Z.A. v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr Justice David Keane
• Judgment Date: 30 May 2019
• Neutral Citation: [2019] IEHC 376
• Court: High Court
• Docket Number: [2017 No. 444 J.R.]
• Date: 30 May 2019

BETWEEN

Z.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

[2019] IEHC 376

Keane J.

[2017 No. 444 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Deportation order – Proportionality – Applicant seeking judicial review of a deportation order made against him by the respondent – Whether the respondent’s decision was unreasonable or irrational

Facts: The applicant sought judicial review of a deportation order made against him by the respondent, the Minister for Justice and Equality, on 21 April 2017, under s. 3(1) of the Immigration Act 1999, and furnished to him under cover of a letter dated 4 May 2017. In written submissions made on his behalf, the applicant contended: (i) that the Minister’s decision was unreasonable or irrational, both in general and, in particular, because the applicant’s deportation was an interference with his private and family life disproportionate to the societal interests and rights of others that were invoked to justify it as necessary; (ii) that the Minister took into account irrelevant considerations and failed to take into account relevant ones; (iii) that the Minister’s decision was based on a fundamental error of fact (although this was not a ground upon which leave to apply for judicial review was sought or granted); (iv) that the Minister’s decision was made in breach of the applicant’s entitlement to natural and constitutional justice and fair procedures; and (v) that the decision was discriminatory. In his statement of ground, the applicant also asserted that the decision was invalid because the procedure under the 1999 Act by which it was made breached the requirements of Article 8 of the European Convention on Human Rights (ECHR) by failing to provide an independent appeal. Although that ground, while pleaded, was not addressed in the applicant’s written submissions, it did appear that counsel for the applicant briefly flirted with it in the course of oral argument.

Held by the High Court (Keane J) that the applicant had failed to establish any flaw or failure in the way in which the Minister approached the necessary balancing exercise that was capable of supporting the conclusion that the decision was unreasonable or irrational. Keane J held that none of the issues raised by the applicant were sufficient to establish that the Minister improperly ignored any relevant consideration or wrongly took any irrelevant consideration into account. Keane J did not accept that the Minister was under any misapprehension concerning the nature of the sentence that the Circuit Criminal Court had imposed on the applicant. Keane J held that, even if the Minister’s consideration of the applicant’s conduct had extended beyond that involved in the three specific offences to which he had pleaded guilty to encompass all of the misconduct alleged against him in the injured party’s statement and recorded in the Garda National Immigration Bureau report, the applicant would still have failed to satisfy him that on the scant evidence he had provided that such a course would have amounted to a breach of his entitlement to natural and constitutional justice and fair procedures, much less that it would have amounted to a breach of the separation of powers required under the Constitution. Keane J held that, while he accepted that there had been a difference of treatment between the applicant and those other persons in the result of the application of the immigration law of the State to each, he could not be satisfied that it demonstrated any invidious discrimination between them. Keane J held that there was an effective remedy, as required under Article 13 of the ECHR, for any person alleging a breach of the right to respect for his private and family life under Article 8 of the ECHR in the context of the deportation process under the 1999 Act.

Keane J held that the application for judicial review would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 30th May 2019

Introduction

1 This is the judicial review of a deportation order made against the applicant by the Minister for Justice and Equality (“the Minister”) on 21 April 2017, under s. 3(1) of the Immigration Act 1999, as amended (“the Act of 1999”), and furnished to him under cover of a letter dated 4 May 2017.

Background

2 The applicant is a male Nigerian national who was born in 1994. He entered the State in 2001, when he was 7 years old. His mother and siblings are Irish citizens by naturalisation and, in the case of one of his siblings, by birth. His father is deceased. He attended primary school and secondary school in the State and has attained some post Leaving Certificate educational qualifications. He currently plays sport at a very high level but cannot do so professionally because he does not have permission to work in the State. He is single.

3 Until he turned sixteen in 2010, the applicant had leave to remain in the State as a dependant of his mother. Thereafter, he received permission to remain in his own right for successive periods until his solicitors sought the further renewal of that permission on his behalf by letter, dated 25 June 2014; a request acknowledged on behalf of the Minister by letter, dated 11 July 2014.

4 However, on 31 October 2014, the applicant appeared for sentence before Dublin Circuit Criminal Court on a plea of guilty to three separate charges comprising two counts of attempted defilement of a child under the age of 17 years, contrary to s. 3(2) of the Criminal Law (Sexual Offences) Act 2006, and one count of sexual assault, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. The convictions relate to incidents that occurred on two separate dates in March 2010 involving the same injured party. The applicant was sentenced to a concurrent term of two years” imprisonment on each of those counts, but those sentences were each suspended for a period of three years on condition of good behaviour.

5 As the applicant acknowledges in an affidavit that he swore in these proceedings on 27 October 2017, he was one of six persons convicted of sexual offences arising out of various incidents involving the same 14-year-old complainant that occurred in February and March 2010, when the applicant was 16 years old.

6 While the applicant has no entitlement per se to anonymity in these proceedings, the earlier criminal prosecution would have attracted the reporting restrictions imposed under s. 252 of the Children Act 2001 to protect the entitlement to anonymity of the complainant child. Similarly, because it concerned a “sexual assault offence”, the anonymity of the child complainant in the earlier prosecution was also expressly protected under s. 7 of the Criminal Law (Rape) Act 1981, as amended. Lest the identification of the applicant in this case should lead indirectly to the identification of the injured party in that case, in breach of either of those provisions, I have substituted initials for the name of the applicant in the title of these proceedings for the purpose of the present judgment.

7 On 17 November 2014, a detective superintendent in the Garda National Immigration Bureau (“GNIB”) wrote to the Irish Naturalisation and Immigration Service (“INIS”), setting out the circumstances of the offences committed by those six persons (including the applicant), each of whom is a non-EU national, to assist the Minister in considering whether to grant a further residence permission, revoke an existing one, or propose the making of a deportation order, as the case may be (“the GNIB report”).

8 On 26 February 2015, the INIS wrote to the applicant on behalf of the Minister, notifying him, in accordance with the requirements of s. 3(3)(a) of the Immigration Act 1999, as amended (“the Act of 1999”), of the Minister's proposal to make a deportation order against him.

9 On the following day, 27 February 2015, the applicant was convicted in the Dublin Metropolitan District Court of the offence of driving without insurance on 15 July 2014 and that of driving on a motorway on a provisional, rather than full, driving licence on the same date. The applicant was fined €300 on the first charge and the second was taken into consideration.

10 Through his solicitors, the applicant made representations to the Minister against his deportation, forwarding a range of supporting documents, on various dates between March 2015 and March 2016.

11 On 24 March 2016, a departmental official produced a 47-page examination of the applicant's file, culminating in a recommendation in favour of deportation. A deportation order was made on 6 April 2016.

12 That order was challenged in judicial review proceedings brought on behalf of the applicant. In circumstances that have not been disclosed to the court by either side in the present application, those proceedings were compromised on 7 November 2016 and the deportation order was revoked two weeks later.

13 On 24 November 2016, the Minister wrote to the applicant, through his solicitors, to notify him that the deportation order against him had been revoked and that a fresh consideration would be carried out concerning the proposal to deport him. A copy of the GNIB report was enclosed, redacted to protect the identity of the injured party and those of the other persons involved. The applicant was invited to make any observations on that report and any other representations he might wish within a further period of fifteen days.

14 The applicant's solicitors replied at length on 15 December 2016, including a copy of the order of conviction of the applicant, though not a copy of the bill of indictment against him or of the transcript of his sentencing, and objecting, in substance, to any reliance being placed upon the contents of the GNIB report in circumstances where, they asserted, it contains allegations of conduct by the applicant for which he was...