G.J. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 20 February 2019
• Neutral Citation: [2019] IEHC 98
• Court: High Court
• Docket Number: [2015 No. 691 JR]
• Date: 20 February 2019

BETWEEN

G.J.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2019] IEHC 98

Keane J.

[2015 No. 691 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Permission to reside in the State – Family member – Applicant seeking judicial review of a decision made on behalf of the respondent to refuse permission to a child to reside in the State as a family member of the applicant – Whether the respondent failed in her statutory duty to decide the identity of the child or her relationship to the applicant, or both

Facts: The applicant applied to the High Court seeking judicial review of a decision made on behalf of the respondent, the Minister for Justice and Equality, dated 15 September 2015, under s. 18(3) of the Refugee Act 1996, to refuse permission to a child to reside in the State as a family member - specifically, as the daughter - of the applicant, who is a refugee. The applicant contended that the Minister’s decision concerning the child was bad in law on the following grounds: 1) the Minister failed in her statutory duty to decide the identity of the child or her relationship to the applicant, or both; 2) the Minister failed to adequately weigh the evidence of the relationship between the child and the applicant; 3) if the Minister was correct that the child was not the child of the applicant and - hence - not a ‘member of the family’ of the applicant within the meaning of that term under s. 18(3) of the 1996 Act, the Minister failed to comply with an obligation to consider whether the child was a ward of the applicant and - hence - a ‘dependent member of the family of the applicant’ within the meaning of that term under s. 18(4) of the 1996 Act; 4) in refusing the family reunification application under s. 18(3) or in failing to consider it under s. 18(4), or both, the Minister failed to have appropriate regard to the best interests of the child.

Held by Keane J that the document purporting to be the child’s Guinean birth certificate did not establish the ‘legal identity’ of the child as the daughter of the applicant, either presumptively or at all, as a matter of the law of the State; nor did it establish, presumptively or at all, the ‘legal position’ in that regard. Keane J held that the argument that the Minister failed to provide adequate reasons for the decision to refuse the application under s. 18(3) of the 1996 Act must fail. Keane J rejected the argument that the Minister unlawfully delegated the duty to make a decision under s. 18(3) of the 1996 Act by requesting the provision of DNA test evidence. Keane J was satisfied that there was no obligation on the Minister to consider the position of the applicant and the child under s. 18(4). Keane J held that it is only where the Minister is exercising a discretion, such as that under s. 18(4) of the 1996 Act or s. 4 of the Immigration Act 2004, that the obligation to consider the best interests of the child arises; there was no reason to suppose that the Minister would not comply with that obligation if required to consider the exercise of any such discretion in the case of the child. Keane J held that there is no principle of law whereby an administrative decision is invalidated for failure to consider the possible existence and effect of evidence beyond that properly before the decision-maker.

Keane J held that the application for judicial review would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 20th February 2019

Introduction

1 This is the judicial review of a decision made on behalf of the Minister for Justice and Equality (“the Minister”), dated 15 September 2015 (“the decision”), under s. 18(3) of the Refugee Act 1996, as amended (“the Refugee Act”), to refuse permission to a child (“H.J.”) to reside in the State as a family member - specifically, as the daughter - of the applicant, who is a refugee. Applications for such permission are widely referred to as family reunification applications.

Procedural history

2 The applicant's statement of grounds is dated 4 December 2015 and was filed three days later. It is accompanied by a verifying affidavit of the applicant, also sworn on 4 December 2015.

3 By order made on 21 December 2015, Mac Eochaidh J granted leave to the applicant to seek an order of certiorari quashing the Minister's decision; an order of mandamus directing the Minister to reconsider the family reunification application; and an injunction preventing the Minister from making any proposal to deport H.J. from the State, pending the result of that reconsideration.

4 The Minister filed a statement of opposition on 14 April 2016. It is supported by an affidavit of verification sworn on 26 April 2016 by Morgan McKnight, a higher executive officer in the Family Reunification Unit in the Minister's Department.

Reasons for each decision, grounds of challenge and grounds of opposition

5 H.J. was refused permission to reside in the State because the Minister is not satisfied that she is a member of the family of the applicant.

6 In summary, the applicant contends that the Minister's decision concerning H.J. is bad in law on the following grounds. First, the Minister failed in her statutory duty to decide the identity of the child or her relationship to the applicant, or both. Second, the Minister failed to adequately weigh the evidence of the relationship between the child and the applicant. Third, if the Minister was correct that H.J. was not the child of the applicant and - hence - not a “member of the family” of the applicant within the meaning of that term under s. 18(3) of the Refugee Act, the Minister failed to comply with an obligation to consider whether H.J. was a ward of the applicant and - hence - a “dependent member of the family of the applicant” within the meaning of that term under s. 18(4) of that Act. And fourth, in refusing the family reunification application under s. 18(3) or in failing to consider it under s. 18(4), or both, the Minister failed to have appropriate regard to the best interests of the child.

7 The Minister joins issue on all of the grounds the applicant has raised, before positively pleading that, once it was “conclusively established” that the applicant was not the father of the child and that the child's identity had not been established for the purpose of of s. 18(3), it was “not within the power of the Minister to consider whether [H.J.] was a ward of the applicant” under s. 18(4). On behalf of the Minister, Mr McKnight more specifically avers that as the applicant is not [H.J.'s] “ward or guardian”, the Minister is is not permitted by the provisions of s. 18(4) of the Refugee Act to consider an application under that subsection. In using the words “ward or guardian”, Mr McKnight is directly quoting the language of s. 18(4), which defines a “dependent member of the family of the refugee” to include, amongst other persons, a “ward or guardian of the refugee who is dependent on the refugee or is suffering from a mental or physical disability to such extent that it is not reasonable for him or her to maintain himself or herself fully”. H.J., a child, cannot be a guardian of the applicant. The pertinent issue is whether, as the applicant contends, the Minister was obliged to consider whether H.J. was the applicant's ward or, as the Minister argues, precluded from addressing that question in the circumstances of this case.

The family reunification application

8 The applicant is a 31 year old man, who arrived in Ireland from Guinea, West Africa, in 2003 as a teenager. In 2004, he obtained a declaration of refugee status. In the written legal submissions filed on his behalf it is asserted that he is now a naturalised Irish citizen; although the applicant did not directly aver to that fact, there is no reason to doubt it. The applicant married in July 2012. There is one child of that marriage. The applicant and his family reside at an address within the State.

9 Through his solicitor, the applicant applied on 14 May 2014 for family reunification with H.J., providing her name and date of birth (which was given as one in 2009) and asserting that she is his daughter.

10 Under cover of a letter dated 9 June 2014, the applicant's solicitor furnished the Office of the Refugee Applications Commissioner (“ORAC”) with a completed questionnaire, prepared with the assistance and legal advice of that solicitor and signed by the applicant on the same date. As recited on its face, the particular form of questionnaire that the applicant selected to complete and, hence, the specific statutory entitlement that the applicant sought to invoke, was that of family reunification with a child of the applicant, under s. 18(3)(b)(iii) of the Refugee Act. Amongst the documents that a refugee invoking that provision was expressly required to supply was the original passport of the child concerned. In filling out that questionnaire, the applicant provided the following information. H.J.'s mother was the applicant's girlfriend at the time of H.J.'s birth (now given as a date in 2008, rather than 2009). The applicant and H.J.'s mother share the same surname but are not related. They split up in 2010. H.J. had never lived with the applicant. She had lived with her mother in The Gambia until approximately seven months prior to the application, when her mother married. Her mother's spouse did not want H.J. to live with them and she was now being cared for by an uncle in Conakry, Guinea. A copy of H.J.'s birth certificate was being translated and would be provided as soon as that was done. The applicant was going to get a passport for her.

11 On 19 June 2014, the applicant's solicitor wrote to ORAC, enclosing a copy of what he described as an original Republic of Guinea birth certificate for H.J., issued in the French language, recording the birth of H.J. on 3 April 2008 and identifying the applicant and the woman...