Mooge v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 04 November 2022
• Neutral Citation: [2022] IEHC 611
• Court: High Court
• Docket Number: [Record No.: 2021/1100 JR]

Between:

S.M. and T.A.

Applicants

and

The Minister for Justice

Respondent

[2022] IEHC 611

[Record No.: 2021/1100 JR]

THE HIGH COURT

JUDICIAL REVIEW

Visa application – Family reunification – Findings of fact – Applicants challenging a decision refusing an appeal against the negative determination of the applicants’ application for a D-visa – Whether the decision was based on a flawed process with regard to findings of fact

Facts: The applicants, Ms Mooge and Mr Aden, applied to the High Court challenging a decision communicated by letter dated the 12th of October, 2021, refusing an appeal against the negative determination of the applicants’ application for a D-visa to permit the second applicant entry to the State for the purposes of family reunification with his Irish Citizen spouse. The decision was challenged as based on a flawed process with regard to findings of fact and a failure to properly consider and weigh the family rights, including the right to cohabit, of the applicants.

Held by Phelan J that the financial findings which were made absent due process did not affect the overall integrity of the decision, given the nature of the other grounds identified for the decision to refuse which she considered to be sufficiently weighty in themselves and unassailable. The evidential gaps identified during the decision-making process were such that Phelan J was satisfied that it was almost inevitable that the decision to refuse would have been made on the grounds of the gaps and issues identified, even if there were no concerns in relation to finances and full regard was had to the explanations given. Further, Phelan J did not consider that the potential longer-term consequences of the said adverse financial findings unfairly made were such as to warrant intervention by her on the facts and circumstances of the case simply because visa refusals require to be disclosed and remained part of the applicants’ record. Phelan J was also satisfied that the respondent, the Minister for Justice, correctly identified and applied the ratio of Gorry v Minister for Justice and Equality [2020] IESC 55 in her assessment of the circumstances of the applicants’ case, subject only to the caveat that the proportionality assessment was itself undermined by the flawed process affecting the financial conclusions arrived at which said conclusions potentially impacted on the respondent’s consideration of the State’s economic interests in the conduct of a proportionality assessment.

Phelan J held that that the appropriate course of action for the applicants in this case was to resubmit their application with further and up to date supporting documentation. Phelan J noted that significant new information which was clearly material to the consideration of the application was relied upon in the proceedings but was not properly before the respondent when the application was considered and refused. Phelan J held that it should be possible for the applicants to address concerns repeatedly identified not least the failure to submit a full copy of the first applicant’s passport or any evidence as to her mother’s attendance as proxy at a wedding ceremony in Ethiopia in June, 2018. In light of her conclusions, Phelan J dismissed the proceedings.

Proceedings dismissed.

JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 4 ^th day of November, 2022

INTRODUCTION

1 . In these proceedings the Applicants challenge a decision communicated by letter dated the 12 ^th of October, 2021, refusing an appeal against the negative determination of the Applicants' application for a D-visa to permit the Second Applicant entry to the State for the purposes of family reunification with his Irish Citizen spouse. The decision is challenged as based on a flawed process with regard to findings of fact and a failure to properly consider and weigh the family rights, including the right to cohabit, of the Applicants.

BACKGROUND

2 . The First Applicant is a dual national of Ireland and Somalia. She arrived in the State when she was three years old (she is now 28 years old) with her mother and siblings, through the Family Reunification process, her father having previously been granted asylum. The First Applicant was granted Irish citizenship in 2001. She is a qualified health care professional and works full time as such in the State having completed her Master's degree in 2019.

3 . The Second Applicant is Ethiopian. He lives with his family in Ethiopia in Jigjiga, near the Somali border. The Second Applicant has a primary degree in procurement and logistics and more than six years' experience of working in that area with NGOs in Ethiopia.

4 . The Applicants claim that they first met online in November 2017. It is claimed that their families were known to each other and they belong to the same tribe. A long-distance relationship developed and it is claimed that in May 2018, they notified their families that they wished to marry and arrangements were made with their families' approval and assistance. It is claimed that the First Applicant could not attend the Nikkah-Islamic wedding (on the 24 ^th of June, 2018) as she was required to re-sit important university examinations. In her culture and religion, attendance by the bride at the wedding is not necessary. It is claimed that her mother attended the Nikkah-Islamic wedding which took place in June, 2018 as her representative, the First Applicant's father seemingly having confirmed his consent to the marriage as required by Nikkah-Islamic law.

5 . The Applicants claim to have first met in person in July 2019 in Ethiopia, a little over a year after their wedding. The “ White Wedding Ceremony” took place with the Applicants and their families in Jigjiga in August, 2019. The Applicants then lived together for a period of four months before the First Applicant returned home to Ireland. She claims to have returned home because she encountered difficulties securing employment in Ethiopia and the couple had decided to make their home in Ireland instead.

6 . The Applicants claim to have maintained their relationship through telephone calls, electronic means such as Facebook and emails and visits by the First Applicant to the Second Applicant in Ethiopia.

7 . Delayed by the COVID-19 Pandemic, in or around December, 2020 (approximately one year after her return to Ireland from Ethiopia), the Applicants applied for a D-visa to permit entry to the State by the Second Applicant. By way of letter dated the 15 ^th of March, 2021, this application was refused. The Applicants sought to appeal the said refusal by letter dated the 11 ^th of May, 2021 with supporting documentation. The appeal was also refused by way of letter dated the 12 ^th of October, 2021. It is this refusal that is impugned in the within proceedings.

DECISION MAKING PROCESS AND THE IMPUGNED DECISION

8 . As stated above, by decision dated the 15 ^th of March, 2021, the Irish Naturalisation and Immigration Service (‘INIS’) who were working out of the Irish Embassy in Addis Ababa in Ethiopia, refused the “D” reside visa which would have permitted the Second Applicant to enter the State to join the First Applicant.

9 . There were five separate headings set out in the refusal letter under which the visa was refused as follows:

FM – No automatic right for non-EEA nationals who are family members of Irish citizens to migrate on a long-term basis to Ireland.

ID – Referring to the quality of documents. It was found that the marriage certificate submitted was in the name of ‘S [Name removed]’ and noted the date of marriage as the 24 ^th of June, 2018. The First Applicant changed her name from ‘Z [name removed]’ to ‘S [name removed’] on the 15 ^th of March, 2019 — which is a date after the marriage took place.

ID – Referring to the insufficiency of documentation submitted in support of the application. In this regard, the following issues / matters were indicated as not supported adequately or at all:

• • That the First Applicant was in the home country of the Second Applicant at the time of marriage.

• • The extent to which family life exists between the First and Second Applicant.

• • The relationship history.

• • Ongoing routine communication both prior to and since marriage.

• • Face to face meetings prior to marriage.

• • Visits by the First Applicant to the Second Applicant's home country prior to and since marriage.

• • No full copy Irish passport from the First Applicant was submitted.

• • Why the First Applicant did not travel to Ethiopia for the marriage ceremony.

• • Accommodation details of First Applicant.

INCO – this refers to inconsistencies. There was no evidence to suggest that the First Applicant's mother was in Ethiopia at the relevant time and represented her. Moreover, it was noted by the visa officer that the marriage was not registered until the 16 ^th of March, 2020.

The birth certificate of the Second Applicant was not registered until the 16 ^th of March, 2020 also despite him being born on the 12 ^th of April, 1991 and that there was no explanation for this. It was also noted that the registration of the Second Applicant's birth and the registration of the marriage both took place on the 16 ^th of March, 2020.

RH — this refers to relationship history. The visa officer refers to the fact that section 5.3 of the Policy Document on Non-EEA Family Reunification (‘the Policy Document’) places the onus of proof as to the genuineness of the family relationship with the First and Second Applicants and that same had not been sufficiently addressed in the application. In particular, it was stated “ for immigration purposes, a relationship must include a number of face to face meeting (excluding webcam) between the parties”. The decision goes on to highlight that there was nothing submitted to suggest that the First and Second Applicant met face to face prior to the First...