L. & Anor -v- MJELR & Anor, [2009] IEHC 107 (2009)

Docket Number:2006 278 JR
Party Name:L. & Anor, MJELR & Anor
Judge:McCarthy J.

Neutral Citation Number: [2009] IEHC 107THE HIGH COURT2006 278 JRBETWEENR.O.L. AND L.S.APPLICANTSANDTHE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,THE ATTORNEY GENERALRESPONDENTSANDTHE HUMAN RIGHTS COMMISSIONNOTICE PARTYJUDGMENT of Mr. Justice McCarthy delivered on the 5th day of March, 20091. The applicants are both Nigerian citizens. The second applicant has apparently lived legally in this jurisdiction since or on or about the 2nd May, 2000, having arrived here at the age of seventeen in 1997. Her entitlement to be present in the jurisdiction falls to be renewed annually. The first applicant arrived in the jurisdiction on or about the 16th July, 2001 and thereupon applied for asylum. That application was unsuccessful and ultimately on 7th February, 2005 the Minister for Justice made a deportation order in exercise of the powers conferred upon him by s. 3(1) of the Emigration Act, 1999. Subsequent to that order, the applicant commenced proceedings in this court, apparently in relation thereto and I am informed that those proceedings were compromised: I have no knowledge of the terms thereof. I infer, however, that it was agreed that the first applicant should be afforded an opportunity to make fresh representations for leave to remain in the jurisdiction, notwithstanding the fact that his application for refugee status had been refused. One infers that the settlement must have contemplated that the Minister would retake the decision to refuse leave to remain or else such fresh representations would have been pointless. Presumably if the Minister reconsidered his earlier decision, he would revoke the deportation order.2. In any event representations were made in writing on behalf of the applicant to the Minister on 29th December, 2005. These were duly considered by the Minister, who on 20th January, 2006 affirmed the earlier deportation order (or to put the matter another way, refused to revoke it and afford leave to remain to the first applicant). The decision was communicated to the first applicant's solicitors by letter dated the 17th February, 2006. In any event on 20th February, 2006 further representations were made by his solicitors on behalf of the first applicant to the Minister. This pertained to the fact that the second applicant had a consultation with a gynaecologist at the National Maternity Hospital on 6th April, 2006 in respect of fertility treatment, then apparently being undergone by her. The Minister replied to that letter on 22nd February pointing out that the first applicant's medical condition had been taken into consideration when the deportation order was affirmed by him. The letter of 20th February, 2006 merely, of course, provided information pertaining to a given appointment - the representations in writing of 29th December, 2005 gave relatively full information to the Minister in relation to that issue and the letter of 20th February adds nothing beyond informing the Minister of the fact of an appointment in respect of on-going medical treatment already made known to him. It is beyond me, for what it is worth, however, why this information (so far as it is of any significance) was not brought to the attention of the Minister until the letter of 20th February since the appointment was made on or about the 24th January, 2006. The fact of the medical appointment in respect of medical treatment of the kind in question, of course, adds nothing of substance what the first applicant already choose to tell the Minister, in as much as one assumes that it is inherent in any such treatment that one might consult from time to time with one's doctors.3. In any event my colleague Hanna J., on 7th March, 2007 afforded the applicants leave to seek inter alia the following reliefs, namely:-1. An Order of Certiorari by way of an application for judicial review quashing the decision of the Respondent re-affirming the deportation order relating to the first named Applicant and notified to the first named Applicant no earlier than 20"` February, 2006;2. A Declaration by way of an application for judicial review that the respective decisions of the Respondent communicated by letter dated 17th February 2006 is ultra vires;3. A Declaration pursuant to section 5(1) of the European Convention on Human Rights Act, 2003 that the rule of law governing the scope of judicial review relating to deportation decisions set out in O'Keeffe v An Bord Pleanála is incompatible with the European Convention on Human Rights in that the test so afforded fails to constitute an effective remedy for the purposes of Article 13 of the said Convention;4. The grounds upon which the court afforded leave to seek that relief are as follows, namely:-1. The Respondent acted in violation of the Applicants rights to respect for the family life as protected by Article 8 of the European Convention on Human Rights.2. It is disproportionate to affirm the deportation order.3. The Respondent took into account irrelevant considerations and/or failed to take into account relevant considerations.4. The Applicant's human rights will be compromised by the impugned decisions herein such that they are entitled to a judicial examination of the decisions, the reasoning behind the decisions and the evidence upon which the decisions are based. Insofar as this Honourable Court is restricted to confining itself to the "O'Keeffe test" in reviewing the said decisions, such a review is inadequate and contrary to the rights guaranteed by the European Convention on Human Rights such as to indicate incompatibility with the said Convention, and, if appropriate, the Applicants seek a declaration of incompatibility pursuant to section 5(1) of the European Convention on Human Rights Act 2003.5. A statement of opposition dated 18th May, 2007 has been delivered and it consists in a full traverse of the applicants averments.6. The first issue which was argued before me pertained to the test to be applied by the court exercising its jurisdiction of judicial review of administrative action. As we know, an administrative decision may be held ultra vires, firstly, in the event of certain errors of law, on the basis of breaches of the constitutional rights of the party (in a case such as the present) (including a failure to apply the principles of constitutional justice), thirdly on the grounds of irrationality. A fourth ground has been separately propounded, namely, what is shortly termed "proportionality", confined to cases where it might be contended that the right of a party will only be proportionate to some other desiradum or right. It seems to me that in many cases, any error under the latter head may constitute a breach of a party's constitutional right or, perhaps, a convention right. The test to which I refer arises, of course, only when one is seeking to impugn a decision on the grounds of irrationality and this is relevant here because it is inter alia alleged that the impugned decisions "are unreasonable, irrational and arbitrary".7. In my decision in B.J.N. v. The Minister for Justice and Others, (Unreported, High Court, 18th January, 2008) and, to a lesser extent in Kamil v. The Refugee Appeals Tribunal and Others (Unreported, High Court, 28th August, 2008). I address the issue of such test. As was stated in the former case:-"The traditional test or threshold for grant of judicial...

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