O.M. v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 28 July 2017
• Neutral Citation: [2017] IEHC 617
• Court: High Court
• Docket Number: [2016 No. 72 J.R.]
• Date: 28 July 2017

[2017] IEHC 617

THE HIGH COURT

JUDICIAL REVIEW

Faherty J.

[2016 No. 72 J.R.]

BETWEEN

O. M.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Asylum, Immigration & Nationality – S. 18(4) of the Refugee Act 1996 – Refusal to grant family reunification application – Post hoc dependency – Statutory discretion – Absence of documents – Fair procedures – Reasoned decision

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for refusing the applicant's application for family reunification in relation to his sister and the son of the sister pursuant to s. 18(4) of the Refugee Act 1996. The key issue arose as to whether the respondent acted without vires to consider an application for family reunification when the family member in relation to whom the application was filed was already in the State.

Ms. Justice Faherty quashed the decision of the respondent and remitted the matter for fresh consideration. The Court however held that the respondent did not act in excess of her vires in considering the within application for granting family reunification where a family member of a refugee family reunification applicant was already in the State at the time of making that application. The Court held that the finding made by the respondent in relation to the 'dependency' was unclear. The Court observed that lack of evidence of residence of applicant's sister could not sustain the respondent's conclusion that the respondent was not satisfied that the applicant's sister was a dependent family member for the purposes of the 1996 Act. The Court observed that the respondent failed to consider the relevant factors such as financial status of the applicant and the dependant status of her sister. The Court found that the decision of the respondent did not reflect the factors that she took into account while refusing the application for family reunification.

JUDGMENT of Ms. Justice Faherty delivered on the 28th day of July, 2017

1 In these proceedings the applicant seeks to quash the decision of the respondent refusing the applicant's application for family reunification pursuant to s. 18(4) of the Refugee Act 1996, as amended ('the 1996 Act').

2 The applicant is a Ukrainian national. He came to Ireland as an asylum seeker in March 2003. He was granted refugee status by the respondent on 30th December, 2004, and has resided in the State since that time. The applicant is married with two children and is employed as a clinical researcher.

3 On 20th October, 2014, the applicant applied for refugee family reunification in respect of his sister and her son, the applicant's nephew. On 21st November, 2014, he was informed that the application in respect of his nephew was not accepted as his nephew did not come under the ambit of s. 18(4) of the 1996 Act. The applicant was further advised that the application in respect of his sister had been referred to the Office of Refugee Applications Commissioner (ORAC) for investigation, as provided for in the 1996 Act.

4 On 24th November, 2014, ORAC sent the applicant a family reunification questionnaire to be completed which the applicant returned on 19th December, 2014. On 4th March, 2015, the applicant submitted additional documents (namely his sister's birth certificate and a divorce certificate) in support of the application. On 10th April, 2015, ORAC notified the applicant that it had completed its investigation of the application and had forwarded its report to the respondent for a decision. A copy of the report was enclosed.

5 The ORAC report noted, inter alia, information which had been provided by the applicant in support of the application, notably:

• That his sister was currently residing with him in Ireland following her arrival in the State in September, 2014;

• That the applicant had lived with his sister in Ukraine from March, 1976 until 1999;

• That for the three years prior to her arrival in Ireland his sister lived on her own in a named part of Ukraine;

• That his sister's marriage to the father of her child had been dissolved in 2004;

• That the applicant's sister had become the victim of ongoing violence in Ukraine and that at the end of August, 2014 she had lost her partner, her house, most of her belongings, some documents and money;

• That his sister had as a result become homeless and had been forced to seek refuge elsewhere in Ukraine;

• That his sister 'suffered severe mental breaks (asked for help in Hospital), depression at the time when [the applicant] tried to help and support her';

• That his sister's boyfriend had arranged her travel and that she had arrived in Ireland in September, 2014 undocumented with the assistance of people unknown to the applicant;

• That the documents (which were not her own) which had been given to the applicant's sister to facilitate her travel had been taken from her;

• That his sister was a teacher with a university degree who had been employed for three years in Ukraine as a physiotherapist until her employment ended due to the conflict there.

6 The author of the report also noted:

'[The applicant] stated in his FR questionnaire that he had not applied for Family Reunification for the subjects prior to now, as when he sought refugee status in Ireland his family situation was different. He stated that ongoing conflict in his country of origin had left his sister homeless, traumatised, and mentally unstable, and that she was forced to leave Ukraine due to her desperate situation and that she had no alternative way of supporting herself. [The applicant] stated in his FR questionnaire that he provides "accommodation, food, basic financial means, and psychological support" in support of the subject of the application.

He stated in his FR questionnaire that his sister does not have a mental or physical disability or illness.

However, he also stated in his FR questionnaire that his sister is deeply traumatised after leaving a place of military conflict and that she is very confused, anxious, in a depressed condition and that he provides a comfortable living environment for her. He states ...that his sister is [a teacher with a university degree and had been employed as a physiotherapist in Ukraine and was] currently "self studying" English at home and helping his family with everyday chores.

...

[The applicant] stated ...that his sister would be able to support herself financially if she were allowed to do so, and that she may be able to obtain work in Ireland as a health-care assistant. He also stated in his FR questionnaire that his sister will be able to support herself after she recovers from her current condition and her status in Ireland is confirmed.

The applicant states ...that he is living in a 4 bedroom house with his wife, daughter, the subject of the application, and her son. He further states that he and his wife (whom he states is employed) have a joint mortgage of €950 per month and that he is employed as a clinical researcher and receives a salary of €3,000 per month. The applicant stated if the subject was granted family reunification, he would be able to offer her and her son a double room in his house. He further states ...that he has savings, and that he is willing to support his sister. The applicant submitted a photocopy of his Nationwide UK (Ireland) account statement showing a balance of €5,900 as of 15/10/2014. The applicant stated if his financial support were to cease, his sister would present her case to [ORAC] and seek refugee status in Ireland.'

7 It was noted that the information which the applicant provided was consistent with that given in his application for asylum in that the name and date of birth given for his sister was the same in both applications.

8 ORAC's findings were as follows:

• The applicant submitted his sister's original driving licence and her original birth certificate to attest her identity.

• He submitted his own birth certificate to attest to their relationship.

• The applicant stated that the subject does not have a mental or physical disability or illness.

• However, he stated in his FR questionnaire and in letter to FR INIS dated 20/10/2014, that his sister was traumatised as a result of problems arising out of the conflict in the Ukraine and that she was confused, anxious, in a depressed condition, mentally unstable, that she suffered from "severe mental breaks (asked for help in Hospital), depression", and that he provides her with psychological support. The applicant has not submitted any medical reports to support his assertions with regard to his sister's psychological condition.

• His sister is part of his separate family unit in that she is divorced and has a child.

• The applicant stated that he is in employment, has savings, and he is willing to continue to provide his sister with accommodation and support.

• He has submitted a financial statement from his Nationwide UK (Ireland) account detailing savings of €5,900.

• The applicant stated that he believes that his sister could find employment and support herself if her status in Ireland is confirmed.

9 The respondent's decision issued on 5th November, 2015 advising the applicant that the respondent had decided 'not to exercise her discretion, pursuant to s. 18(4), to grant the application'. A 'Family Reunification Consideration' accompanied the letter.

10 The relevant contents are as follows:

'[The applicant] has made an application for Family Reunification on the 31st October 2014 ... Section 18(4) (a) of the Act provides that the Minister may, at his or her discretion, grant permission to a dependent member of the family of a refugee to enter and reside in the State.

...

The ORAC report and the documentation submitted have been taken into consideration.

The applicant has provided a birth certificate for the...