Wang (A Minor)v Minister for Justice, Equality and Law Reform No. 2

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 05 December 2017
• Neutral Citation: [2017] IEHC 751
• Docket Number: [2016 No. 490 JR]
• Date: 05 December 2017

BETWEEN

JACKSON YAO WANG (A MINOR SUIING THROUGH HIS MOTHER AND NEXT FRIEND MING QIN LIN)

JESSICA XIN WANG (A MINOR SUING THROUGH HER MOTHER AND NEXT FRIEND MING QIN LIN)

CHANG HUI WANG

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

(No.2)

[2017] IEHC 751

[2016 No. 490 JR]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality - Leave to appeal to the Court of Appeal - Points of law of exceptional public importance - Issuance of deportation order - Departure from established principles of judicial review

Facts: The applicants sought leave to appeal to the Court of Appeal pursuant to s.5 of the Illegal Immigrants (Trafficking) Act. 2000. The applicants alleged that the substantive judgment contained points of law of exceptional public importance and thus, the Court should grant leave to the applicants to the Court of Appeal.

Mr. Justice Richard Humphreys refused to grant leave to appeal. The Court held that the questions formulated by the applicants in relation to taking into account the content of an affidavit by the Court and consideration of family rights was without any basis and did not involve any point of law of exceptional public importance.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 5th day of December, 2017

1 In Wang v. Minister for Justice and Equality (No. 1) [2017] IEHC 652 I dismissed the application for certiorari of a deportation order against the third named applicant. Mr. Colman FitzGerald S.C. (with Mr. Gavin Keogh B.L.) for the applicants now seeks leave to appeal to the Court of Appeal pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 and I have heard helpful submissions from him and from Mr. David Conlan Smyth S.C. (with Ms. Natalie McDonnell B.L.) for the respondents.

2 I have had regard to the law in relation to leave to appeal to the Court of Appeal as set out in Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250, Kenny v. An Bord Pleanála [2002] 1 I.L.R.M. 68, [2001] 1 I.R. 704 and Arklow Holidays v. An Bord Pleanála [2006] IEHC 102 [2007] 4 I.R. 112 [2007] 1 I.L.R.M. 125 and to the additional points I noted in S.A. v. Minister for Justice and Equality (No. 2) [2016] IEHC 646 [2016] 11 JIC 1404. I have also had regard to the comments of Murray C.J. in Minister for Justice and Equality v. Tokarski [2012] IESC 61. I previously attempted to draw together the strands of the jurisprudence on leave to appeal in thirteen criteria, which I set out in Y.Y. v. Minister for Justice and Equality (No. 2) [2017] IEHC 185, [2017] 3 JIC 2405 at para. 72.

The First Question

3 The first question is whether I was correct to find that the deportation order was valid on the basis that the applicants had not established that the children could return to China notwithstanding that the Minister had not reached the decision on that basis. There is a sort of undertone in the question that I patched up the decision in some way, or they gave new and better reasons for the decision that the Minister had not. That misunderstands the legal process. The issue before the Minister was whether to make a deportation order. The issue before me was whether to quash that deportation order - that is a clearly different question and different issues arise. The failure of an applicant in the course of proceedings to adduce evidence that the children are unable to reside in China was a reason not to quash the order. By definition that question could not have arisen in that form before the Minister.

4 The question alleged to be of exceptional public importance under this heading arises out of paras. 10 and 11 of the judgment, which essentially contained a statement that the applicants failed to adduce evidence necessary to sustain their point. But it has nothing to do with manufacturing fresh reasons for the Minister's decision which were not in the mind of the Minister.

5 In any event, even if the question of law...