Dooley v Patterson Bannon Architects Ltd ; Ocean Point Development Company Ltd [(in Receivership)] v Patterson Bannon Architects Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 20 December 2021
• Neutral Citation: [2022] IEHC 504
• Docket Number: Record No: 2022/125 JR
• Court: High Court

In the Matter of the Policy Document on Non-Eea Family Reunification

Between

LTE and Kau

Applicants

and

The Minister for Justice

Respondents

[2022] IEHC 504

Record No: 2022/125 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Visa application – Irrationality – Applicants challenging the visa appeal refusal decision of the respondent – Whether the respondent’s decision was irrational and/or unreasonable and/or disproportionate

Facts: The first applicant, a naturalised Irish citizen, originally from Ethiopia, married the second applicant, an Ethiopian national, in a ‘proxy’ marriage over video call on 2 March 2019. The first applicant subsequently visited Ethiopia (departing Dublin on 5 April 2019 and returning on 29 April 2019). The couple’s marriage certificate recorded the date of their marriage as 2 March and the certificate was issued by the Ethiopian authorities on 13 April 2019. The second applicant made an application for a ‘join spouse’ visa on 15 March 2021. The applicants challenged the visa appeal refusal decision of the respondent, the Minister for Justice, of 17 November 2021. The applicants claimed that: the respondent’s decision was irrational and/or unreasonable and/or disproportionate; the respondent failed to have regard to relevant matters; the respondent applied ‘blanket rules’ inflexibly and/or fettered her discretion; the decision was unlawful having regard to Article 41 of the Constitution (with particular reference made to the Supreme Court’s decision in Gorry & Anor. v Minister for Justice and Equality [2020] IESC 55); and the decision was unlawful in light of Article 8 of the European Convention on Human Rights.

Held by the High Court (Heslin J) that there is a presumption that material has in fact been considered if the decision says so, citing Hardiman J in G.K. v MJELR [2002] 2 IR 418; the decision under challenge said so in the clearest of terms. Heslin J held that the reasons underpinning the visa appeals refusal was squarely and soundly based on the evidence; it had never been suggested that the reasons were unclear. He held that the decision itself – which must be read as a whole, rather than subjected to analysis on a word by word basis – was not reached unlawfully. He held that the applicants had not established that the “Policy Document on Non-EEA Family Reunification” issued by the respondent (the Policy) was operated in a rigid or fixed manner; the evidence demonstrated the contrary. He held that at all material times, the visa was applied for, not on the basis that the financial qualifications in the Policy had been met, or would be met, but on the basis that, despite the fact that they were not met, the circumstances were such that the Minister should exercise her discretion in favour of granting a visa; the Minister decided otherwise. He held that the process by which she came to that view was lawful; the respondent clearly took account of, inter alia, the status of the applicants as a married couple as well as the impact on them of the decision. Leaving aside the fact that the applicants did not appear to have challenged the Minister’s finding that this was not a situation where special circumstances rendered it appropriate for her to exercise discretion in favour of granting a visa, he held that the reason for the Minister’s decision stemmed, fundamentally, from the lack of evidence supplied by the applicants.

Heslin J held that the applicants’ claim must be dismissed. His preliminary view on the question of costs was that there were no factors or circumstances which would justify a departure from the “normal” rule that “costs” should follow the event.

Claim dismissed.

JUDGMENT of Mr. Justice Mark Heslin delivered electronically on the 18 ^th day of November 2022

Introduction

1 . The first named applicant is a naturalised Irish citizen, originally from Ethiopia, who married the 2 ^nd named applicant, an Ethiopian national, in a ‘proxy’ marriage over video call on 02 March 2019. The first applicant subsequently visited Ethiopia (departing Dublin 05 April 2019 and returning on 29 April 2019). The couple's marriage certificate records the date of their marriage as 02 March and the certificate was issued by the Ethiopian authorities on 13 April 2019. The second applicant made an application for a ‘join spouse’ Visa on 15 March 2021. This case concerns a challenge to the Respondent Minister's visa appeal refusal decision of 17 November 2021 (the “decision”).

The Policy

2 . The Applicants acknowledge that the Respondent issued a “ Policy Document on Non-EEA Family Reunification” (“the Policy”) and a copy of the Policy (dated December 2016) was before this court. The “Executive Summary” to the Policy begins in the following terms: “ The purpose of this document is to set out a comprehensive statement of Irish National immigration Policy in the area of family reunification. It is recognised that more comprehensive and transparent guidelines are necessary to assist Applicants and decision makers in this area. The policies outlined in this document will apply to all decision making in the immigration system in relation to family reunification cases in a harmonised way, incorporating both these applications and the various leave to remain processes… The guidelines do not create or acknowledge any new rights of family reunification. Ministerial discretion applies to most of the decision making in the area of family reunification and this will continue to be the case. It is more a question of providing greater detail on how that discretion is intended to be applied. The guidelines apply only in the area where ministerial discretion is retained….”. The Applicants do not challenge the Policy or its terms. The Policy provides inter alia the following:

“ Where Sponsor is Irish Citizen

17.2 An Irish citizen, in order to sponsor an immediate family member, must not have been totally or predominantly reliant on benefits from the Irish State for a continuous period in excess of 2 years immediately prior to the application and must over the three year period prior to application have earned a cumulative gross income over and above any State benefits of not less than €40k”. (Emphasis in original.)

The first applicant did not, and does not, meet the criteria identified in para. 17.2.

Rare cases with exceptional circumstances

3 . Paragraph 1.12 of the Policy relates to Ministerial discretion and states the following:-

“ 1.12 While this document sets down guidelines for the processing of cases, it is intended that decision makers will retain the discretion to grant family reunification in cases that on the face of it do not appear to meet the requirements of the Policy. This is to allow the system to deal with those rare cases that present an exceptional set of circumstances, normally humanitarian, that would suggest that the appropriate and proportionate decision should be positive”.

Leave

4 . By order made on 28 February 2022 (Meenan J), this Court granted the Applicants leave to apply by way of an application for judicial review for the reliefs set forth at paragraph [D] on the grounds set forth at paragraph [E] in the Applicants' statement of grounds. Such leave was granted “ Without prejudice to the determination at the substantive stage of any point which could have been contended for by the Respondent at the leave stage including any point in relation to time limits for the bringing of this application”. No issue concerning ‘time’ arises.

Relief sought

5 . Paragraph [D] of the statement of grounds identifies the relief sought, as follows:

• 1. An order of certiorari by way of application for judicial review quashing the decision of the Respondent dated 17 November 2021 refusing the 2 ^nd named applicant's appeal;

• 2. such declarations of the legal rights and/or legal position of the applicant and/or persons similarly situated as this Honourable Court shall consider appropriate;

• 3. if necessary, an order extending the time for the purposes of the institution and the conduct of these proceedings;

• 4. such further or other order as this Honourable Court shall deem appropriate; and

• 5. an order for costs.

The Applicants' claim

6 . In summary, the Applicants make the following legal claims with respect to the decision:

• — the Respondent's decision is irrational and/or unreasonable and/or disproportionate;

• — the Respondent failed to have regard to relevant matters; the Respondent applied ‘blanket rules’ inflexibly and/or fettered her discretion;

• — the decision is unlawful having regard to Article 41 of the constitution (with particular reference made to the Supreme Court's decision in Gorry & Anor. V. Minister for Justice and Equality [2020] IESC 55); and

• — the decision is unlawful in light of Article 8 of the European Convention on Human Rights Act 2003 (“ECHR”).

Background

7 . Although I referred to certain facts in the introduction, it is appropriate to set matters out in more detail as follows. The first applicant was born in Ethiopia. Her passport issued by the Federal Democratic Republic of Ethiopia identifies her date of birth as 10 March 1993. She came to this state on 16 January 2014. Up to and including 11 November 2021, she held a “Stamp 4” permission to reside in this state. On 13 September 2021, she received a certificate of naturalisation and became an Irish citizen.

The 2 ^nd applicant is an Ethiopian national. His passport issued by the Federal Democratic Republic of Ethiopia identifies his date of birth as 11 September 1985.

Childhood friends

8 . The first applicant elsewhere describes the second application as her “ childhood friend” and asserts “ we used to play together from childhood until we grow up, generally we're best friend” (see the first applicant's “ Relationship history statement” under the heading “ Our First meeting”, which statement comprised item 19 of the...