Mukovska v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 19 November 2018
• Neutral Citation: [2018] IEHC 641
• Docket Number: 2017 No. 754 JR
• Court: High Court
• Date: 19 November 2018

Between:

YULIVYA MUKOVSKA

APPLICANT

– and –

MINISTER FOR JUSTICE & EQUALITY & MINISTER FOR FOREIGN AFFAIRS

RESPONDENTS

[2018] IEHC 641

Barrett J.

2017 No. 754 JR

THE HIGH COURT

Student visa – Constitutional fair procedures – Legitimate expectation – Applicant seeking student visa – Whether the respondents acted unreasonably or in breach of constitutional fair procedures in not giving any/adequate reasons

Facts: The applicant, Ms Mukovska, a Ukrainian, claimed that for, inter alia, business reasons, she wanted to study English in Dublin. On 11.04.2017, she applied for a student visa. That application was unsuccessful. By decision of 13.07.2017, the applicant's appeal also failed. The applicant claimed that: (a) the respondents, the Minister for Justice and Equality and the Minister for Foreign Affairs, acted unreasonably or in breach of constitutional fair procedures in not giving any/adequate reasons; (b) they acted in breach of constitutional fair procedures in rejecting supporting documents without expressly referencing same in the refusal; (c) they acted unreasonably as there was no logical connection between the reasons and a legitimate consideration of her application; (d) they breached the applicant's legitimate expectation by delegating immigration decision-making to the second respondent's officers; (e)(i) there was a risk of objective bias if an application/appeal were decided by the same small group of individuals; and (e)(ii) that risk was aggravated by virtue of the processing being done in Moscow, given the antagonism extant between Ukraine and Russia.

Held by the High Court (Barrett J) that, regarding items (a)-(c), the exercise of ministerial discretion in immigration matters may be judicially reviewed; however, decision-makers exercising executive power in immigration matters enjoy wide discretion (Olakunori v Minister for Justice, Equality and Law Reform [2016] IEHC 473). Barrett J held that the decision-maker was entitled to reach its conclusion on the evidence at hand. Barrett J held that the Moscow visa office was staffed by INIS officials working for the first respondent (who did therefore consider the applicant's application/appeal) so there was no substance to item (d), not that the court saw any basis for the claimed legitimate expectation. Regarding item (e), Barrett J held that there was no evidence of objective bias.

Barrett J held that the reliefs sought by the applicant would be respectfully refused.

Reliefs refused.

JUDGMENT of Mr Justice Max Barrett delivered on 19th November, 2018.

1 The applicant is, it seems, a prosperous Ukrainian lady. She owns a building fit-out business in Ukraine. She owns properties in Ukraine. She has previously holidayed abroad and returned home to Ukraine. She claims that for, inter alia, business reasons, she wants to study English in Dublin. On 11.04.2017, she applied for a student visa to come here. That application was unsuccessful. By decision of 13.07.2017, the applicant's appeal also failed, the following reasons being given: '[1] Need to undertake...course in this State not demonstrated or warranted...[2] The applicant may overstay...[3] [T] he visa sought is for a specific purpose and duration:- the applicant has not satisfied the visa officer that such conditions should be observed.' Although application was made to the Irish embassy in Kiev, processing of the application/appeal happened at the Irish embassy in Moscow....