L (Q) & Y (Y) v Minister for Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 15 June 2010
• Neutral Citation: [2010] IEHC 223
• Docket Number: [No.709 J.R./2010]
• Court: High Court
• Date: 15 June 2010

[2010] IEHC 223

THE HIGH COURT

[No.709 J.R./2010]

L (Q) & Y (Y) v Min for Justice

MR JUSTICE COOKE

APPROVED TEXT

JUDICIAL REVIEW

BETWEEN/

Q. L. AND Y. Y.

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

IMMIGRATION ACT 1999 S3(3)(A)

REFUGEE ACT 1996 S11

IMMIGRATION ACT 1999 S3(11)

POINT EXHIBITION CO LTD v REVENUE CMRS 1993 2 IR 551 1993 ILRM 621 1993/9/2596

NEARING v MIN FOR JUSTICE UNREP COOKE 30.10.2009 2009/42/10430 2009 IEHC 489

REFUGEE ACT 1996 S5

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

RSC O.84 r18(2)

IMMIGRATION ACT 1999 S3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

LELIMO v MIN FOR JUSTICE 2004 2 IR 178 2004/27/6362 2004 IEHC 165

EUROPEAN ARREST WARRANT ACT 2003 S3(1)

C (L) v MIN FOR JUSTICE 2007 2 IR 133

EUROPEAN ARREST WARRANT ACT 2003 S3

IMMIGRATION

Deportation order

Revocation - Declaration implementation of order would be unlawful - Interlocutory injunction - Circumstances where order of mandamus compelling decision appropriate - Circumstances where declaratory relief permissible in absence of primary relief by way of certiorari or mandamus - Balance of convenience - Effect of false information on interlocutory injunction application - Whether declaratory relief indirect attempt to challenge validity of deportation order - Whether stateable case or arguable grounds for judicial review - Whether interlocutory injunction appropriate - Point Exhibition Co Ltd v The Revenue Commissioners [1993] 2 IR 551; LC v Minister for Justice [2006] IEHC 36, [2006] IESC 44, [2007] 2 IR 133 applied - Nearing v Minister for Justice [2009] IEHC 489, (Unrep, HC, Cooke J, 30/10/2009) approved - Lelimo v Minister for Justice [2004] IEHC 165, [2004] 2 IR 178 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Refugee Act 1996 (No 17), s 5 - Immigration Act 1999 (No 22), s. 3 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - European Convention on Human Rights Act 2003 (No 20), s 3 - European Convention on Human Rights 4/11/1950, art 8 - Leave granted (2010/709JR - Cooke J - 15/6/2010) [2010] IEHC 223

L(Q) v Minister for Justice, Equality and Law Reform

Facts: The applicants sought an order of manadamus compelling the Minister to revoke a deportation order made against the first named applicant. An order was also sought that the implementation of the deportation order would be unlawful together with an interlocutory injunction to restrain the Minister from deporting the first named applicant pending the outcome of the proceedings. The first named applicant was a national of China, as was the second applicant and the first applicant had first entered the State illegally in 2005 using a false passport. He had failed to attend a statutory interview with the Refugee Applications Commissioner. No representations were made by the applicant against a deportation order issued by the Minister in 2005. The applicant was arrested and detained in Cloverhill Prison in 2010. The applicant then sought to contend that a change in the circumstances of the applicants warranted a revocation of the deportation order on account of their increased involvement with the Falun Gong cult or movement in Ireland. The applicants contended that the implementation of the valid and existing deportation order was invalid as it violated the prohibition on refoulement pursuant to s. 5 Refugee Act 1996 and that their separation as husband and wife would amount to an infringement of s. 3 European Convention on High Rights Act 2003 and their rights to private and family life as protected under ECHR and Irish Constitutional law.

Held by Cooke J. that the Court could not quash the valid order but could delay its execution until the Minister had an opportunity to consider whether the alleged change of circumstances was sich as to warrant its revocation. The Court was satisfied that the low applicable threshold for leave had been reached and the could would grant reliefs as to the breach of the Act of 2003 and the alleged threatened breach of the constitutional and Convention rights of the first named applicant. The Court had to consider the balance of convenience in its wider sense. The first named applicant was unlawfully present in the State. The dilemma in which the applicants found themselves was entirely the making of the first applicant. In the circumstances, it was unreasonable and offensive to the balance of convenience to place the restraint of an interlocutory injunction on the Minister. There would be an order granting leave to seek the declaratory relief sought but leave was refused by way of mandamus and no interlocutory inunction would be granted.

Reporter: E.F

Mr. Justice Cooke

1 This is an application for leave to seek judicial review, primarily in the form of an order ofmandamus to compel the respondent Minister to give a decision on an application for revocation of a deportation order dated 20^th January, 2006 made against the first named applicant. Leave is also sought for an application for a declaratory order to the effect that implementation of the deportation order would now be unlawful together with an interlocutory injunction to restrain the Minister deporting the first named applicant pending the outcome of the present proceeding.

2 The factual context in which the application is made is of some importance and can be summarised as follows. The first named applicant is a national of China who entered the State illegally using a false passport in March 2005. When he was arrested he claimed asylum. At that time he claimed to have fled China in order to escape being killed by a Mafia to whom he owed money. In a more recent affidavit sworn for this proceeding on 10 June, 2010, he says he left China lawfully on a visa to study in Malta.

3 He failed to attend for the statutory interview by the Office of the Refugee Applications Commissioner on 18^th April, 2005 and his asylum application was deemed withdrawn. He now frankly admits in his recent affidavit that, contrary to the assertion of his wife, the second named applicant in her affidavit of 1^st June, 2010, he had indeed been notified of that interview but had decided not to attend because he feared he would be deported.

4 On 15^th May, 2005, the Minister gave notification to the first named applicant under s. 3 (3) (a) of the Immigration Act 1999 that he proposed to make a deportation order. No representations were made against that proposal in response to the invitation in the notification.

5 On 20^th January, 2006, the deportation order was made and was notified to the first named applicant by letter of 30^th January, 2006. This directed the first named applicant to report to the GNIB with a view to arranging deportation on 9^th February, 2006. He did not do so. The applicant accepts in his affidavit that he had left the only address then known to the authorities (-) a hostel in Dublin and did not notify of any change of address in order to avoid being deported. So far as the authorities were concerned, accordingly, the applicant effectively disappeared for five years.

6 The second named applicant is also a native of China. She is - or was - a student and has permission to remain in the State on that basis until 31^st December, 2010. Although the Court has not been admitted to the intimacies of their initial meeting and courtship, it is informed that the applicants married in the State on 28^th July, 2009 and that a daughter was born to them in Dublin on 18^th November, 2009. The Court has not been furnished either with any explanation of the whereabouts, activities or means of livelihood enjoyed by the first named applicant since his disappearance in 2005. In the certificate of the marriage he is described as a student. In the certificate of the daughter's birth he describes himself as a chef. The second named applicant describes herself in that certificate not as a student but as a barmaid. A person unlawfully present in the State in such circumstances does not have an entitlement to be in employment. At the hearing of this application the Court (and the respondent) were informed that the applicant's daughter was now in China with her grandparents. How she was brought there and by whom was not disclosed.

7 On 23^rd April, 2010 the first named applicant was arrested and detained in Cloverhill Prison. On 30^th April, 2010 the applicant's solicitor applied to the Minister to have the deportation order of 20^th January, 2006 revoked. That application was made on a basis that was, at least in part, false in that it was contended that the first named applicant had not been aware of the convening of the s. 11 interview in April 2005. The application was otherwise made on the basis of the changes in the applicants' circumstances since 2006 namely the marriage and the birth of the daughter. This application was supplemented by a letter of 24^th May, 2010 which introduced a new factor into the changed circumstances relied upon in that it claimed that both applicants had, since 2005, become "deeply involved" in the Falun Gong cult or movement and would therefore face a risk of persecution by Chinese authorities if returned to that country. Documentation by way of information as to the attitude of the authorities to practitioners of that movement was submitted with the letter.

8 Those, accordingly, are the circumstances in which the application is brought for leave to seek an order ofmandamus, a declaration and for an interlocutory injunction to restrain deportation.

9 It is appropriate to deal first with the application for leave in respect of the proposed order ofmandamus. As...