L. (R.) & Anor v. Minister for Justice, Equality and Law Reform [2004] IEHC 46 (19 March 2004)
Record Number 2003/501 J.R.
BETWEEN
APPLICANTS
RESPONDENT
Judgment of Mr. Justice Herbert delivered the 19th day of March, 2004
On 10th March, 2003, the Minister for Justice, Equality and Law Reform made a Deportation Order in respect of the first named applicant. A Notice complying with the requirements of s. 3 (3) (b) (ii) of the Immigration Act, 2000 dated 8th May, 2003, was sent by registered post to the first named applicant. At paragraph 8 of the Grounding Affidavit sworn by his Solicitor, Aileen Fleming, for the first named applicant on 4th July, 2003, it is accepted that this Notice was received by the first named applicant on 9th May, 2003. Section 5 (2) (a) of the Illegal Immigrants (Trafficking) Act, 2000, requires that an application for leave to apply for Judicial Review shall be made within 14 days, commencing on the date on which the first named applicant was notified by the s. 3 (3) (b) (ii) Notice of the making of the Deportation Order. The application for leave to seek Judicial Review is dated 7th July, 2003, so that it is made 44 days outside the permitted period. By s. 5 (2) (a) of the Illegal Immigrants (Trafficking) Act, 2000, a discretion is vested in the High Court to extend the time for the making of the application for Judicial Review should it consider that there is good and sufficient reason for so doing.
In the case of "S." v. The Minister for Justice, Equality and Law Reform, the Supreme Court, per Denham, J., held that in considering whether to exercise its power under s. 5 (2) (a) of the Act of 2000, the Court should have regard to the following matters:-
1. Whether there was evidence that the applicant had formed the intention to seek Judicial Review within the allowed time.
2. The margin of delay involved.
3. Whether the State is prejudiced by the delay.
4. The explanation given for and the excuse offered for the delay.
5. Whether the applicant has an arguable case on the merits of the substantive application.
Denham, J., pointed out that in general delay by legal representatives will not prima facie provide a good and sufficient reason to extend the time. Such legal representatives have a duty to act with expedition in these cases. Circumstances must exist to excuse such delay on the part of the legal representatives. (See also G.K. v. The Minister for Justice, Equality and Law Reform and Others [2002] 2 I.R. 418, Supreme Court per., Hardiman, J.).
The first named applicant arrived in the State on 26th March, 2000. A delay from 9th May, 2003, to 7th July, 2003, might not, in such circumstances, seem unreasonable. This however is not the test. The Oireachtas has stipulated a period of 14 days, including the date of notification, as the time within which leave to seek Judicial Review is to be sought. It is by reference to this period alone that the court must judge the margin of delay. In the present case, without taking any account of the 14 day period allowed by s. 5 (2) (a) of the Act of 2000, the period of the delay was over three times the period of 14 days allowed by the Statute. In my judgment, having regard to the foregoing, this was a material and significant delay.
Counsel for the respondent accepted that there would be no prejudice to the State as a consequence of this delay should the court exercise its discretion to extend the time.
At paragraphs 3 and 4 of an Affidavit sworn on 9th July, 2003, by the first named applicant, he avers as follows:-
"3. I say that on receipt of the letter dated 8th May, 2003, from the respondent's Repatriation Unit informing me that the respondent had made a Deportation Order against me dated 10th March, 2003, and further on the return of my application for a Certificate of Naturalisation from the respondent's Citizenship Section by letter dated 6th May, 2003, I acted with all haste in attempting to gain an understanding of matters both by contacting the Refugee Legal Service and by retaining Aileen Fleming, Solicitor.
4. I say that I contacted the Refugee Legal Service and that a letter dated 15th May, 2003, was written on my behalf in response to the respondent's Repatriation Unit of 8th May, 2003. Further I say that on 12th May, 2003, I retained Aileen Fleming, Solicitor with Daniel Spring & Company who wrote letters dated 13th May, 2003, to both the respondent's Repatriation Unit and Citizenship Section. Thereafter, I attended at consultations with my Solicitor and with Counsel."
The facts sworn to in theses paragraphs are not challenged by any of the concerned parties. At paragraph 6 of the Grounding Affidavit of Aileen Fleming, (to which I have already made reference), the deponent states that she was initially contacted by the first named applicant by telephone on 12th May, 2003. The first named applicant was seeking an urgent appointment. This recollection is corroborated by letters exhibited in her Affidavit written by the deponent on behalf of the first named applicant on 13th May, 2003, to the Citizenship Section of the Department of Justice, Equality and Law Reform and to the Repatriation Unit, Immigration Division of that Department. Also exhibited in the Grounding Affidavit of Aileen Fleming is a letter dated 15th May, 2003, written on behalf of the first named applicant by the Refugee Legal Service, - who represented the first named applicant until 19th May, 2003, - to the Repatriation Unit, Immigration Division of the Department of Justice, Equality and Law Reform. One may infer therefore that the first named applicant contacted the Refugee Legal Service regarding the s. 3 (3) (b) (ii) Notification in or about the same date as he contacted Daniel Spring and Company, Solicitors. I am satisfied on this evidence that the first named applicant formed the intention to challenge the s. 3 (3) (b) (ii) Notification, well within the period of 14 days and that the delay in this application being made is the delay of his legal representatives.
The first named applicant sought a Certificate of Naturalisation on 6th May, 2003, on the basis of his marriage, after the expiry of the requisite statutory notice period, to an Irish Citizen on 20th February, 2003, at the office of the Registrar of Marriages at Dublin. This application was rejected on the same day by reason of a defect in the Statutory Declaration. The Application was re-submitted by Daniel Spring and Company, Solicitors on behalf of the first named applicant on 13th May, 2003. The Application was refused by a letter dated 21st May, 2003. The period of 14 days allowed to the first named applicant within which to seek Judicial Review of the s. 3 (3) (b) (ii) Notification expired on 23rd May, 2003. Accordingly, the claim made that it would have been premature to seek Judicial Review until after this application for a Certificate of Naturalisation had been determined, while it may explain and excuse why the application for leave to seek Judicial Review was not made within the period of 14 days allowed, it neither explains nor offers an objectively justifiable excuse as to why the application was not made for a further 44 days thereafter. (See: State (Furey) v. The Minister for Defence [1988] I.L.M.R. 89).
At paragraph 18 of the Grounding Affidavit of Aileen Fleming, sworn on behalf of the first named applicant on 4th July, 2003, it is sworn as follows:-
"I forwarded papers to Counsel by letter dated 3rd day of June, 2003. Following a consultation on 12th day of June, 2003, it was deemed necessary to seek a copy of the applicant's file from the Refugee Legal Service in order to confirm that the first named applicant and any of his legal representatives had not received any notification of a proposal by the respondent prior to his decision to deport the applicant. I sought a copy of the file from the Refugee Legal Service by letter dated 19th May, 2000, and received the file 26th June, 2003, under cover of a letter dated 25th June, 2003. Having familiarised myself with the file and not having found any mention of any notification with regard to the Deportation Order, I furnished Counsel with the new set of papers and he replied by letter dated 1st July, 2003. In this regard I beg to refer to copies my of letter dated 19th May, 2003, and the reply of the Refugee Legal Service dated 25th June, 2003, upon which pinned together and marked with the letters A. F. 12 I have signed my name prior to the swearing hereof."
It is clear from the letters exhibited that the request for the File in relation to the first named applicant to the Refugee Legal Service was made on 19th May, 2003, so that the reference in this paragraph to the 19th May, 2000, may be considered a typographical error. In my judgment obtaining this File with regard to the first named applicant from the Refugee Legal Service was a matter which demanded immediate attention. Yet, despite the refusal on 21st May, 2003, of the first named applicant's request for a Certificate of Naturalisation, there was no evidence of any further attempt to obtain this file which was not received until 26th June, 2003, - 34 days after the expiry of the 14 day period allowed by s. 5 (2) (a) of the Illegal Immigrants (Trafficking) Act, 2000. This is all the more remarkable when it is stated that at a consultation held on 12th June, 2003, (In itself 20 days after the expiry of the 14 day period), " it was deemed necessary to seek a copy of the applicant's file from the Refugee Legal Service in order to confirm that the first named applicant and any of his legal representatives had not received any notification of a proposal by the respondent prior to his decision to deport the applicant." This is information which one may reasonably infer could readily have been elicited by a telephone call to the applicant and to the Refugee Legal Service at any time between 12th May, 2003, and 23rd May, 2003.
I am not satisfied that any circumstances have been shown to exist to excuse the delay after 21st May, 2003, on any objectively justifiable basis. This being so, there is no basis upon which the court could properly consider whether there is any good and sufficient reason to extend the time for leave to seek Judicial Review in this case.
Even if this inhibition to extending the time did not exist, I am not satisfied that the first named applicant has shown that he has an arguable case on the merits of the substantive application, (G. K., Z. M. and Others v. The Minister for Justice, Equality and Law Reform [2002] 2 I.R. 48,).
The decision of the Member of the Refugee Appeals Tribunal was given on 11th February, 2002. The Member of the Refugee Appeals Tribunal found that the first named applicant had not demonstrated a well-founded fear of persecution should he be returned to Algeria. A Deportation Order in respect of the first named applicant was made by the Minister for Justice, Equality and Law Reform on 10th March, 2003.
Section 3 (3) (a) of the Immigration Act, 1999, provides as follows:-
"Subject to subs. (5) where the Minister proposes to make a Deportation Order, he or she shall notify the person concerned in writing of his or her proposal and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that he or she understands."
(The provisions of subs. (5) are not relevant to the facts of this application).
The first named applicant contends that no such Notice was served on him. It is deposed by Aileen Fleming at paragraph 18 of the Grounding Affidavit sworn by her on behalf of the first named applicant on 4th July, 2003, that she did not find any mention of any notification with regard to this Deportation Order on the File received by her from the Refugee Legal Service on 26th June, 2003. As hereafter appears, the affidavit evidence before the court establishes that the Refugee Legal Service acted on behalf of the first named applicant between 26th March, 2002, and 19th May, 2003.
At paragraph 9 of a Replying Affidavit sworn on behalf of the respondent by Michael Flynn, an Assistant Principal Officer of the Department of Justice, Equality and Law Reform, on 2nd November, 2003, it is stated as follows:-
"9. A notification issued under s. 3 (3) (a) of the Immigration Act, 1999, to the last known address of the first named applicant by registered post on 5th March, 2002, and he was given various options, including making written submissions within 15 working days regarding his wish to remain in the State. I beg to refer to the said Notification upon which marked with the letter "B" I have endorsed my name prior to the swearing hereof."
Exhibited is a copy of this letter bearing a stamp date "-5 MAR 2002", and signed by Dermot F. Cassidy, Deciding Officer. This letter is addressed to the first named applicant at Flat 2, 2 Conyngham Road, Dublin 8.
By a letter dated 26th March, 2002, the Refugee Legal Service made an application under s. 3 of the Immigration Act, 1999, on behalf of the first named applicant to the Minister for Justice, Equality and Law Reform through the Repatriation Unit, Immigration Division of the Department of Justice, Equality and Law Reform, for leave to remain in the State. These representations were made, - I believe significantly, - within the 15 days permitted by s. 3 (3) (b) of the Immigration Act, 1999, to a person who has been notified under s. 3 (3) (a) of a proposal to make a Deportation Order in respect of her or him. There is, however, no reference in these representations to a Notification under s. 3 (3) (a) of the Act of 1999, having been received and it was submitted on behalf of the first named applicant that the date of submission of the representations was entirely coincidental.
From the documents exhibited at the hearing of this application it appears that Mr. J.R. Lynch, Solicitor of 9, Upper Mount Street, acted on behalf of the first named applicant on 20th November, 2001, and in that capacity submitted a Notice of Appeal to the Refugee Appeals Tribunal from the decision of the Refugee Applications Commissioner. The decision of the Member of the Refugee Appeals Tribunal was given on 11th February, 2002. The letter of 26th March, 2002, from the Refugee Legal Service to the Minister of Justice, Equality and Law Reform through the Repatriation Unit opens, "We confirm that we act for [the first named applicant] of Flat 2, 2 Conyngham Road, Dublin 8."
In the circumstances, a copy of the Notification dated 5th March, 2002, if issued would properly have been sent to Mr. J. R. Lynch. Section 3 (3) (a) of the Immigration Act, 1999, does not require that Notice be sent to the legal representatives of the first named applicant, it only requires that the Minister for Justice, Equality and Law Reform notify the person concerned that he proposes to make a Deportation Order in respect of her or him. The address given for the first named applicant in the Notice of Appeal to the Refugee Appeals Tribunal signed by the first named applicant and John R. Lynch on 19th November, 2001, is Flat 2, Conyngham Road, Dublin 8.
Section 6 of the Immigration Act, 1999, (as amended) provides that a Notice required under the Act to be served or to be given to a person shall be addressed to him or her and shall be served on him or her as follows:-
(B) By sending it by post in a prepaid registered letter, or by any other form of recorded delivery service prescribed by the Minister, addressed to him or her at the address most recently furnished by him or her to the Registration Office pursuant to Article 11 of the Aliens Order, 1946, (S.R. and O., N.o. 395 of 1946), or to the Refugee Applications Commissioner pursuant to s. 9 (4A) of the Refugee Act, 1996, as the case maybe, or, in a case in which an address for service has been furnished at that address.
Section 6 (2) of the Act of 1999, (as amended) provides as follows:-
"Where a notice under this Act has been sent to a person in accordance with paragraph (b) of the foregoing subsection the notice shall deemed to have been duly served on or given to the person on the third day after the day on which it was so sent."
In a Supplemental Affidavit sworn on behalf of the respondent on 18th February, 2004, by Mr. Terry Lonergan, an Assistant Principal Officer of the Department of Justice, Equality and Law Reform, at paragraphs 3, 4 and 5 he avers as follows:-
"3. I say that I am familiar with the operation of the registered post system in the Department from my discussions with officers working directly in that area. The system operates as follows. All letters/notices which are to be issued by registered post are given to a designated officer whose task it is to process the post and ensure the issuance of the post on the day it is allocated to them. The officer uses sheets of prepaid stickers provided by An Post which show lists of customer reference numbers. Each item of correspondence to be issued by registered post is assigned a numbered sticker and two copies are affixed to the envelope – one on back and one on front – containing the relevant letter or notice. Duplicate stickers showing the same reference number are placed in the registered post record book as provided by An Post with details inserted by hand of the addressee. An original of the registered post record book is returned to An Post matched to the bundle of registered post issued for that day. This enables An Post to retrieve and retain the same information as to each item of post and addressee. This allocation and recording of the registered number and addressee by the Department, and later by An Post for each item of post enables An Post to track the handling of the letter through the postal system.
4. I say that notification a pursuant to s. 3 (3) (a) of the Immigration Act, 1999, was issued to the last known address of the first named applicant at Flat 2, 2 Conyngham Road, Dublin 8. The said Notice was posted to the first named applicant's last known address in a prepaid registered envelope registration reference number RR383267807I.E., on 5th March, 2002. In addition, a copy of the said Notification was sent by prepaid registered post to the first named applicant's legal representative at that time, Mr. John Lynch, Solicitor in a prepaid registered envelope registration reference number RR383267869I.E. I beg to refer to the relevant extract from the entries made in the registered post record book of the respondent, for 5th March, 2002, which marked with the letter "A" I have signed my name prior to the swearing hereof.
5. I say that following enquiries made during the hearing of these proceedings on 17th February, 2004, the Department received from An Post a fax confirmation of delivery, on 6th March, 2002, of the registered letter, registration/customer reference number RR383267807I.E., being the notification pursuant to s. 3 (3) (a) of the Immigration Act, 1999, issued to the first named applicant on 5th March, 2002. I beg to refer to the said faxed confirmation upon which marked with the letter "B" I have signed my name prior to the swearing hereof."
In my judgment on the balance of probabilities a strong prima facie case is made out by the respondent that a Notification pursuant to s. 3 (3) (a) of the Immigration Act, 1999, was served on the first named applicant. Significantly no affidavit from Mr. John R. Lynch, Solicitor or his Firm was obtained by the first named applicant. Neither does the first named applicant in the Verifying Affidavit sworn by him on 9th July, 2003, specifically swear that the s. 3 (3) (a) Notification dated 5th March, 2002, was not served on him. In my judgment, the first named applicant does not have an arguable case on the merits of this submission.
The second part of the argument advanced on behalf of the first named applicant is based upon wording of s. 3 (6) of the Immigration Act, 1999, which provides that in determining whether to make a Deportation Order in relation to a person, the Minister for Justice, Equality and Law Reform shall have regard to eleven specified matters so far as they appear or are known to her or him. One of these matters to which the Minister must, (the use of, "shall" in this subsection is clearly mandatory and Counsel for the respondent did not argue otherwise), have regard is, "(C) the family and domestic circumstances of the person".
The first named applicant married the second named applicant, an Irish Citizen, at the offices of the Registrar of Marriages in Dublin on 20th February, 2003. At the date of this marriage, his application for refugee status had been refused by the Refugee Applications Commissioner on 5th November, 2001, and by the Refugee Appeals Tribunal on 11th February, 2002 and notified to him on 18th February, 2002. On the balance of probabilities the first named applicant was notified on 6th March, 2002, that the Minister for Justice, Equality and Law Reform proposed to make a Deportation Order in respect of him. On 26th March, 2002, the Refugee Legal Service, instructed by the first named applicant, made representations to the Minister under s. 3 of the Immigration Act, 1999, that the first named applicant be permitted to remain in the State. Receipt of this application was acknowledged on behalf of the Minister on 2nd April, 2002.
At this point I believe that it is important to repeat what was held by Hardiman, J., in the case of F.P. v. The Minister for Justice, Equality and Law Reform [2002] 1 IR 164 at 172:-
"Before considering whether any of these complaints have sufficient merit to ground a grant of leave to apply for Judicial Review, it is worth re-stating the status of the applicants at the time they made their representations. They were persons whose applications for asylum been rejected at first instance and on appeal. They lacked any entitlement to remain in the country save that deriving from the procedures they were operating, i.e. a right to await a decision on a request not to be deported. Both the fact that they had been refused refugee status and the nature of the decision awaited as it appears from the Act of 2000, emphasises that this was in the nature of an ad misericoridam application. The matter is requiring to be considered where the personal circumstances of the applicant, described under seven sub-headings; is representations (which in practice relate to the same matters) and "humanitarian considerations". The impersonal matters required to be considered were described as "the common good and considerations of national security and public policy". They did not include in any way an obligation to revisit the original decision."
It was against this background that the first named applicant married the second named applicant on 20th February, 2003. The Minister for Justice, Equality and Law Reform made a Deportation Order in respect of the first named applicant on 10th March, 2003. Notification of this Decision and the reasons for it dated 8th May, 2003, was given to first named applicant and he accepts that he received this notification on 9th May, 2003. The reasons stated by the Minister were as follows:-
"In reaching this decision the Minister has satisfied himself that the provisions of s. 5 (prohibition of refoulement) of the Refugee Act, 1996, are complied with in your case.
The reasons for the Minister's decision are that you are a person whose refugee status has been refused and having had regard to the factors set out in s. 3 (6) of the Immigration Act, 1999, including the representations received on your behalf, the Minister is satisfied that the interests of public policy and the common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your case as might tend to support your being granted leave to remain in this state."
These were the same reasons as were given by the Minister for Justice, Equality and Law Reform in the case of F.P. v. The Minister for Justice, Equality and Law Reform [above cited]. In the course of his judgment in that case with which all the other Members of the Court agreed Hardiman, J., at p. 175 of the Report stated as follows:-
" Where an administrative decision must address only a single issue, its formulation will often be succinct. Where a large number of persons apply on individual facts, for the same relief, the nature of the authorities' consideration and the form of the grant or refusal may be similar or identical. An adequate statement of reasons in one case may thus be equally adequate in others. This does not diminish the statements essential validity or convert it into a mere administrative formula."
In the Replying Affidavit of Michael Flynn, sworn on 20th November, 2003, on behalf of the respondent, and to which I have already referred, it is sworn as follows at paragraph 12:-
"I say that the Minister was aware that the first named applicant intended to marry the second named applicant and submissions were prepared for the First and Second Supervisors on the 14th February, 2003 and 17th February, 2003 and were duly stamped and approved by the Minister and I beg to refer to the said submissions upon which marked with the letter "E" I have endorsed my name prior to the swearing hereof."
The first named applicant is claiming that despite what is stated by him, the respondent did not in fact have regard to the factors set out at s. 3 (6) of the Immigration Act, 1999. In the case of "GK" and Ors. v. The Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418, Supreme Court, Hardiman J., delivering the judgment of the Court, held that a person claiming that a decision making authority had, contrary to its express statement, ignored representations which it had received, needed to produce some evidence either direct or inferential of that proposition before he could be said to have an arguable case for leave to seek Judicial Review.
It will be recalled that an application for a Certificate of Naturalisation was resubmitted by Daniel Spring and Company, Solicitors on behalf of the first named applicant on the 13th May, 2003. This application was refused on 21st May, 2003. This refusal was expressed in the following terms:
"Dear Sirs,I am directed by the Minister for Justice, Equality and Law Reform to refer to your client's application for a Certificate of Naturalisation.
The Minister has considered the application under the provisions of the Irish Nationality and Citizenship Acts, 1956 and 1986 and has decided not to grant a Certificate of Naturalisation.
There is no statutory fee payable for the processing of an application for naturalisation where such application is unsuccessful.
Yours sincerely,
Sharon Slattery
Citizenship Section
21st May, 2003."
The first named applicant pointed to the following matters as evidence that the respondent had failed to have regard to his family and domestic circumstances as required by s. 3 (6) (c) of the Immigration Act, 1999.
1. Almost 11 months elapsed between the date of the ad misericordiam application on 26th March, 2002 and the date of the marriage on 20th February, 2003. There is no mention made of the intended marriage in the Examination of the File under Section 3 of the Immigration Act, 1999, made by Mr. David Keogh, as Clerical Officer in the Repatriation Unit on 14th February, 2003 under the heading, "Section 3 (6) (c) Family and Domestic Circumstances of the person." The Deportation Order was made on 10th March, 2003. The clear inference to be drawn from the foregoing is that the Deportation Order was a reactive response to the fact of the marriage and that the respondent did not take into account in determining whether to make that Order the material change on the facts, including the position of the second named applicant. Accordingly, the respondent did not reach his decision in a fair and proper manner and did not observe fair procedures. Council for the applicants referred to the decision in OJO. v. The Minister for Justice, Equality and Law Reform and Ors. – High Court – 8th May, 2003 – per., Finlay Goeghegan, J.
2. The report of Detective Sergeant Sean Cullen dated 21st November, 2002 and the Submissions to the respondent from Steven Bonnlander, an Executive Officer of the Repatriation Unit, dated 17th February, 2003, improperly and without any evidence categorised the proposed marriage of the first named applicant to an Irish National as being with a view to ensuring that he was able to remain in the State. Because of the extreme prejudice likely to have been caused to the first named applicant by these matters, the respondent could not be fairly said to have considered the material change of circumstances in the family and domestic circumstances of the first named applicant on its merits.
3. No queries were raised by or on behalf of the respondent in respect of the application by the first named applicant for a Certificate of Naturalisation resubmitted by Daniel Spring and Company, Solicitors, on 13th May, 2003, even though in that application Aileen Fleming, Solicitor wrote as follows:-
"...you might revert to advise what if any further documentation is required. For example we have some wedding photographs on file which you may care to consider. Lastly our client's Temporary Residents Certificate Card is now expired. In the circumstances we presume that a renewed card will be issued to him while this application is being processed.
Should you have any queries in relation to the above matter please don't hesitate to contact the writer."
4. The Application Form under the Irish Nationality and Citizenship Act, 1956, (Form VIII) required that references from three Irish Citizens should be furnished.
Three persons, each of whom stated that she had known the first Named applicant personally for one year or more and could vouch for his good character and was prepared to support his application for naturalisation as an Irish Citizen, signed the form as referees.
At paragraph 16 of the Grounding Affidavit sworn by Aileen Fleming on behalf of the first named applicant on the 9th July, 2003, the Deponent swears that she says and believes and is so informed that none of those individuals was contacted by or on behalf of the respondent.
5. At paragraphs 17 of that Grounding Affidavit, Aileen Fleming, swears as follows:-
"Subsequently I received a letter dated 21st May, 2003, from the respondent's Citizenship Section stating: "The Minister has considered the application under the provisions of the Irish Nationality and Citizenship Acts, 1956 and 1986, and has decided not to grant a Certificate of Naturalisation. There were no reasons set out for this decision."
So far as the last three matters are concerned in my judgment these are altogether irrelevant to the determination by the respondent whether or not to make the Deportation Order in this case. They are all events which occurred more than two months after the making of the Deportation Order. The fact that the Notification pursuant to s. 3 (3) (b) (ii) of the Immigration Act, 1999, was not received by the first named applicant until 9th May, 2003, does not alter the situation. In any event that notice also anti-dates all of these matters. As the application by the first named applicant was made within three years of his marriage to the second named applicant by s. 16 of the Irish Nationality and Citizenship Act, 1956, as substituted by s. 5 of the Irish Nationality and Citizenship Act, 1986, the respondent has an absolute discretion in the matter of granting or refusing the application. The Acts of 1956 and 1986 do not impose on the respondent a statutory obligation to give reasons for his decision. I am satisfied that there is no constitutional or legal obligation on the respondent to give specific reasons for his refusal to grant the Certificate of Naturalisation. (See Laurentiu v. Minister for Justice [1999] 4 IR 26 per., Geoghean, J., at 34).
As to the first matter, at paragraph 12 of his Replying Affidavit sworn on 20th November, 2002, by Michael Flynn, Assistant Principal Officer, in the Department of Justice, Equality and Law Reform, to which I have already referred, he swears that the respondent was aware that the first named applicant intended to marry the second named applicant. He refers to the Submissions to the respondent dated 14th February, 2003, and 17th February, 2003. While the submission of the first supervisor, Mr. David Keogh dated 14th February, 2003, makes no reference to this intended marriage that of the second supervisor, Mr. Stephen Bonnlander dated 17th February, 2003 does. Mr. Bonnlander states:-
"Mr. L… has failed at every stage of the asylum process to date, and this Department has received information that he intends to marry an Irish National on 20/02/03 or shortly after, possibly with a view to ensuring that he remains in the state."
Mr. Bonnlander gives and exhibits as his source a Report from Detective Sergeant Sean Cullen dated 21st November, 2002, forwarded to the Immigration Division of the Department of Justice, Equality and Law Reform under cover of a letter from Detective Superintendent Gerard Cadden dated 30th December, 2002.
The report of Detective Sergeant Sean Cullen is in the following terms:-
"As a result of inquires carried out by D/Garda Sinead Reilly, it has been established that [the applicant] has a notice lodged of his intention to marry with the Registrar of Civil Marriages in Sir Patrick Dunne's hospital, Dublin. His intended bride is [the second named applicant]. A date for the ceremony has not been set.
(The first named applicant) is originally Algerian. He came to Ireland and made an application for consideration as a refugee in April, 2000. He has failed at every stage of the asylum process to date.
There is no information available on the relationship between (the first named applicant and the second named applicant). However, it is known that (the second named applicant) is a member of the travelling community living at a halting sit in Terenure. There is no date set for the wedding yet as (the second named applicant) with not be eighteen until 20th February, 2002, and therefore cannot marry before this date without a court exemption. It is anticipated that (the first named applicant) will apply for permission to remain in the country on the basis of his marriage to an Irish national.
Forwarded for your information and that of the Department of Justice."
On the face of the evidence therefore it is clear that there was information before the respondent in the period of up to three weeks prior to the making of the Deportation Order which indicated that the first named applicant intended to marry the second named applicant on 20th February, 2003, or shortly thereafter. At paragraph 12 of his Replying Affidavit dated 20th November, 2003, Mr. Michael Flynn swears that the respondent was aware that the first named applicant intended to marry the second named applicant. The Submission of the second supervisor, Mr. Stephen Bonnlander, dated 17th February, 2002, is stamped "approved by Minister". At the third paragraph of the s. 3 (3) (b) (ii) Notice dated 8th May, 2003, it is stated that the respondent has had regard to the factors set out in s. 3 (6) of the Immigration Act, 1999, including the representations received on behalf of the first named applicant. As was pointed by Hardiman, J., at p. 176 of the Report of F. P. v. Minister for Justice [2002] 1 IR 164, the burden of establishing that the respondent did not consider the family and domestic circumstances of the first named applicant lies on him. I am not satisfied that it is reasonable to draw the alleged inference from the various time frames pointed to by the first named applicant. The Court must have regard to all the material shown to have been before the respondent and one cannot isolate and have regard only to the submission of the Mr. David Keogh while disregarding the submission of Mr. Bonnlander. I am satisfied that the first named applicant has failed to produce any evidence either direct or inferential which would justify this Court in concluding on the balance of probabilities that the respondent, contrary to what he stated in the s. 3 (3) (b) (ii) Notification did not consider the marriage or intended marriage of the applicants before making the Deportation Order in respect of the first named applicant.
As to the final matter upon which the first named applicant relies, it is important to bear in mind what was in fact stated in the Garda Report and the Second Supervisor's submission. Detective Sergeant Cullen merely states:-
"It is anticipated that L… will apply for permission to remain in the country on the basis of his marriage to an Irish National."
The first named applicant has a legal right to make such an application. This is given to him by s. 15 A of the Irish Nationality and Citizenship Act, 1956, as inserted by s. 5 of the Irish Nationality and Citizenship Act, 2001, and s. 16 of the Act of 1956, as substituted by s. 5 of the Irish Nationality and Citizenship Act, 1986. It would be indeed extraordinary given the history of his connection with the State if he did not do so. However, the author of the Garda Report does not state or even suggest that the intended marriage was not a real marriage and was a mere subterfuge to enable the first named applicant to obtain a Certificate of Naturalisation. It would be a very serious matter for a member of An Garda Síochána to make such an allegation without convincing evidence to support it.
Mr. Stephen Bonnlander in his Submission to the respondent dated 17th February, 2003, states:-
"… this Department has received information that he intends to marry an Irish National on 20/02/03 or shortly after, possibly with a view to ensuring that he remains in the State."
The author does not suggest that the first named applicant was intending to enter into some sort of "marriage of convenience", with the second named applicant in the hope of thereby becoming an Irish Citizen himself. In any event, even a totally genuine marriage to an Irish Citizen would not ensure that the first named applicant could remain in the State. This would be particularly so in this case where his application for asylum had been refused at first instance and on appeal and to his only right to remain in the State after the 26th March, 2002, was awaiting the decision of the respondent on the ad misericordiam representations made on his behalf by the Refugee Legal Service.
I am quite satisfied that there is nothing in the Garda Síochána Report or the Submission of the Second Supervisor which was so prejudicial to the first named applicant that it could not reasonably be said that the respondent was in a position thereafter to fairly and properly consider what was obviously a material change in the family and domestic circumstances of the first named applicant on its merits. The opinions of Detective Sergeant Cullen and Mr. Stephen Bonnlander, however well-found, were not in anyway binding on the respondent. In my judgment, there is nothing in either the Garda Síochána Report or in the Submission of the Second Supervisor from which this court could conclude that the respondent did not properly consider the family and domestic circumstances of the first named applicant, including the position of the second named applicant, when satisfying himself that an Order deporting the first named applicant would be reasonable and proportionate having regard to considerations of public policy including, "the State's policy in relation to the control of aliens who are not, on the facts of their individual cases entitled to asylum", (per., Hardiman, J., in F. P. v. Minister for Justice [above cited] p. 174). At pages 176 and 177 of the Report in F. P. v. Minister for Justice [above cited] Hardiman, J., held as follows:-
"Insofar as it is submitted that Article 41 s. 3 sub-s. 1 of the Constitution in some way precludes the respondent from deciding to deport one partner while the other's application for leave to remain is pending, I would reject that proposition. If this applicant's wife is successful in avoiding deportation she will be enabled lawfully to remain in the State but she will not therefore be obliged to do so. Only if it were thought arguable that the applicant's martial status restrained the respondent's freedom of action as a matter of law could this aspect of his circumstances avail him on the present applicant. The State's obligation to protect with special care the institution of marriage and protect it against attack cannot, in my view be invoked to limit the respondent's discretion in relation to an individual applicant whose applicant for asylum has been refused.".
I am not therefore satisfied that the first named applicant has shown "substantial grounds", that is "reasonable, arguable and weighty grounds", (see In The Matter of the Illegal Immigrants (Trafficking) Bill, 1999, Reference [2000] 2 IR 360 at 394), for contending that the Deportation Order in respect of him made on 10th March, 2003, is invalid or ought to be quashed.
The court will therefore refuse this application for leave to seek Judicial Review.