F.A.F. (Nigeria) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 12 April 2019
• Neutral Citation: [2019] IEHC 263
• Docket Number: [2018 No. 950 J.R.]
• Court: High Court
• Date: 12 April 2019

[2019] IEHC 263

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 950 J.R.]

BETWEEN

F.A.F. (NIGERIA)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

Deportation – Judicial review – Proportionality – Applicant seeking an order of certiorari quashing the decision to affirm a deportation order – Whether the decision was disproportionate

Facts: The applicant, on 14th November, 2018, applied to the High Court seeking an order of certiorari quashing the decision to affirm a deportation order, which was said to have been notified to the applicant on or about 15th October, 2018, on the following grounds: 1) the alleged disproportionality; 2) the alleged disproportionate interference with private and family life; and 3) the alleged failure to properly consider interference with family life.

Held by Humphreys J that: 1) the decision was not disproportionate; 2) no disproportionate interference with the rights of either the applicant or others had been demonstrated; 3) any questions of Nigerian cultural norms were not made to the first respondent, the Minister for Justice and Equality, in submissions so could not be a ground for judicial review.

Humphreys J held that the proceedings would be dismissed.

Proceedings dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 12th day of April, 2019

1 The applicant was born in 1955 in Nigeria and is now 63. She has four children. One child lives in Ireland and is now an Irish citizen, as are that child's husband and children. In her original asylum application, the applicant claimed that the whereabouts of her other three children was unknown, though by the stage of the tribunal hearing she said they were living with her mother and sister in Nigeria (see s. 3 of the tribunal decision), which suggests that she may not have been altogether forthcoming at all times about her knowledge of where they are. She currently lives with her Irish citizen daughter and the latter's family in the State.

2 On 4th December, 2008, the applicant arrived in the State and applied for asylum, which was rejected by the Refugee Applications Commissioner on 22nd December, 2008. That decision was appealed to the Refugee Appeals Tribunal, which rejected the appeal on 3rd April, 2009, raising not only an internal relocation issue but also some questions over the applicant's credibility.

3 On 29th May, 2009, the Minister for Justice and Equality proposed making a deportation order against the applicant. On 19th June, 2009, in response to that proposal, the applicant sought subsidiary protection and leave to remain.

4 On 20th July, 2009, the subsidiary protection application was refused and a deportation order was made on 21st July, 2009. The applicant was required to present for deportation on 10th August, 2009. None of the adverse decisions were challenged at that point, or at any point, and the applicant failed to present as required. Accordingly she was classed as an evader.

5 The next legally significant thing that happened in this case was that the applicant's solicitors applied for revocation of the deportation order under s. 3(11) of the Immigration Act 1999 on 25th October, 2016. The application, which Ms. Grace Mulherin B.L. for the respondents describes as ‘ legalistic’ and which bears only limited resemblance to the submissions made to me, breaks down into three headings:

(i). An allegation of a flawed original assessment process that sought to revisit previous unchallenged decisions. Seeking leave to remain on this basis does not amount to a correct procedure. The Minister at the s. 3(11) stage is not undertaking a parallel judicial review-type examination of previous unchallenged decisions.

(ii). Family life was relied on, but on a much more legalistic basis than that actually pleaded or argued. The submission sought to make an analogy with EU treaty rights.

(iii). Reliance was placed on the applicant's length of residence in the State and reference was made obliquely to the McMahon report and consequent permissions given to certain applicants who had been resident for a five-year period. The McMahon report of course does not apply to this applicant due to her evasion and, while pleaded, that ground was not pursued.

6 A further submission was made on 13th February, 2017 in connection with the McMahon report point and on 17th February, 2017 evidence was provided of the applicant's son-in-law being in paid employment, again to advance the EUTR analogy point. Ms. Mulherin's comment is a fair one when she says at para. C4 of the written legal submissions that the applicant's submissions to the Minister can be said to have only given ‘ the barest of details regarding her family in Ireland’.

7 Also submitted to the Minister was a letter dated 23rd July, 2018 from the applicant personally pleading for mercy on an ad misericordiam basis. The applicant's file was examined on 24th September, 2018 and a proposal made to refuse the application under s. 3(11). The applicant was so notified on 12th October, 2018.

8 The present proceedings were filed on 14th November, 2018, possibly very slightly out of time, the primary relief being an order of certiorari quashing the decision to affirm the deportation order, which was said to have been notified to the applicant on or about 15th October, 2018. I granted leave on 19th November, 2018. The applicant was evading at that point. I am informed by Mr. Garry O'Halloran B.L., who appears for her, that she attended at the GNIB on 10th December, 2018 but was not seen for some hours due to a queue and left without being seen, and she then presented again in January, 2019. The respondent's statement of opposition was filed on 14th February, 2019. I have now received helpful written and oral submissions from Mr. O'Halloran and Ms. Mulherin, and I am grateful to them both.

Section 3(11) context

9 The context of revisiting previous decisions which have either been unchallenged or unsuccessfully challenged necessarily involves a more restrictive procedure and a more restricted scope for judicial review. It is not open to an applicant to succeed in a challenge to a reiterated decision on grounds that applied to an unchallenged or unsuccessfully challenged original decision. Ms. Mulherin's thoroughly researched written legal submission sets out the extensive body of caselaw that affirms this principle, most notably the Supreme Court decision in P.O. v. Minister for Justice and Equality [2015] IESC 64 [2015] 3 I.R. 164 per MacMenamin J. and Charleton J. and the Court of Appeal decisions in R.B. v. Minister for Justice and Equality [2017] IECA 26 (Unreported, Court of Appeal, 10th February, 2017) per Peart J. and C.I. v. Minister for Justice and Equality [2015] IECA 192 [2015] 3 I.R. 385 per Finlay Geoghegan J. In addition to those headline decisions there are a number of other decisions of the High Court to the same effect: see K.R.A. v. Minister for Justice and Equality [2016] IEHC 289 [2016] 5 JIC 1214 (Unreported, High Court, 12th May, 2016), O.O.A. v. Minister for Justice and Equality [2016] IEHC 468 [2016] 7 JIC 2924 (Unreported, High Court, 20th July, 2016), Mun v. Minister for Justice and Equality [2018] IEHC 369 [2018] 5 JIC 1011 (Unreported, High Court, 10th May, 2018), H.A. (Chad) v. Minister for Justice and Equality [2019] IEHC 57 [2019] 1 JIC 2909 (Unreported, High Court, 29th January, 2019), J.A. (Pakistan) v. Minister for Justice and Equality [2018] IEHC 343 [2018] 5 JIC 0102 (Unreported, High Court, 1st May, 2018), O.A.B. (Nigeria) v. Minister for Justice and Equality [2018] IEHC 142 (Unreported, High Court, 27th February, 2018), C.O. (Nigeria) v. Minister for Justice and Equality [2017] IEHC 725 [2017] 11 JIC 2406 (Unreported, High Court, 24th November, 2017), J.M.N. v. Refugee Appeals Tribunal [2017] IEHC 115 [2017] 2 JIC 2710 (Unreported, High Court, 27th February, 2017), C.M. v. Minister for Justice and Equality [2018] IEHC 217 [2018] 4 JIC 2501 (Unreported, High Court, 25th April, 2018), A.B. (Albania) v. Minister for Justice and Equality [2017] IEHC 814 [2017] 12 JIC 2113 (Unreported, High Court, 21st December, 2017), Onyemaechi v. Minister for Justice and Equality [2017] IEHC 682 [2017] 10 JIC 1705 (Unreported, High Court, 17th October, 2017), B.S.S. v. Minister for Justice and Equality [2017] IEHC 463 (Unreported, O'Regan J., 17th July, 2017), Nagra v. Minister for Justice and Equality [2018] IEHC 398 [2018] 6 JIC 0507 (Unreported, High Court,...