Judgment Title: Kangethe -v- MJLR
Composition of Court:
Judgment by: Cooke J.
Status of Judgment: Approved
Neutral Citation Number:  IEHC 351
THE HIGH COURT
2010 1264 JR
THE MINISTER FOR JUSTICE AND LAW REFORM
JUDGMENT of Mr. Justice Cooke delivered 7th day of October, 2010.
1. This is an application made ex parte for leave to seek judicial review of the respondent’s decision of 6th September, 2010, which refused an application made by the applicant under s. 3 (11) of the Immigration Act 1999 for the revocation of a deportation order which had been made in respect of him on 21st September, 2009, (“the Contested Decision”).
2. The applicant arrived in the State from Kenya in January 2007 and was unsuccessful in claiming asylum. An application for subsidiary protection was also refused. The Court notes that this application has been brought based on a grounding affidavit from the applicant and a supporting affidavit from Ms. Peninah Wanjiku who is described as the applicant’s partner and to whom he claims to be engaged to marry. Ms. Wanjiku is also from Kenya and was granted asylum in the State and is now an Irish citizen. She has a child who is an Irish citizen of whom the applicant is not the father. The applicant claims, however, that he is regarded as playing a fatherly role by that child and by its mother and that they constitute together a family unit.
3. The Contested Decision was, as usual, supported by a file note containing the analysis of the application made by the Repatriation Unit of the Department for the Minister’s recommendation and on which the decision is based. This constitutes, in effect, the statement of the Minister’s reasons for the decision. Apart from the background information recorded in the file note, however, the Court has been furnished with virtually no direct evidence on behalf of the applicant as to the basis of the asylum application; the representations made against the Minister’s proposal to make a deportation order; or the reasons why those representations were rejected and what humanitarian considerations, if any, were put forward and presumably found not to outweigh the interests of the State which the Minister sought to protect in ordering the deportation.
4. This lack of information is material in this application because the arguments advanced appear to the Court to seek to reopen matters which would logically have been considered by the Minister when making his decision to deport. It is well settled law that the grounds upon which a decision refusing revocation under s. 3 (11) may be challenged are limited. In his judgment of 9th November, 2005, in Kouaype v. MJELR  IEHC 380, Clarke J. identified the limited grounds upon which a decision to make the deportation order may be open to challenge:
(b) That the Minister could not reasonably come to the view on which the decision to deport was based;
(c) Failure to allow the asylum seeker to make representations by way of humanitarian considerations; and
(d) Failure to consider those representations.
5. This Court described the approach that should be taken in its ex tempore judgment of the 17th December, 2009, in the case of M.A. v. MJELR where the Court said:
(See also the judgment of this Court in I. & Anor. v. MJELR  IEHC 334.)
7. The Contested Decision responds to the application made under s. 3 (11) as made on behalf of the applicant by his solicitors by letter of 27th April, 2010. The material part of that application is as follows:
(b) They are engaged to be married;
(c) Ms. Wanjiku was pregnant and the child when born would be an Irish citizen; and
(d) Ms. Wanjiku has another child by another father and there is an insurmountable obstacle to her joining the applicant in Kenya on deportation without the permission of that child’s father.
10. In the statement of grounds five grounds are put forward. It is notable that none seeks to allege that the Contested Decision is vitiated by any specific mistake either of fact or law. The grounds are characterised by the common assertion that the decision is “ultra vires, arbitrary, irrational, unreasonable and disproportionate” in taking into account irrelevant considerations and/or failing to take account of relevant considerations. The grounds in the arguments emphasised by Counsel at the ex parte hearing were directed particularly at the adequacy of the decision’s assessment of:
(b) The claim that there is an insurmountable obstacle to that unit relocating together to Kenya because the child could not be removed without the consent of the biological father;
(c) In particular, the rights of the unborn child under the Constitution and the European Convention on Human Rights.
12. Where, as here, the grounds sought to be raised are based on an alleged irrationality, unreasonableness or disproportionality in a narrative decision of this detail, the test in law is that reaffirmed by the Supreme Court in the judgments of 21st January, 2010, in Meadows v. M.J.E.L.R.  IESC 2010 namely, the test previously laid down in State (Keegan) v. Stardust Victims’ Compensation Tribunal  I.R. 642 and O’Keeffe v. An Bord Pleanála  I.R. 39. A decision is only unlawful on this basis if it is shown not to flow from the premise upon which it is based such that the conclusion reached and given effect to in the decision flies in the face of reason and common sense.
13. Having considered the five grounds proposed to be raised in the light of the oral submissions, the Court is satisfied that no arguable case can be made that this Contested Decision, as explained at length in the twelve pages of the file note, does not flow from its premise or flies in the face of reason and common sense. Each of the new facts and changed circumstances relied upon in the letter of 27th April, 2010, is set out and commented upon in detail in the file note. Explicit consideration is given to the implication of the applicant’s relationship with Ms. Wanjiku and her son and it is expressly recognised that this establishes “a family life in the State with an Irish national partner” for the purpose of Article 8 of the European Convention on Human Rights. The claim to the existence of an insurmountable obstacle is also expressly addressed and “it has been established that the applicant’s partner would not be able to return to Kenya and establish family life with the applicant there”. It is noted, however, that the applicant “has not submitted any documents or information to indicate that he is divorced from his wife in Kenya or that his marriage there has been dissolved therefore the applicant may not be in a position to marry his partner”.
14. Based on the state of information then available to the Minister it could not be seriously suggested that this was not a reasonable and logical doubt as to the reality of the proposition that the applicant and Ms. Wanjiku would intend to relocate to Kenya in the event of his deportation but would face an insurmountable obstacle is doing so. It must also be pointed out that the Minister appears to have been given no information to substantiate the proposition that the absence of consent to the relocation of the child by his father would be an insurmountable obstacle. Who is the father in question? Where is he? Is he in Ireland or in Kenya? Has he been asked to consent?
15. Thus, there has in this case, been a careful and detailed consideration of the matters put forward as the basis for revocation of the order. In the absence of any claim that some mistake has been made on any material fact it does not constitute an arguable case as to the illegality of the refusal to merely assert that the balance struck by the Minister is unreasonable or disproportionate. The Minister has considered the changed circumstances put to him and has rejected them for the reasons given. Those reasons are clearly based on the facts and information given to the Minister pertinent to the circumstance of the applicant and his previous and new relationships. Furthermore, the Minister has recognised that Ms. Wanjiku is expecting the applicant’s child in November next and that that child will be an Irish citizen.
16. However, as this Court has pointed out in its judgment of 17th December, 2009, in the case of H.U. & Ors. v. Minister for Justice, Equality and Law Reform  IEHC 598, the right protected by Article 40.3.3 of the Constitution is the right to life of the unborn child. Insofar as a third party and particularly the natural parent of the unborn child is entitled to assert a constitutional right on its behalf in advance of its birth, the only constitutional right thus justiciable is the right to life, that is, the right to be born. It is only after the birth that the personal rights of the child itself become justiciable in its own right and name. In the judgment of the Court no arguable case can be made that the Minister has a duty to anticipate such personal rights and to consider them in assessing an application to revoke an existing deportation order.
17. Moreover, as the file note correctly points out, even the existence of such personal rights does not require that the State must accept the choice of place of residence made by the child’s parents. That is particularly so where, as in this case, the parents decided to conceive the child in full knowledge of the imminent deportation of the father.
18. In effect, this application for leave is based on a misconception. The proposed grounds are predicated on an assumption that the Minister is obliged under s. 3 (11) of the Act to reconsider the decision to deport the applicant. Hence, the grounds are cast in terms of the alleged unreasonableness or disproportionality of a deportation of the applicant having regard to the fact that he is now in a relationship with Ms. Wanjiku, that he claims to be engaged to be married to her and to the fact that she is expecting his child who will be an Irish citizen with constitutional rights. Essentially, the case to be argued takes issue with the Minister’s assessment of these facts and circumstances and asserts a disagreement with the balance the Minister has struck in weighing those factors against the interests of the State which the Minister seeks to protect. But the decision to deport the applicant has already been made. A valid order is in existence and is not as such open to challenge. The only issue that can arise in respect of a decision to refuse revocation under s. 3 (11) is whether in the light of the changed circumstances advanced in the application to revoke, the Minister has erred in law or made some material mistake of fact in his decision to refuse revocation. That can only be so if, in the light of the reasons given for the refusal, it is demonstrated that the implementation of the deportation has now become illegal by reason of the changed circumstances.
19. For the reasons already given, the Court is satisfied that no arguable case to that effect has been made out here. It cannot, in the Court’s judgment, be arguably maintained with any prospect of success at a substantive hearing that the Minister’s reasons for refusal do not flow from the premise on which it is based, namely, the alleged changes of circumstance put to him nor that the refusal flies in the face of reason and common sense. Having regard particularly to the fact that the most important change namely, the conception of the expected child, has occurred after the deportation order was notified and in full knowledge of its implication for the applicant it would, on the contrary, fly in the face of reason and common sense to conclude that the Minister was acting unlawfully in deciding to abide by the existing decision to deport.
20. For all of these reasons the application for leave must be refused.