F.M.O. (Nigeria) v The Minister for Justice and Equality No. 2

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 08 July 2019
• Neutral Citation: [2019] IEHC 538
• Docket Number: [2019 No. 50 J.R.]
• Court: High Court
• Date: 08 July 2019

[2019] IEHC 538

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2019 No. 50 J.R.]

BETWEEN

F.M.O. (NIGERIA), M.O.O. AND A.I.O. (A MINOR SUING BY THEIR MOTHER AND NEXT FRIEND F.M.O.)

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

Certiorari – Review application – Deportation order – Applicants seeking leave to appeal – Whether the respondent discharged his obligations to have regard to an applicant’s family life under s. 49(3) of the International Protection Act 2015 by setting out the s. 49(3) criteria

Facts: The High Court (Humphreys J), in F.M.O. (Nigeria) v Minister for Justice and Equality (No. 1) [2019] IEHC 371, refused certiorari of a review decision under s. 49(9) of the International Protection Act 2015, and of consequent deportation orders. The applicants sought leave to appeal. Their proposed first question of exceptional public importance was “Does the Respondent [the Minister for Justice and Equality] discharge his obligations to have regard to an applicant’s family life under s.49(3) of the International Protection Act 2015 by setting out the s. 49(3) criteria?” Their proposed second question was “Did the Respondent confuse the nature of the assessment which he must conduct under s.49(3) of the International Protection Act 2015 with a stricter Art. 8 ECHR test in stating that “…it is not open to [the Applicant] to seek and rely on Article 8 to circumvent the immigration rules...”?”

Held by Humphreys J that the first specific question posed by the applicants was tendentious; it did not arise on the facts because the Minister did not discharge the obligation to consider the s. 49 factors by setting out the criteria. He held that the point was fact-specific and thus unsuitable for leave to appeal. He held that the second question was tendentious in the sense that he found that the Minister did not confuse s. 49 of the 2015 Act and art. 8 of the EHCR. He held that the question was totally fact-specific. He held that since the applicants did not make any submissions under this heading, they could not seriously expect to get leave to appeal on a point that was never made to the decision-maker.

Humphreys J held that the application would be dismissed.

Application dismissed.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 8th day of July, 2019

1 In F.M.O. (Nigeria) v. Minister for Justice and Equality (No. 1) [2019] IEHC 371 (Unreported, High Court, 28th May, 2019), I refused certiorari of a review decision under s. 49(9) of the International Protection Act 2015, and of consequent deportation orders. The applicants now seek leave to appeal, and I have received helpful submissions from Mr. Eamonn Dornan B.L. for the applicants and from Ms. Sarah K.M. Cooney B.L., for the respondent.

2 The criteria for such an application have been well rehearsed in previous caselaw, including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006), Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was), I.R. v. Minister for Justice and Equality [2009] IEHC 510 [2015] 4 I.R. 144 per Cooke J., M.A.U. v. Minister for Justice Equality and Law Reform (No. 3) [2011] IEHC 59 (Unreported, High Court, 22nd February, 2011) per Hogan J. I have also discussed these criteria in a number of cases, including S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404 (Unreported, High Court, 14th November, 2016) (para. 2), and Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185 [2017] 3 JIC 2405 (Unreported, High Court, 24th March, 2017) (para. 72).

Applicants' first question

3 The applicants' proposed first question is ‘ Does the Respondent discharge his obligations to have regard to an applicant's family life under s.49(3) of the International Protection Act 2015 by setting out the s. 49(3) criteria?’.

4 To contextualise this point in the circumstances of the present application, the findings in the No. 1 judgment relevant to this issue are set out at paras. 10 – 14. The primary points made in that part of the judgment are as follows:

(i) The Minister did not fail to have regard to the applicants' family rights. The s. 49 factors were cited expressly on p. 2 of the decision and that amounted to consideration, albeit not the sort of narrative discussion that the applicant wanted.

(ii) It was clear from the decision that the Minister did not conflate s. 49 with art. 8 of the ECHR, as applied by the European Convention on Human Rights Act 2003.

(iii) In any event, no submissions were made by the applicants under this heading and, therefore, they cannot seek to quash the decision on a basis which they never raised before the decision-maker.

(iv) This was a review decision so it should be read in tandem with the original s. 49 decision, which does at p. 2 refer to the various specific elements of the applicants' family life. It was not necessary for a review decision to repeat that discussion.

(v) Furthermore, the claim in submissions of a de facto family involving the applicants and the mother's brother appeared to be a mischaracterisation on the facts insofar as the brother lived in Dundalk while the applicants live in Sligo.

5 The point that seems to have eluded the applicants is that lack of narrative discussion of an issue does not amount to failure to consider that issue and that where a decision-maker states that something has been considered, the onus is on the applicant to put forward some proof either direct or inferential to displace that before he or she can obtain relief by way of judicial review. That has already been clarified by the Supreme Court in G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418 [2002] 1 I.L.R.M. 401 so there is no particular benefit in having further reiteration of the point by the appellate courts.

6 I suggested in the No. 1 judgment that the next time anyone confused the question of consideration on the one hand with narrative discussion on the other, counsel might beneficially list the cases in which this point has already been dealt with. Very helpfully indeed, Ms. Cooney has now provided what I am sure will be an invaluable resource to applicants' counsel in the future by listing in submissions the various cases in which this point has been repeatedly emphasised by the courts. The cases that she identifies are as follows:

(i) F.A.Y. (Nigeria) v. Minister for Justice and Equality [2019] IEHC 373 (Unreported, High Court, 6th June, 2019).

(ii) F.Z. (Pakistan) v. Minister for Justice and Equality [2019] IEHC 368 [2018] 11 JIC 2603 (Unreported, High Court, 26th November, 2018).

(iii) F.A.F. (Nigeria) v. Minister for Justice and Equality [2019] IEHC 263 [2019] 4 JIC 1216 (Unreported, High Court, 12th April, 2019).

(iv) J.U.O. (Nigeria) v. Minister for Justice and Equality [2018] IEHC 710 [2018] 12 JIC 0406 (Unreported, High Court, 4th December, 2018).

(v) J.M. (Malawi) v. International Protection Appeals Tribunal [2018] IEHC 663 [2018] 11 JIC 2004 (Unreported, High Court, 20th November, 2018).

(vi) O.A. (Nigeria) v. International Protection Appeals Tribunal [2018] IEHC 661 [2018] 11 JIC 2003 (Unreported, High Court, 20th November, 2018).

(vii) A.W.K. (Pakistan) v. Minister for Justice and Equality [2018] IEHC 550 [2018] 9 JIC 2506 (Unreported, High Court, 25th September, 2018).

(viii) Y.Y. v. Minister for Justice and Equality (No. 7) [2018] IEHC 459 [2018] 7 JIC 3134 (Unreported, High Court, 31st July, 2018).

(ix) O.M.A. (Sierra Leone) v. Refugee Appeals Tribunal [2018] IEHC 370 [2018] 6 JIC 1206 (Unreported, High Court, 12th June, 2018).

(x) H.I. (Albania) v. Minister for Justice and Equality [2018] IEHC 275 [2018] 4 JIC 1909 (Unreported, High Court, 19th April, 2018).

(xi) F.M. (Democratic Republic of Congo) v. Minister for Justice and Equality [2018] IEHC 274 [2018] 4 JIC 1706 (Unreported, High Court, 17th April, 2018).

(xii) Martins v. Minister for Justice and Equality [2018] IEHC 268 (Unreported, High...