing) that that will forever be held against one thereafter (in truth it is not clear why it would be held against one that one had done something lawful and complied with the law). Otherwise the situation (doubtless frightening for ‘join parent’ applicants) would arise that a failed ‘join parent’ application could greatly impede ever seeing one's child in Ireland. Moreover, as just touched upon, to rely upon a person's past history of complying with the law to support the...