Lin (A Minor) v The Minister for Justice and Equality No.2

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 11 February 2019
• Neutral Citation: [2019] IEHC 73
• Docket Number: [2014 No. 601 J.R.]
• Court: High Court
• Date: 11 February 2019

[2019] IEHC 73

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2014 No. 601 J.R.]

BETWEEN

YUXIN LIN (A MINOR SUING BY HER FATHER AND NEXT FRIEND MINGHONG LIN), MINGHONG LIN, HAI HONG WANG

APPLICANTS

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

(No. 2)

Asylum & immigration – Chinese nationals – Deportation orders – Application for judicial review – S 5 Illegal Immigrants (Trafficking) Act 2000 – Leave to appeal

Facts: The applicants, a mother and father from China and their child, had been served with deportation orders after it was determined they had no permission to remain in the State. They had sought to challenge those orders considering the provisions of the Illegal Immigrants (Trafficking) Act 2000, permission for which was refused in an earlier hearing [2018] IEHC 780. They now applied for leave to appeal

Held by Humphreys J, that the application would be refused. The applicants had failed to demonstrate an appeal was justified having considered the leading case law on leave to appeal applications.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 11th day of February, 2019

1 In Lin v. Minister for Justice and Equality (No. 1) [2018] IEHC 780 (Unreported, High Court, 18th December, 2018) I rejected an application for certiorari of what was described as a ‘ decision’ to refuse to consider an application for permission under s. 4 of the Immigration Act 2004 in respect of the first-named applicant and for certiorari of a proposal to deport the first-named applicant. The proceedings were held up for many years by reason of a misconceived notion that the case was covered by the point ultimately decided in Luximon v. Minister for Justice and Equality [2018] IESC 24 [2018] 2 I.L.R.M. 153. However, the fundamental distinction with Luximon is that these applicants never had permission to be in the State, unlike the applicants in Luximon. The applicants now apply for leave to appeal and I have received helpful submissions from Mr. Colm O'Dwyer S.C. (with Mr. James Buckley B.L.) for the applicants, and from Mr. Rory Mulcahy S.C. (with Mr. Anthony Moore B.L.) for the respondent.

2 I have considered the caselaw on leave to appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, MacMenamin J., 13th November, 2006) and Arklow Holidays v. An Bord Pleanála [2008] IEHC 2, per Clarke J. (as he then was). 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 proposed question

3 The applicants” proposed first question of exceptional public importance is ‘ does the Minister have a power to process a residence application made on behalf of the child born in the State, which is made directly to the Minister and in which reliance is placed upon a power conferred by s. 4 of the Immigration Act, 2004 and the principles in Saleem v. Minister for Justice Equality and Law Reform [2011] IEHC 223’.

4 The problem for the applicants is that insofar as the case turns on the central question of the scope of s. 4 of the 2004 Act, that has already been clarified by the Supreme Court. As noted in para. 4 of the No. 1 judgment, the Supreme Court has already held that ‘ the obvious focus of s. 4 is not to set some general template for all permissions granted, but rather to make provision for the decision of immigration officers at point of entry to the State’ per O'Donnell J. in Sulaimon v. Minister for Justice and Equality ...