Ramaabya and Another v MJE
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 20 May 2020 |
| Neutral Citation | [2020] IEHC 283 |
| Docket Number | [2019 No. 572 J.R.] |
| Court | High Court |
| Date | 20 May 2020 |
AND
(A MINOR SUING BY HER AUNT AND NEXT FRIEND MMONIEMONG RAMAABYA)
[2020] IEHC 283
Richard Humphreys J.
[2019 No. 572 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Deportation – Breach of fair procedures – Applicants seeking certiorari of the respondent’s decision to make deportation orders in respect of the applicants – Whether the manner and circumstances in which the respondent proceeded to make deportation orders in respect of the applicants was unlawful and breached fundamental principles of fair procedures and due process
Facts: The applicants, the Ramaabyas, were illegal immigrants who arrived in the State on the basis of a fraudulent story that they intended to stay with an Irish citizen for a short visit. When the fraud was uncovered, the respondent, the Minister for Justice and Equality, made deportation orders. The applicants challenged those orders as unlawful and unconstitutional. The specific grounds of challenge were as follows: (1) alleged breach of fair procedures; (2) alleged premature initiation of the deportation procedure; (3) allegation of generic consideration; (4) alleged failure to address the applicants’ circumstances; (5) alleged insufficient consideration given the minority of the second applicant; and (6) insurmountable obstacles “test”.
Held by the High Court (Humphreys J) that there was nothing of substance in the applicants’ challenge, but even if there had been, it would have dismissed the proceedings on a discretionary basis as sought at para. 22 of the statement of opposition. Humphreys J held that the applicants’ whole adventure in the State was cradled in deception and that it would demean the legal system if the court were to grant relief in respect of a procedure that would never have arisen if the applicants had acted honestly.
Humphreys J held that the proceedings would be dismissed.
Proceedings dismissed.
The applicants are illegal immigrants who arrived in the State on the basis of a fraudulent story that they intended to stay with an Irish citizen for a short visit. When the fraud was uncovered, the Minister made deportation orders. The applicants now challenge those orders as unlawful and unconstitutional. In any other context, such abuse of rights would be accepted unhesitatingly as disqualifying; but in the asylum and immigration context, such abuses are so widespread as to be almost tolerated resignedly. Such acceptance is not a legally sound approach and certainly doesn't contribute to an ordered society or a rational legal system. The attempt was even sought to be made on their behalf to assert rights based on the limited permission that was obtained by fraud. That is not an acceptable approach in any context.
The applicants are nationals of Botswana. The mother of the first-named applicant has lived in the State since 2009. The second-named applicant was born in November 2002 and is a niece of the first-named applicant's mother, Ms. Mmoniemong Ramaabya.
The applicants arrived in Dublin Airport on 14th November, 2018 and presented a letter of sponsorship from an Irish citizen, a Mr. Jer Hayden. That letter is worth quoting from in that it states that “As a family friend, I promised to invite them in (sic) Ireland when I visited Botswana. I am fulfilling my promise now. During their stay they will be under my responsibility and they will living (sic) in my house”.
That was a misrepresentation in that it is clear that there was no intention that the applicants would live with Mr. Hayden. In fact they were to be collected by Ms. Mmoniemong Ramaabya. On foot of this representation, a time-limited permission was given which expired on 2nd January, 2019. Mr. Hayden was later to tell INIS that he met Ms. Mmoniemong Ramaabya on a dating site, that they remained friends, that she had written the letter of sponsorship and posted it to him and that he had then signed it. Ms. Mmoniemong Ramaabya at the time didn't have a subsisting immigration permission, although she currently has a ‘Stamp 4S' permission.
On 14th January, 2019, the Minister issued a proposal to deport the applicants. Submissions were made on 13th February, 2019 invoking family rights and constitutional rights. Deportation orders were made on 22nd February, 2019 and notified on 25 thMarch, 2019. The applicants then consulted an entity apparently advertising itself as immigration consultants, THL Legal. That firm, who are not solicitors, purported to institute judicial review proceedings, record number 2019 No. 288 J.R. Once it transpired that those proceedings had been filed by an entity with no authority to do so, I struck out the proceedings on 31st July, 2019 as irregularly constituted, having previously ostensibly granted leave in May 2019 unaware of the difficulty.
The applicants then consulted solicitors and filed these proceedings on 2nd August, 2019 which are very similar in substance to the previous bogus proceedings. I granted leave on 14th October, 2019 and extended time in doing so, and very sensibly the respondent has not made any objection based on time. The statement of opposition was filed on 14th January, 2020.
The primary relief sought in the proceedings is certiorari of what is described as “the Minister's decision to make deportation orders in respect of the applicants”, although certiorari is directed to documents rather than decisions that are not embodied in documents. To be precise about it then, the words “decision to make” are inappropriate; certiorari in such a case should be directed to the deportation orders themselves rather than some form of amorphous incorporeal decision to make such orders that immediately preceded the written orders (perhaps when the official concerned picked up his or her pen), and likewise for any other written document.
I have now received helpful submissions from Mr. Gavin Keogh B.L. for the applicants and from Mr. John P. Gallagher B.L. for the respondent.
It may be helpful to put the present application in the context of some general considerations that apply in challenges of this type.
(i). The presumption of validity. Just as a post-Constitution statute enjoys a presumption of constitutionality, similarly a statutory or administrative decision must enjoy a presumption of validity until proven otherwise: see Mark de Blacam, Judicial Review, 3rd Ed. (Dublin, Bloomsbury 2017) p. 147: “The presumption of validity which attaches to public acts generally … is necessary in the interests of good order and administration”, citing In re Comhaltas Ceoltóirí Éireann (Unreported, High Court, Finlay P., 5th December, 1977), Campus Oil Ltd v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 and The State (Divito) v. Arklow Urban District Council [1986] I.L.R.M. 123.
(ii). There is a presumption that all material was considered if the decision says so, as stated by Hardiman J. in G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, [2002] 1 I.L.R.M. 401. Where a decision states that all material has been considered, there is an onus on an applicant to prove otherwise before he or she can succeed in any challenge based on a lack of due consideration: see also O.M.A.(Sierra Leone) v. The Refugee Appeals Tribunal [2018] IEHC 370, [2018] 6 JIC 1206 (Unreported, High Court, 12th June, 2018) at para. 8.
(iii). The State has a wide discretion in immigration matters. In In re Illegal Immigrants (Trafficking) Bill 1999 [2000] IESC 19, [2000] 2 I.R. 360 at paras. 82 and 83, the Supreme Court cited the statement of Costello J. in Pok Sun Shum v. Ireland [1986] I.L.R.M. 593 at 599 that “[The] State … must have very wide powers in the interest of the common good to control aliens, their entry into the state, their departure and their activities within the State”; saying that this “reflects an inherent element of State sovereignty over national territory long recognised in both domestic and international law. For this reason, in the sphere of immigration, its restriction or regulation, the non-national or alien constitutes a discrete category of persons whose entry, presence and expulsion from the State may be the subject of legislative and administrative measures which would not, and in many of its aspects, could not, be applied to its citizens”.
(iv). The normal system of applying for permission to be present in the State is from outside the jurisdiction. As put by Hardiman J. in F.P. v. Minister for Justice, Equality and Law Reform [2002] 1 I.R. 164 at 174, “… each of the applicants was, at the time of making representations, a person without title to remain in the State. This fact constrains the nature of the...
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