Wang (A Minor)v Minister for Justice, Equality and Law Reform No. 2
|Mr. Justice Richard Humphreys
|05 December 2017
| IEHC 751
|05 December 2017
|[2016 No. 490 JR]
 IEHC 751
[2016 No. 490 JR]
THE HIGH COURT
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.
In 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.
I have had regard to the law in relation to leave to appeal to the Court of Appeal as set out in An Bord Pleanála, An Bord Pleanála, and An Bord Pleanála and to the additional points I noted in . I have also had regard to the comments of Murray C.J. in . I previously attempted to draw together the strands of the jurisprudence on leave to appeal in thirteen criteria, which I set out in , .
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.
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.
In any event, even if the question of law...
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