J (A) and Others [Afghanistan] v Min for Justice (No 2)

• Jurisdiction: Ireland
• Judge: MS JUSTICE CLARK,
• Judgment Date: 18 June 2013
• Neutral Citation: [2013] IEHC 296
• Court: High Court
• Date: 18 June 2013

[2013] IEHC 296

THE HIGH COURT

Record No. 786 J.R./2012

J (A) & Ors [Afghanistan] v Min for Justice (No 2)

JUDICIAL REVIEW

Between:

A. J., K.J., Z.J. (A MINOR, SUING BY HIS FATHER AND NEXT FRIEND A.J.) AND R.J. (A MINOR, SUING BY HER FATHER AND NEXT FRIEND A.J.) [AFGHANISTAN] (No. 2)

APPLICANTS

-AND-

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JAMALI (A MINOR) v MIN FOR JUSTICE UNREP CLARK 24.1.2013 2013 IEHC 27

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

RSC O.84 r21(1)

REFUGEE ACT 1996 S5

REFUGEE ACT 1996 S17(7)

IMMIGRATION ACT 1999 S3(6)

IMMIGRATION ACT 1999 S3

COSGRAVE v DPP UNREP SUPREME 26.4.2012 2012 IESC 24

SULAIMON (AN INFANT) v MIN FOR JUSTICE UNREP SUPREME 21.12.2012 2012 IESC 63

RAWSON v MIN FOR DEFENCE UNREP SUPREME 1.5.2012 2012/40/11874 2012 IESC 26

MALLAK v MIN FOR JUSTICE 2013 1 ILRM 73 2012/24/6926 2012 IESC 59

S (J D) v MIN FOR JUSTICE & ORS UNREP COOKE 11.7.2012 2012/41/12289 2012 IEHC 291

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S5(1)

EEC DIR 83/2004 ART 21

CONVENTION RELATING TO THE STATUS OF REFUGEES 28.7.1951 (GENEVA CONVENTION) ART 33

IMMIGRATION ACT 1999 S3(6)

P (F) & ORS v MIN FOR JUSTICE 2002 1 IR 164 2002 1 ILRM 38 2001/20/5496

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

O'DONOGHUE v BORD PLEANALA & TALLON PROPERTIES LTD 1991 ILRM 750 1991/5/1081

SWEENEY, STATE v MIN FOR ENVIRONMENT & LIMERICK CO COUNCIL 1979 ILRM 35

POK SUN SHUM v IRELAND 1986 ILRM 593

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 ART 13

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 41

LYNCH, STATE v COONEY & AG 1982 IR 337

DALY, STATE v MIN FOR AGRICULTURE 1987 IR 165 1988 ILRM 173 1987/2/387

INTERNATIONAL FISHING VESSELS LTD v MIN FOR MARINE 1989 IR 149 1988/8/2385

CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51 1989 ILRM 104 1988/1/79

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

E (J) v MIN FOR JUSTICE EQUALITY & LAW REFORM 2011 1 IR 574 2010/18/4345 2010 IEHC 372

Judicial Review – Permission to remain – Family reunification – Refoulement

Facts: In the judicial review proceedings the applicants sought declarations regarding the reasoning of the Respondent Minister”s decision to grant the first applicant permission to remain in Ireland. There had been a failure to challenge the lawfulness of the denied visa applications of the applicant”s family within required time limits. The hope was that the s. 3(6) decision of the Immigration Act 1999 granting leave to remain, could be transformed into a decision based on refoulement; producing a right for the applicant to be joined by his family in Ireland.

Clark J held the proceedings could not be brought to overcome the failure to challenge the refusal to grant visas to his wife and children. The reasons behind the Minister”s decisions were clear, he had been granted leave to remain on humanitarian grounds under s. 3(6). Leave was not based on refoulement and therefore did not give rise to prospective reunification rights.

1 JUDGMENT OF MS JUSTICE CLARK, delivered on the 18th day of June 2013

2 1. These are among the most unusual proceedings which this Court has encountered. The applicants seek declarations within judicial review proceedings of the respondent Minister's decision dated the 22 ^nd December, 2008, which granted permission to the first applicant A.J. to remain in Ireland.

3 2. A J. and his wife and children are nationals of Afghanistan. His children Z.J. and R.J. are minors and they live with their mother K.J. in Iran and have never been in this State. The proceedings are intrinsically involved with the Minister's refusal to grant them long stay visas to join their father / husband in Ireland. They seek a series of declaratory reliefs but do not challenge the refusal to grant the visas as might be expected. Instead, they challenge the adequacy of the reasons given for the Minister's positive decision granting A.J. leave to remain.

4 3. A.J. claims that his wife and children are currently living illegally in Iran in very deprived conditions. The Minister's refusal to grant visas permitting them to enter and reside in Ireland was stated to be due to his general policy not to permit any person, whether related or not, to join or visit any persons who have been granted temporary permission to remain in the State. Thus, persons facing deportation who are granted leave to remain are informed that they cannot have any legitimate expectation that family members will be permitted to join them. While the decision to refuse the visas might have been the obvious object of challenge, the applicants have elected to pursue a particularly tortuous route and mounted this very unusual and inventive set of proceedings.

5 4. While legal inventiveness is a powerful and admirable tool to challenge rigidly held legal concepts which in turn may lead to the recognition of previously unspecified or enumerated rights, the Court is not convinced that legal creativity has any place when dealing with facts.

6 5. The facts are that the case comes before the Court by order of Ryan J. dated the 17 ^th September, 2012, when the applicants sought leave on an ex parte basis to apply for judicial review of the Minister's decision in order to obtain the following reliefs:-

7 (i) A declaration that the first applicant is entitled to be given reasons for the decision made on 22 ^nd December 2008 granting him permission to be in the State pursuant to s. 4 of the Immigration Act 2004;

8 (ii) A declaration that the decision, and the reasons therefore, on their true construction, being based on the specific facts of the applicant's case amounts to an acknowledgement of the respondent that the first applicant is entitled to protection on the basis of non-refoulement;

9 (iii) In the alternative, a declaration that the purported reasons furnished to the first applicant on 18 ^th June 2012 are so opaque as to render the applicants' constitutional right of access to the courts pursuant to Article 40 of the Constitution ineffective;

10 (iv) An order directing the respondent to furnish full and clear reasons for his decision of 22 ^nd December 2008, as further clarified on 18 ^th June 2012.

11 6. Ryan J. granted leave to the applicants to seek reliefs (i) and (iii) but he directed that the application for leave to seek relief (ii) should be moved on notice to the respondent Minister. The applicants issued and served their motion and also applied for an urgent prioritised hearing. In support of that application documents relating to A.J. and to his wife and son were furnished ex parte to the Court and ultimately, by direction of this Court, to the Minister. The situation urged on the Court in support of the application for priority related to the son's ill health, the poor conditions under which the family were living in Iran and the length of time the husband / father was waiting to be reunited with his family. The respondent then served a counter-motion seeking to have the order of Ryan J. set aside on the basis that the application for leave to seek all reliefs should have been moved on notice to the respondent. That motion was considered by this Court and refused by decision dated the 24 ^th January, 2013 (A.J. v. The Minister [2013] IEHC 27).

12 7. The substantive case proceeded on the 14 ^th and 15 ^th March, 2013. Ms Sunniva McDonagh S.C. with Mr James Buckley B.L. appeared for the applicants and Mr Frank Callanan S.C. with Mr David Conlan Smyth B.L. appeared for the respondent. The Court was informed at the end of the proceedings that an appeal to the Supreme Court had been lodged by the respondent in relation to the determination of the preliminary issue of whether the entire leave application should have been on notice to the Minister.

Time

13 8. The respondent argues that the applicants are significantly out of time in bringing these proceedings which were commenced in mid-September 2012. The Court has ruled that the decision of the 22 ^nd December, 2008 is not governed by Section 5 of the Illegal Immigrants (Trafficking) Act 2000 and so the applicants are subject to the three month time limit prescribed by Order 84, rule 21(1) of the Rules of the Superior Courts. As certiorari is not sought, the time limit is unaffected by the 2011 amendments to that Order but the applicant father remains very much out of time. The applicants argue that the time limit did not begin to run until the 18 ^th June, 2012, when pursuant to a Freedom of Information request the Minister released a Memorandum to the applicants which contained a reference to Section 5 of the Refugee Act 1996. In their contention it was not until then that the applicants became aware that the Minister had considered Section 5 in arriving at his decision to grant leave to remain and that this previously unknown factor cast new light over the 2008 decision. The applicants assert that only then did they become aware of the possibility that leave to remain was granted because the Minister believed that to return A.J. to Afghanistan would effect a prohibited refoulement, and was not based on humanitarian grounds. The respondent refutes this contention, arguing that the applicants are using this untenable argument to overcome their unconscionable delay. The Court agreed to hear the application in full before determining the delay issue.

BACKGROUND

14 9. It is common case that the immigration history of A.J. is material when considering the Minister's reason(s) for granting him leave to remain. He came to Ireland from Afghanistan in December 2004 in search of asylum, leaving his wife and three small children behind. He claimed...