Mavlanous v The Minister for Justice and Equality and Law Reform
| Jurisdiction | Ireland |
| Judge | Mr Justice David Keane |
| Judgment Date | 10 July 2019 |
| Neutral Citation | [2019] IEHC 501 |
| Docket Number | [2016 No. 766 JR] |
| Court | High Court |
| Date | 10 July 2019 |
[2019] IEHC 501
THE HIGH COURT
JUDICIAL REVIEW
Keane J.
[2016 No. 766 JR]
Preliminary issue – Removal order – Abuse of process – Applicant seeking to challenge a decision made by the respondent affirming a removal order – Whether the proceedings should be dismissed as an abuse of process
Facts: A preliminary issue arose in proceedings, which concerned a challenge to a decision made by the respondent, the Minister for Justice and Equality, on 9 September 2016, affirming a removal order, made on 15 March 2013, against the applicant, Mr Mavlanous, a Latvian national and, hence, European Union citizen, imposing upon him an exclusion period of ten years, under Reg. 20 of the European Communities (Free Movement of Persons) Regulations 2006 and 2008. The preliminary issue was whether the proceedings should be dismissed as an abuse of process because of the applicant’s lack of candour, male fides and gross misconduct in bringing and initially maintaining them on the basis of a deliberate deceit that he admitted only after it had been incontrovertibly established.
Held by the High Court (Keane J) that, having applied Sivsivadze v Minister for Justice [2016] 2 IR 403: (i) these were judicial review proceedings simpliciter, in which the applicant sought the discretionary remedy of judicial review of a discrete decision affecting him, and in which the applicant’s calculated decision to lie on oath in pursuit of that remedy had provided ample grounds to dismiss the proceedings because of the egregious abuse of the judicial process that the applicant’s conduct represents; (ii) there was no countervailing constitutional interest, comparable to the right of appeal to the Supreme Court in a case involving a challenge to the constitutionality of a statute, at issue in this case; (iii) while the interests of a child, such as the applicant’s daughter, are of paramount importance, there was very little evidence, as distinct from assertion, before the court concerning the best interests of that child in this case; and (iv) Keane J could not be satisfied concerning the effect, if any, on the right to family life under the Constitution and the European Convention on Human Rights that the dismissal of the applicant’s proceedings may have.
Keane J held that the proceedings should be dismissed as an abuse of process.
Proceedings dismissed.
A preliminary issue arises in these proceedings, which concern a challenge to a decision made by the Minister for Justice and Equality (“the Minister”) on 9 September 2016, affirming a removal order, made on 15 March 2013, against the applicant, a Latvian national and, hence, European Union citizen, imposing upon him an exclusion period of ten years, under Reg. 20 of the European Communities (Free Movement of Persons) Regulations 2006 and 2008 (“the 2006 Regulations”). For ease of reference, I will refer to the decision of 9 September 2016 as “the review decision.”
The preliminary issue is whether these proceedings should be dismissed as an abuse of process because of the applicant's lack of candour, male fides and gross misconduct in bringing and initially maintaining them on the basis of a deliberate deceit that he admitted only after it had been incontrovertibly established.
The applicant was born in 1968. He claims to have entered the State in 2004, commencing employment here in September of that year. If his evidence can be relied upon, he later acquired a right of permanent residence in Ireland under Article 16 of Directive 2004/38/EC (“the Citizens” Rights Directive”). The applicant's marriage to a Latvian national was registered in Latvia on 7 July 2007. The couple have an Irish citizen daughter, born in 2010.
The applicant came to the attention of An Garda Síochána on 26 March 2008 when a sexual offence complaint was made against him.
The criminal complaint was as follows. On 25 March 2008, a number of persons were socialising at a house in Dublin. The complainant, a 21-year-old woman, went upstairs to use the bathroom. The applicant followed her into the bathroom and orally raped her there. The applicant made a voluntary statement under caution on 26 March 2008, denying any sexual contact with the complainant. The applicant was arrested and detained for questioning on 19 October 2009, during which detention a DNA sample was obtained from him. Forensic testing disclosed that the applicant's DNA profile matched that of semen found on the complainant's clothing and on various items taken from the bathroom in which the rape occurred. The applicant was questioned further on 18 February 2010.
On 21 March 2011, the applicant entered a plea of guilty before the Central Criminal Court to the rape of the complainant, contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. On 25 July 2011, he was sentenced to a term of imprisonment of six years, three years of which were suspended.
On 23 April 2012, through the Irish Naturalisation and Immigration Service (“INIS”), the Minister wrote to the applicant to inform him of the Minister's proposal to make a removal order against him, under the power to do so conferred by Reg. 20(1)(a) of the 2006 Regulations where “in the opinion of the Minister, the conduct or activity of the person is such that it would be contrary to public policy … to permit the person to remain in the State.” The conduct identified was the rape that the applicant committed on 25 March 2008, as evidenced by his conviction and sentence for that offence in 2011. The letter went on to inform the applicant that the Minister was also proposing to impose upon him a period of exclusion from the State of ten years, in accordance with Reg. 20(1)(c) of the 2006 Regulations.
Through his solicitor, the applicant made representations against that proposal on 9 and 20 July 2012. The INIS acknowledged receipt of those representations on 2 August 2012, before requesting the provision of a letter of authority for those solicitors to act on the applicant's behalf and whatever further evidence the applicant wished to provide on his application in general and on his family life, if any, within the State, in particular. The applicant's solicitors did not provide a letter of authority from the applicant, nor any further submissions on the applicant's behalf.
Having considered the representations that had been furnished, the Minister nonetheless made a removal order against the applicant on 15 March 2013, incorporating an exclusion period of ten years. That order was based upon a four-page “examination of file” report and recommendation, made by an officer of the Minister on the same date. A copy of the order and the examination-of-file on which it was based were furnished to the applicant in prison, by letter dated 19 March 2013.
The applicant was removed from the State, pursuant to the removal order, on 16 October 2013, the day of his release from prison.
The applicant re-entered the State in breach of the removal and exclusion order. He has averred that he did so in October 2014 and that he lived with his wife and daughter here.
On 18 January 2016, the applicant wrote to the Minister, through the INIS, to request a review of the decision to make that order, providing an address in Dublin but not otherwise acknowledging that he was in ongoing breach of the removal order. The applicant's wife wrote a letter to the INIS the following day in support of the applicant, assuming the letter is authentic.
The INIS acknowledged receipt of the applicant's request for a review by letter dated 27 January 2016, pointing out that he was in breach of the removal and exclusion order against him, and asking him to inform it of the date on which he had re-entered the State. The applicant replied, by letter dated 2 February 2016, that he had done so in October 2014, although that assertion has never been corroborated.
Through a Legal Aid Board Law Centre, the applicant made further representations in support of his review application, enclosing supporting documentation, on 3 March 2016. Under cover of a letter dated 10 May 2016, the INIS furnished those solicitors with a copy of a Garda report on the applicant's crime, dated 9 December 2009.
On 9 September 2016, the Minister affirmed the decision to make a removal order against the applicant, incorporating an exclusion period of ten years, based upon a further fifteen-page examination-of-file report and recommendation of the same date.
By letter of 12 September 2016, the Minister gave the applicant the notification of the review decision and of the reasons for it in writing that is required under Regulation 20(3)(b)(ii) of the Regulations. The applicant was informed that he was to present at the Garda National Immigration Bureau (“GNIB”) on 22 September 2016, so that arrangements could be made for his removal from the State.
The applicant was removed from the State a second time on 29 September 2016.
On 24 October 2016, the applicant applied for leave to seek judicial review of the review decision. That application was based upon a statement of grounds, dated 7 October 2016, supported by a “verifying affidavit”, not of the applicant but of the applicant's solicitor, sworn on the same date.
By Order made on 6 February 2017, Humphreys J granted the applicant leave to seek an order of certiorari quashing the review decision.
Counsel for the applicant acknowledges that the...
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Kant v The Minister for Justice and Equality; S.I. (Bangladesh) v The Minister for Justice and Equality
...Equality and Law Reform [2007] 3 I.R. 603. This point was recently applied by Keane J. in Mavlanous v. Minister for Justice and Equality [2019] IEHC 501 (Unreported, High Court, 10th July, 2019). I made the point in M.A. (Pakistan) v. Minister for Justice and Equality [2018] IEHC 397 [2018]......