Judgment Title: F.E. (a minor) & ors -v- Minister for Justice and Law Reform
Neutral Citation:  IEHC 62
High Court Record Number: 2009 966 JR
Date of Delivery: 14/02/2014
Court: High Court
Composition of Court:
Judgment by: McDermott J.
Status of Judgment: Approved
Neutral Citation:  IEHC 62
THE HIGH COURT
[2009 No. 966 J.R.]
F.E. (A MINOR ACTING BY HER FATHER AND NEXT FRIEND M.E.) AND, B.E. (A MINOR ACTING BY HIS FATHER AND NEXT FRIEND M.E.) AND, M.A.E. (A MINOR ACTING BY HIS FATHER NEXT FRIEND M.E.) AND M.E. AND E.E.
THE MINISTER FOR JUSTICE AND LAW REFORM
JUDGMENT of Mr. Justice McDermott delivered on 14th day of February, 2014
1. The court has already given its judgment on this application for an order of certiorari by way of judicial review quashing the deportation order issued against M.E. on 27th August, 2009. A declaration was also sought that the legal and/or constitutional rights of the applicants and/or their family rights under the European Convention on Human Rights had been infringed. Leave to apply for judicial review had been granted on 16th February, 2011 (Hogan J.) on a single ground that:-
3. The applicants now seek leave to appeal this judgment to the Supreme Court pursuant to the provisions of s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, which provides that leave cannot be granted unless the court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal be taken.
4. Written submissions were furnished by both parties on this application for a certificate, and were elaborated upon in oral argument, but the court is not persuaded that the test laid down under s. 5(3)(a) has been met.
5. The point upon which a certificate is sought is as follows:-
• It is not sufficient that an application merely asserts that the decision is irrational, unreasonable and disproportionate and invites the court to reassess the balance of reasonableness as between the interests of the state and the rights and interests of the applicant and the child or family concerned;
• The court is entitled to require the applicant to identify the particular error, omission or other flaw in the Respondents’ reasons or assessment of the case which is claimed to render the decision irrational, unreasonable or disproportionate.”
6. Section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, provides:-
2. The jurisdiction to certify such a case must be exercised sparingly.
3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as enable the courts to administer that law not only in the instant, but in future such cases.
5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.
6. The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which although they may overlap to some extent require separate consideration by the court (Raiu).
7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional”.
8. Normal statutory rules of construction apply which mean, inter alia, that “exceptional” must be given its normal meaning.
9. “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.
10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.”
9. This Court in its application of the Meadows principles applied what is acknowledged to be the repeated and consistent interpretation by the High Court of that decision as expressed by Cooke J. in I.S.O.F. v. Minister for Justice, Equality and Law Reform (No.2)  IEHC 457, in which he stated as follows:-
11. This precise point was considered at length in O.O.O.A. & Ors v. Minister for Justice, Equality and Law Reform  IEHC 78 in which a challenge was made to a deportation decision on the grounds that it was unreasonable and, therefore, disproportionate to expect a mother and her children to move to Nigeria to enjoy family life with the father who was facing deportation. It was contended that the Minister did not identify a “substantial reason” requiring the deportation of the father in accordance with the judgment of Denham J. in the Supreme Court in Oguekwe v. Minister for Justice  3 IR 795. Furthermore, it was submitted that immigration control was not a reason of sufficient substance to outweigh the detriment that the deportation would inflict upon the applicant family, particularly following the decision in Meadows, which now required that proportionality be considered when reviewing the reasonableness of an administrative decision.
12. Clark J. noted that in the Meadows case Murray C.J. stated that:-
14. It was emphasised in the Meadows case that the decision maker was entitled to a wide measure of discretion under section 3. Murray C.J. stated at para. 70 that:-
(a) the means must be rationally connected to the objective of the legislation and not arbitrary, unfair or based on irrational considerations;
(b) the rights of the person must be impaired as little as possible; and
(c) the effect on rights should be proportional to the objective.”
450. This does not involve a modification of the existing test as properly understood. Rather it is an explanation of principles that were already implicit in our law.”
17. The majority judgment in Meadows is clear that judicial review is not to be viewed as an appeal from the administrative decision and that the burden of proof remains upon an applicant to establish by cogent evidence that the challenged decision was unreasonable in that it was disproportionate in the sense explained in the judgments.
18. In Donegan v. Dublin City Council & Anor  IESC, the Supreme Court considered the provisions of s. 62 of the Housing Act 1966, which required a District Court to make an order for possession of a local authority house if a number of formal proofs were established under the section. The occupier had no right or entitlement to raise any defence to this application other than by way of challenging the housing authority in respect of these proofs. The absence of a judicial discretion meant that the personal circumstances of the occupier had to be disregarded as being irrelevant. The proportionality or fairness of the making of the order was also irrelevant and could not be taken into account in the statutory scheme. The applicant challenged the making of a decision under s. 62 on the basis that it failed to provide an effective remedy for alleged breach of the applicant’s family rights under Article 8 of the European Convention on Human Rights as required by Article 13 of the Convention. The Council contended that an effective remedy was available to the applicant by way of judicial review having regard to the jurisdiction of the court to consider the “proportionality” of the decision at the judicial review stage. However, no facts were or could have been considered by the District Court on an application for a warrant. It was submitted that personal or family circumstances could be considered in judicial review proceedings in assessing the proportionality of the decision even though these facts would, for the first time, be canvassed and considered by way of judicial review in the High Court. The Supreme Court was satisfied that the factual issues in the case as to whether the son of the family was a drug addict or a drug pusher, or whether he was residing in the house for a particular period, were not issues to be determined for the first time on an application for judicial review. Although the High Court could set aside a decision unlawfully made, that would inevitably leave the basic issues of fact unresolved. The court could not make its own findings of fact and substitute a decision based on those findings for that made by the decision maker. McKechnie J. (delivering the unanimous decision of the court) noted that any challenge by way of judicial review to the District Court warrant, absent a patent failure to comply with the section itself, was bound to fail and the court could not enter into an assessment of the facts and personal circumstances behind the application in the course of a judicial review.
19. The traditional scope of the remedy was reaffirmed by the Supreme Court. McKechnie J. stated:
131. In this regard the decision of Murray C.J. at p. 723 should be noted:-
‘In examining whether a decision properly flows from the premises on which it is based and whether it might be considered at variance with reason and common sense, I see no reason why the court should not have recourse to the principle of proportionality in determining those issues…application of the principle of proportionality is in my view a means of examining whether the decision meets the test of reasonableness, I do not find anything in the dicta of the court in Keegan or O’Keeffe which would exclude the court from applying the principle of proportionality where it could be considered relevant.’
It is clear from this statement, that although some extension of judicial review for reasonableness is envisaged so as to take account of the proportionality of the action, it is to be done on the basis of Keegan and O’Keeffe, rather than as an entirely novel criterion. As Fennelly J. noted at p. 817 in the same case:-
‘Two fundamental principles must, therefore, be respected in the rules of judicial review of administrative decisions. The first is that the decision is that of the administrative body and not of the court. The latter may not substitute its own view for that of the former. The second is that the system of judicial review requires that fundamental rights be respected.’
Thus, although some consideration of fundamental rights may be entered into in judicial review, this in no way affects the traditional position that such remedy cannot be used as a rehearing or otherwise to determine conflicts of fact.
132. In light of the comments already made as to the adequacy of judicial review, I would not find that Meadows has substantially altered that position in this regard.”
21. The applicants rely upon the decision of Hogan J. in P.S. & B.E.  IEHC as authority for the proposition that the Meadows decision permitted an assessment by the High Court of the proportionality of the respondent’s interference with the constitutional rights of the applicants’ simpliciter. There is no discussion of the Meadows decision in P.S. & B.E. It is clear that the learned judge in that case assessed the evidence adduced on behalf of the applicants relating to the material which was before the Minister at the time the decision was made to deport B.E. and concluded that the decision involved an “entirely unrealistic and totally unbalanced assessment” of the prospects of P.S. visiting his wife in Nigeria. The applicant husband lived on disability payments, suffered from intellectual disability and bi-polar disorder, was dependent on the daily support of a religious order to enable independent living in the community and was assessed twice a month by an educational psychologist. The decision was held to be disproportionate and “unreasonable in law”. I do not accept that this decision is at variance with the decision of this Court in the application of the Meadows principles.
22. Though the applicants on this application rely upon the decision of Hogan J. in Efe & Ors v. Minister for Justice, Equality and Law Reform & Ors (No.2)  IEHC 214, it is clear that the learned judge in that case adopted what he regarded as “the succinct and comprehensive summary of the present law contained in the judgment of Cooke J.” in I.S.O.F. v. Minister for Justice, Equality and Law Reform (No.2) concerning how the Meadows decision ought to be applied to a challenge by way of judicial review in deportation cases. As noted by Hogan J. I.S.O.F. was a decision in which a certificate of leave to appeal to the Supreme Court in order to clarify aspects of Meadows was refused by Cooke J..
23. The applicants also rely upon the decision of Clark J. in S(B) & Ors v. Minister for Justice, Equality and Law Reform  IEHC 417 and contend that the learned judge looked at the affect of the decision of the respondent on the constitutional rights of the applicants’ family and weighed whether it was proportionate viz a viz the protection of the integrity of the State’s immigration system. In that case the applicants challenged the decision by the Minister to revoke a deportation order made under s. 3(11) of the Act on the basis, inter alia, that the respondent had failed to consider the right of the citizen children to the care and company of their father who was the subject of the deportation and failed to consider the different circumstances which existed following the deportation six years earlier. The learned judge stated at para. 32:-
24. Hogan J. in Efe held that the constitutional rights of the applicants were adequately vindicated by the common law rules of judicial review following the Meadows decision. He also concluded that the Meadows principles satisfied the requirements of Article 13 of the European Convention on Human Rights and that there was no basis for granting a declaration that the rules of judicial review were unconstitutional because they did not provide an effective remedy sufficient to satisfy the requirements of Article 13.
25. In the Illegal Immigrants (Trafficking) Bill 1999  2.I.R. the Supreme Court in finding that s. 5 of the Bill was not repugnant to the provisions of the Constitution noted that all of the matters (including deportation orders) fell to be decided in an administrative process by persons authorised by law to do so:-
(ii) The best interests of the children were not served by the making of the deportation order;
(iii) It was unreasonable to expect the applicant wife and children to move to Nigeria to be with M.E.;
(iv) E.E. would be left to look after the children alone in the state without the support of her husband;
(v) The children were not of an adaptable age and it was not in their best interests that their father be deported;
(vi) If the children were required to live in Nigeria they would suffer disadvantages in their upbringing there rather than in Ireland and would not be able to avail of the same level of education and other opportunities (including health protection) as would be available in this State;
(vii) The deportation order was unreasonable because the applicant had been convicted of an offence in respect of which a relatively short term of imprisonment had been imposed, which he had served and following which he had a clean record and had not come to the adverse attention of the authorities up to the time of the making of the order.
28. As repeatedly stated by the Supreme Court, judicial review is not a form of appeal and the onus of proof lies upon the applicant to demonstrate that the impugned decision is fundamentally flawed. In this case the court has determined that the applicants have failed to do so. It was clearly incumbent upon the applicants to demonstrate by reference to the impugned decision the factors which establish the disproportionality for which they contended. As already indicated, the applicants advanced such factors but the court rejected the challenge for the reasons set out in the judgment.
29. To that extent, this case is distinguishable from the case in which the point of law was certified in Lofinmakin (an infant) v. Minister for Justice, Equality and Law Reform  IEHC 38 by Cooke J. That was an application for leave to apply for judicial review in which an order of certiorari was sought quashing a deportation order made against a Syrian businessman who had visited the country on temporary visas on previous occasions in order to visit his wife and children. The challenge was based on a total of twenty six grounds, five of which were later abandoned. Four other grounds failed to specify with adequate precision the exact illegality or other flaw in the deportation order which it was sought to quash.
30. The main ground relied upon was that the applicants were entitled to an effective remedy under Article 13 of the European Convention on Human Rights and that judicial review did not provide such a remedy because of “common law constraints”. The applicants sought a declaration that the judicial review remedy was ineffective and incompatible with the state’s obligation under Article 13 of the Convention. However, the applicants had not pleaded that their fundamental rights had been violated by the deportation order and that the violation could not be adequately remedied by appropriate reliefs based on the infringement of their rights under the Constitution or otherwise under national law. This was a condition precedent to seeking a declaration of incompatibility under s. 5 of the European Convention on Human Rights Act 2003, and in accordance with the decision of the Supreme Court in Carmody v. Minister for Justice, Equality and Law Reform  IESC 71. An application to amend the statement of grounds to allow these issues to be canvassed was refused. Apart from the fact that the amendment would prejudice the respondents in their conduct of the case, the court considered that the matter had already been answered by Clark J. in N.B. & Ors v. Minister for Justice and Law Reform (Unreported, High Court, 30th July, 2010, at paras. 39 – 60). The court indicated that it was not necessary to rule again on that issue but outlined its reasons why this was so extensively at paras. 19 to 51 of the judgment.
31. Cooke J. noted that:-
34. It is clear that Cooke J. considered the law in the matter to be settled and, indeed, had refused to certify a similar point in the I.S.O.F. case. Furthermore, his certification predates the decision of the Supreme Court in Donegan which effectively affirmed the decision in Meadows and, in my view, supports the approach in the various decisions of the High Court on this issue which have sought to apply the Meadows decision in the asylum immigration area. In my view the continued assertion that the High Court has a jurisdiction and obligation to examine the substantive merits of a challenged decision and effectively substitute its own deportation decision when the court considers the Minister’s decision to be disproportionate is, in the light of present authorities, incorrect and does not give rise to a point of law of exceptional public importance that requires resolution by the grant of a certificate.
35. I am not satisfied that any of the cases cited in argument support the proposition advanced by the applicants.
36. The applicants in Lofinmakin did not identify a precise basis upon which the alleged disproportionate nature of the decision in that case could be challenged. It was clear that generalised grounds were unacceptable as a basis upon which to seek leave. Cooke J. emphasised the imprecise nature of the grounds advanced. In this case the precise ground was formulated by Hogan J. in granting leave to apply for judicial review namely that, having regard to the conviction recorded against the applicant, the decision to make a deportation order against him was disproportionate in that it infringed his constitutional and conventional rights. That precise ground provided a framework within which to advance the criticisms of the decision to which I referred earlier. Thus, the nature of the question formulated in Lofinmakin cannot be transposed simpliciter to the single ground in this case which was not a simple assertion that the decision was unreasonable and disproportionate and, in fact, identifies the particular error which is claimed to render the decision flawed. Therefore, I am not satisfied that the question submitted requires to be answered to enable the court to reach its decision. Furthermore, a point of law certified under s. 5(3)(a) must be determined, not in the abstract, but within the context and on the basis of the facts and circumstances of the particular case.
37. For all of the above reasons, the court is not satisfied to certify that the decision in this case involves a point of law of exceptional public importance or that it is desirable in the public interest that an appeal should be taken to the Supreme Court. I am satisfied that the legal point in the form of the question posed does not arise in this case. I am not satisfied that the common law rules in respect of judicial review or their adequacy as an effective remedy under Article 13 of the European Convention on Human Rights or the Constitution are in a state of uncertainty. The standard applicable to judicial review concerning the issue of proportionality and de novo hearings has been addressed fully by the Supreme Court in the Meadows case and subsequently, in the Donegan case. Those principles have been applied consistently in the High Court. The applicants cannot simply impute or create uncertainty concerning a point of law by repeatedly raising one which in the courts view has already been decided. In any event, I am not satisfied that the question as framed arises out of the court’s decision in this case.