T.(P.O.) v Minister for Justice, Equality & Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 19 November 2008
• Neutral Citation: [2008] IEHC 361
• Court: High Court
• Date: 19 November 2008

[2008] IEHC 361

THE HIGH COURT

[No. 1621 JR/2007]

T (P O) v Min for Justice

BETWEEN

P. O. T.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

REFUGEE ACT 1996 S18(1)

REFUGEE ACT 1996 S18(2)

REFUGEE ACT 1996 S18(4)

REFUGEE ACT 1996 S18(3)(B)

NGUEDJDO v REFUGEE APPLICATIONS COMMISSIONER UNREP HIGH WHITE 23.7.2003 (EX-TEMPORE)

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150

BODE v MIN FOR JUSTICE UNREP SUPREME 20.12.2007 2007/6/1033

UNIVERSAL DECLARATION OF HUMAN RIGHTS ART 16

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

REFUGEE ACT 1996 S18

EC DIR 2003/86/EC RECITAL 4

AWE v MIN FOR JUSTICE UNREP FINLAY-GEOGHEGAN 24.1.2006 2006/4/743 2006 IEHC 6

IATAN & ORS v CMSR OF AN GARDA SIOCHANA & ORS UNREP CLARKE 2.2.2006 2006/29/6289 2006 IEHC 30

M (K) & G (D) v MIN FOR JUSTICE UNREP EDWARDS 17.7.2007 2007/38/7754 2007 IEHC 234

IMMIGRATION

Reunification

Certiorari - Ministerial refusal to grant entry and residence to family of refugee - Finding that birth certificates invalid - No mention of child during asylum process - Whether breach of fair procedures - Failure to raise concerns with applicant - Absence of opportunity to make representations - Urgency and importance of family reunification - Fundamental importance of family unit - Integration of third country nationals - Delay in processing of application - Right to make fresh application inadequate - Requirements of constitutional justice - Opportunity to explain inconsistencies or dispel doubts - Nguedijdo v Refugee Appeals Commissioner (Unrep, White J, 23/7/2003), Idiakheua v Minister for Justice (Unrep, Clarke J, 10/5/2005), Awe v Minister for Justice [2006] IEHC 5 (Unrep, Finlay Geoghegan J, 24/1/2006), Iatan v Minister for Justice (Unrep, Feeney J, 18/4/2007) and M(K) v Minister for Justice [2007] IEHC 234 (Unrep, Edwards J, 17/7/2007) considered - Bode v Minster for Justice [2007] IESC 62 (Unrep, SC, 20/12/2007) distinguished - Refugee Act 1996 (No 17), s 18 - Universal Declaration of Human Rights, article 16 - European Convention on Human Rights, article 8 - Certiorari granted (2007/1621JR - Hedigan J - 19/11/2008) [2008] IEHC 361

T(P) v Minister for Justice, Equality and Law Reform

Facts: the applicant had been granted asylum and his application for family reunification in respect of his minor children was refused by the respondent after a delay of four years on the basis that there was a material discrepancy between the information provided by the applicant in his prior application for asylum and his subsequent application for family reunification. The applicant applied to quash that refusal on the grounds that the respondent had breached the requirements of constitutional justice in not communicating those concerns and affording him an opportunity to address them prior to deciding to refuse the application.

Held by Mr Justice Hedigan in granting the reliefs sought:

1. That the matter of family reunification was a matter of importance given that the fundamental importance of the family unit and its right to be protected was enshrined in the Constitution and further protected by Article 8 of the European Convention on Human Rights.

2. That, where the respondent was unsatisfied as to the validity of documentation submitted in support of an application for family reunification, in circumstances where that dissatisfaction had the potential to impact on the respondent’s final decision, constitutional justice required that there was an obligation on the respondent to enter into communication with the applicant and afford him an opportunity to explain inconsistencies or dispel doubts in that regard.

3. That the requirements of constitutional justice dictated that an applicant seeking administrative relief was entitled to a decision within a reasonable time. Bearing that in mind, the fact that it was open to the applicant to make a fresh application for family reunification did not provide an answer to the applicant’s difficulties.

Reporter: P.C.

1 Mr. Justice Hedigandelivered on the 19th day of November, 2008.

2 1. This is an application for judicial review of the decision of the Minister for Justice, Equality and Law Reform ("the Minister"), dated 29 ^th August, 2007, to refuse to grant permission to the applicant for members of his family to enter and reside in the State. The applicant is seeking an order of certiorari in respect of the Minister's decision and a declaration that the said decision is unlawful.

Background

3 2. The applicant, who is a national of Ghana, arrived in the State on 25 ^th September, 2001 and was granted refugee status on 26 ^th March, 2003. Throughout his asylum application, he stated that he was married to M.O. and had three children: H. (born in 1991), Ma. (born in 1987), and G. (born in 1985).

4 3. In June, 2003, the applicant made an application for visas for M., H., Ma., G. and for a fourth child, F. (born in 1988), stating that the intended purpose of the visas was family reunification. With a view to corroborating his relationship with his wife and children, he submitted a marriage certificate, birth certificates, passports and letters from the children's schools. The respondent points out that in the visaapplication, the applicant stated that H. was born in 1992, whereas he had previously stated that she was born in 1991, but I do not think that anything turns on this in the present case. Perhaps more noteworthy is that by the time the visa application was made, G. was no longer under 18 years of age.

5 4. By letter dated 7 ^th July, 2003, the Minister caused the visa applications to be referred to the Refugee Applications Commissioner (RAC), in compliance with section 18(1) of the Refugee Act 1996. The RAC provided the applicant with a questionnaire on 9 ^th July, 2003, which he duly completed, thereby officially applying for permission for his family members to enter and reside in the State (i.e. family reunification). On 10 ^th November, 2003, the RAC submitted a report to the Minister, in compliance with s. 18(2) of the Act of 1996. The report noted that the applicant had submitted original documentation in respect of his marriage and his relationship with his children. It also noted that there was no evidence that G. was dependent upon the applicant or that he was suffering from any mental or physical disability. It was noted that F. had not been mentioned in the asylum application and that the applicant had not seen his family since 1994.

6 5. The RAC report also noted a disparity with the documentation submitted in support of the family reunification application when compared to the applicant's asylum application: the marriage certificate submitted with the family reunification application was signed by his father, S.O., in 2003. The applicant had stated in his asylum application that his father, S.O., died in 1976 and his brother, of the same name, died in 1992. Some 16 months after receiving the RAC report, the Minister informed the applicant, by letter dated March 21 ^st 2005, that he was considering revoking the grant of refugee status on the basis of that disparity. The applicant replied promptly to the Minister, stating that it was not his birth-father but his foster-father, also named S.O., who had signed the marriage certificate; thereafter, he submitted death certificates in respect of his father and brother, bearing the dates 1976 and 1992. On 1 ^st November, 2006, the Minister informed the applicant that he had accepted the explanation given and no longer intended to revoke his refugee status. The Minister made no reference to family...