Yuliya Mukovska v The Minister for Justice

• Jurisdiction: Ireland
• Judge: Mr Justice Tony Hunt
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] IECA 340
• Court: Court of Appeal (Ireland)
• Docket Number: Record No.: 2018/501

Between:

Yuliya Mukovska

Appellant

and

The Minister for Justice

and

The Minister for Foreign Affairs

Respondents

[2021] IECA 340

Donnelly J.

Ní Raifeartaigh J.

Hunt J.

Record No.: 2018/501

THE COURT OF APPEAL

Judicial review – Study visa – Irrationality – Appellant seeking an order of certiorari by way of an application for judicial review against a decision of the first respondent refusing her application for a study visa – Whether reasons 2 or 3 of the contested decision were unreasonable and irrational

Facts: The appellant, Ms Mukovska, obtained leave from the High Court on 9 October 2017 to apply for an order of certiorari by way of an application for judicial review against a decision of the first respondent, the Minister for Justice, refusing her application for a study visa. The High Court refused her application by judgment of 19 November 2018 and perfected order of 4 December 2018. The appellant appealed to the Court of Appeal. The grounds of appeal were set out in the Notice of Appeal as follows: (1) the trial judge erred in law and/or in fact in determining that, while the applicant was entitled to reasons for a refusal, reason 1 of the contested decision (the “CP” reason) was sufficient and reasonable in light of the documentation and information submitted by the applicant in support of her application; (2) the trial judge erred in finding that it was not necessary for the court to consider reasons 2 or 3 of the contested decision (the “OC” reasons); (3) in respect of reasons 2 and 3 of the contested decision, the respondent acted unreasonably and/or in breach of constitutional fair procedures; (4) further or in the alternative, those reasons also appeared unreasonable or irrational in light of the considerable supporting documentation submitted by the applicant; and (5) the trial judge erred in law and/or in fact in applying a subjective test for bias rather than an objective test as pleaded by the applicant.

Held by Hunt J that this appeal was not devoid of purpose or effect such that it was rendered moot. Hunt J held that the refusal of a visa application is a significant and consequential step. Hunt J held that as such letters will often be considered in future by other immigration authorities, with possible adverse consequences, it is necessary that there is reasonable accuracy and clarity in such letters. Hunt J held that all of the reasons given in this case were inadequate for the purposes of judicial review and/or for any further application for a visa by the appellant. Hunt J held that the “OC” reasons were unreasonable and irrational, having regard to the thrust of the evidence and material submitted, the entirely inappropriate reliance on non-possession of a departure stamp to justify those conclusions, and the suggestion that a risk of overstay or non-compliance necessarily followed from a conclusion that a visa applicant failed to meet a narrow conception of “need” in their application. Hunt J held that as the decision was said by the Minister to be one that must be taken as a whole, it followed that all of the constituent parts and the entire appeal decision must be quashed.

Hunt J proposed an order allowing the appeal, setting aside the judgment and order of the High Court, and granting certiorari by way of judicial review quashing the decision of the Appeals Officer of 13 July 2017. Hunt J proposed an order vacating the security for costs lodged in connection with the appeal and awarding the appellant the costs of the High Court proceedings and of the appeal against the first respondent, to be assessed in default of agreement by a legal costs adjudicator.

Appeal allowed.

UNAPPROVED

JUDGMENT of Mr Justice Tony Hunt delivered on the 21 ^st December, 2021

1 . The appellant obtained leave from the High Court on 9 October 2017 to apply for an order of certiorari by way of an application for judicial review against a decision of the first respondent (“the Minister”) refusing her application for a study visa. The High Court refused her application by judgment of 19 November 2018 and perfected order of 4 December 2018.

Factual matters

2 . The grounding affidavit sworn for the High Court application establishes that the appellant is a Ukrainian national, then residing at Zaporizhzhya, Ukraine. As of October 2017, she carried on what she described as a successful business in Ukraine supplying fabrics and soft furnishings for high-end home or commercial fit-outs. In that context, she stated that she dealt with customers and suppliers in the English language, that her business required her to travel extensively to a variety of other countries and that she studied English as a higher subject at university. She added that she retained a desire to improve her fluency for both business and social purposes, and that she had previously considered taking an English course in London.

3 . She visited Ireland in 2016 and stated that, while here, she noticed that English colleges in Dublin were offering courses to foreign nationals which she described as “ competitively priced”. She located a suitable college and discovered that the course duration that best suited her desire for sabbaticals also necessitated an application to the Minister for a study visa. She described her personal circumstances at that time. She owned several properties in Ukraine, and apart from her business there, she also had a daughter pursuing third-level nursing studies.

4 . She enrolled in and paid for an English language course at a school in Ireland. Because the selected course was over three months in duration, she applied on 11 April 2017 to the Minister for a study visa through the Irish Embassy at Kiev. That embassy transmitted the application to the embassy at Moscow for processing. The application was refused by letter from the Irish Naturalisation and Immigration Service (INIS), based at the Visa Section of the Moscow Embassy. The letter stated that the reasons for refusal were:

“CP: — Need to undertake the course in this State not demonstrated or warranted

F: — Finances shown to have been deemed insufficient

F: — Finances: — evidence provided is deemed insufficient or incomplete

OC: — Observe the conditions of the visa — the visa sought is for a specific purpose and duration:- the applicant has not satisfied the visa officer that such conditions would be observed.”

The letter informed the appellant that this decision could be appealed within two months of the date of the letter, that such an appeal was required to be in writing, “ fully addressing all the reasons for refusal to the Visa Appeals Officer to the address shown”, and that all additional supporting documents should be submitted with the appeal.

5 . The appellant appealed the refusal by letter dated 4 May 2017. In this letter, she attempted to address in some detail each of the reasons for refusal set out in the first-instance decision. She submitted 20 documents in support of the appeal. The letter of appeal was composed on her behalf by her solicitor in Dublin. Mr Cosgrove addressed each of the reasons for refusal in sequence. The “CP” or need reason was addressed by a narrative incorporating many of the facts set out above. The finance reasons were addressed by submission of various official documents concerning her main residence, an apartment, a plot of land and country home, the proposed purchase of a commercial property (all at Zaporizhzhya), by statements relating to three bank accounts in Ukraine and one at an AIB branch at Dundrum, Dublin 14, and by a certificate from the State Fiscal Service of Ukraine confirming her annual returns of business income. These documents were accompanied by a narrative in the appeal letter concerning her banking affairs. The AIB account was opened in November 2016, when she was lawfully present in Ireland as a visitor. The statement shows several lodgements between 7 and 18 November 2016.

6 . The “OC” or non-observation of conditions refusal was addressed by submission of a copy of her passport, which contained stamps relating extensive previous foreign travel. She asserted that she had always followed immigration regulations in respect of these journeys. Her letter also referred to the fact that she received a “C” (tourism) visitor visa from Ireland on 16 September 2016 which was valid for 90 days. As noted above, she appellant travelled here on that visa. Her appeal letter states that her visit ended on 20 November 2016. She referred to the copy of her passport. This clearly shows that the tourism visa was valid from 10 September to 10 December 2016, and a stamp admitting her to this State on 16 September 2016. The passport does not contain a departure stamp evidencing when she left the State. To cover that aspect of the matter, she submitted a boarding pass from Turkish Airlines for a flight from Dublin to Istanbul on 20 November 2016 (2 days after the last substantive activity on her AIB account). The boarding pass is for flight TK 1978 in the passenger name “Mukovska Julia”. She also submitted personal documentation evidencing details relating to her adult daughter.

7 . By letter of 13 July 2017, the Moscow visa section informed the appellant that her appeal had been examined by an Appeals Officer from INIS, and that the appeal had not been successful. This letter recites that in re-examining the application the Appeals Officer had taken all documentation and information provided taken into consideration and had decided that the original decision to refuse the visa should be upheld. The reasons for refusal of the appeal were stated as follows:

“CP:- Need to undertake the course in this State not demonstrated or warranted.

OC:- Condition — the applicant may overstay following proposed visit.

OC:- Observe the conditions of the visa — the visa sought is for a specific purpose and duration: — the applicant has not satisfied the...