High Court of Ireland Decisions

Judgment Title: O. & Ors -v- MJELR

Neutral Citation: [2010] IEHC 343


High Court Record Number: 2010 93 JR

Date of Delivery: 01/10/2010

Court: High Court

JUDGMENT of Mr. Justice Cooke delivered the 1st day of October, 2010.

1. This is an application for leave to seek judicial review of a deportation order made against the first named applicant by the respondent under s. 3 of the Immigration Act 1999 on 18th November, 2009, (the “Contested Order”). An injunction to restrain implementation of that order pending the determination of the present proceeding is also sought.

2. The background to the proceeding can be briefly stated. The first named applicant (“Mr. O.”) is from Nigeria. He arrived in the State in October, 2002 and claimed asylum. That application was ultimately unsuccessful and he was refused a declaration of refugee status by the respondent under s. 17 of the Refugee Act 1996 (the “1996 Act”). He is thus a person to whom s. 3 (2) (f) of the 1999 Act applies and in respect of whom a deportation order may be made.

3. Mr. O is married to the second named applicant (“Mrs. O.”) who is a native of South Africa. She arrived in the State in March 2002. They have together five children (the above minor applicants) of whom the three eldest (the third, fourth and fifth named applicants) are Irish citizens having been born in the State respectively in 2002, 2003 and 2004. Mr. O. also has two children from a previous relationship who have remained in Nigeria. The Court has been given no information as to their circumstances or as to what role, if any, Mr. O. plays in their upbringing or support. According to Mr O’s asylum application, he also has parents, two brothers and three sisters who live in Nigeria. In his affidavit of 17th February, 2010 in this proceeding he mentions that his father was given permission to be in the State until 6th April, 2010, apparently for the purpose of seeking medical treatment.

4. On the basis of her being the mother of the three eldest children, Mrs. O. has been granted permission to remain in the State which is currently valid until 3rd November, 2010. However, Mr. and Mrs O., while still married, have been estranged and separated since at least an unspecified date prior to May 2008 and Mr. O. no longer lives with this family. He claims, however, that he and his wife are still on good terms and that he is involved in the upbringing of all of the children and makes a weekly maintenance contribution to their support. Although joined as a party in the proceeding, Mrs O. has not chosen to provide any affidavit evidence on the matters advanced in relation to the family by her husband.

5. Mr. O. was also granted permission to remain in the State on the same basis originally for two years from 3rd November, 2005 and then up to 3rd November, 2010 but this was revoked by letter of 23rd July, 2008 from the Irish Naturalisation and Immigration Service (INIS) upon grounds which were stated in that letter in the following terms:

“You were informed by letter dated 14 November 2007 that your permission to remain in the State had been renewed for a further three years until 3rd November, 2010. As you are aware this permission was conditional and subject to the results of inquiries as to whether you have obeyed the laws of the State or have been convicted of any offence. You were advised that your permission to remain in the State may be revoked if you are found to have given false or misleading information in the course of your renewal application. This office has been advised that you have been convicted of several offences since being granted permission to remain in the State. These were not disclosed on your renewal application form. I am satisfied that you are a person who has not been of good behaviour in the State and who has provided false and misleading information in your renewal application. On this basis you do not meet the criteria for granting permission to remain in the State and your permission is hereby revoked. I am directed by the Minister for Justice, Equality and Law Reform to refer to the letter of 11 September 2003 stating that the Minister proposes to make a deportation order in respect of you, in accordance with s. 3 of the Immigration Act 1999, as amended. … You are invited to update any representations you may already have made in response to the letter referred to and to make any further representations if you so wish.”

7. In January, 2009 Mr. O. consulted a third firm, Messrs. A.C. Pendred & Co. who wrote, without any further explanation of their intervention, asking to be furnished with a copy of his file. This letter described Mr. O. as having a “previous address of 28, [W] Road, Lucan, Co. Dublin” but gave no current address for him. On 11th March, 2009 without having received the file from either of Mr. O.’s previous solicitors, A.C. Pendred wrote making a brief representation on his behalf. This letter referred to him as being “previously of 41, [S]… House, Clonee, Dublin 15” but gave no current address for him.

8. On 2nd September, 2009 the INIS wrote to Mr. O. advising him of his entitlement to apply for subsidiary protection under the European Communities (Eligibility for Protection) Regulations 2006 (the “Regulations”). That letter addressed to him at 78, [L] Park, was apparently returned marked “not called for”.

9. On 18th November, 2009 the contested deportation order was made and was sent to the applicant by letter of 27th November, 2009 and copied to Messrs. A.C. Pendred & Co. It included by way of statement of the Minister’s reasons for his decision the memorandum of examination of the file under s. 3 of the 1999 Act (“the File Note”). The File Note runs to some 33 pages of which approximately 16 pages consist of extracts from documentation consulted by the writer by way of country of origin information.

10. Mr. O. has sworn that he did not receive the letter of 27th November, 2009 and only became aware of it on some unspecified date in December, 2009 when he went to the GNIB to have his passport stamped. He does not say that the letter was not received by A.C. Pendred & Co. but appears to invite the Court to infer that A.C. Pendred & Co. failed to inform him of it because he does not mention having had any further contact with that firm and says that he changed to yet a further firm, his present solicitor, Kevin Tunney “because of the lack of information from my previous legal representative”.

11. On 3rd February, 2010, when the applicant called to the GNIB he was detained for the purpose of deportation but then released and required to report again on 17th February, 2010. The present proceeding was then initiated by his current solicitor on the same day.

12. An issue therefore arises as to whether if leave is to be granted an extension of time for the purpose of making the application is required and if so whether “good and sufficient reason” for extending the period of fourteen days fixed by s. 5 of the Act of 2000 has been established. If Mr. O. admits knowing of the order in December, 2009, it is clear that an extension of at least one month may be required and it has been strongly urged on behalf of the Minister that no explanation let alone any good and sufficient reason has been put forward which would justify extending the period. Without questioning the force of that argument the Court considers it appropriate to examine first the merits of the issues proposed to be raised having regard to the significance which the deportation order may have for the applicant’s family. It is thus necessary to outline the analysis made in the File Note and the reasons given by the Minister for his decision and then to consider the grounds proposed to be raised as to why the decision is unlawful and ought to be quashed.

13. The File Note extends over 33 pages and is signed by an executive officer of the Repatriation Unit on 10th November, 2009 and then countersigned as approved by superior officers on subsequent days. It comprises broadly three sections:

(a) A consideration of the matters required to be taken into account under the headings at s. 3 (6) (a) – (k) of the Act of 1999;

(b) Consideration of the statutory prohibitions in s. 5 of the Act of 1996 (Refoulement) and s. 4 of the Criminal Justice (U.N. Convention against Torture) Act 2000;

(c) Consideration of the factors and interest arising under Article 8 of the ECHR and the constitutional rights of the Irish citizen children under Articles 40, 41 and 42 of the Constitution.

(c) – Family and Domestic Circumstances:

It is noted that the first and second named applicants are married but living apart. Mrs. O. has permission to remain as mother of the citizen children and it is currently renewed until 03-11-2010. The other members of the family are noted as is the fact that the Irish citizen children would be entitled to Nigerian citizenship under the Nigerian constitution. The members of Mr. O.’s family in Nigeria are noted. It is recorded that Mr. O. claims to provide maintenance of €200.00 per week towards the family.

(d) – Connection with the State

Mr. O.’s connection with the State is said to lie in his asylum application, his parenthood of the three citizen children and his earlier permission to reside since November, 2005. The note then records the numerous convictions accumulated by Mr. O. and the circumstances which led to the revocation of his permission to remain for breach of the conditions of that permission and the failure to disclose the convictions when applying for renewal.

(e) (f) – Employment and Employment Prospects

Here Mr. O.’s education and work in Nigeria and the fact that he set up a business in South Africa which he later sold are recorded. It is noted that while he is not permitted by law to work in the State the representations indicate that he is presently working for a particular enterprise. There then follow extensive extracts from reports and information about the Irish economy which are quoted in support of the conclusion that the applicant’s “chances of obtaining legal employment in the current economic climate are poor”.

(g) – Character and Conduct

The various convictions acquired by the applicant between 2003 and 2008 are listed. The first being for the use of a false passport in 2003 which carried a sentence of 28 days imprisonment and the last in February, 2008 for possession of drugs for sale and supply for which Mr. O. is recorded as having been sentenced to six months imprisonment. (It was explained at the hearing that the former relates to the false South African passport held by the applicant on arrival in the State.)

(h) – Humanitarian Considerations

Under this heading the circumstances of the family are noted including information given on their behalf by Ceemex & Co. in their representations. This includes the fact that the children have been attending full-time in education in Ireland for a number of years and the comment is made: “However no further details have been submitted in relation to the children’s educational progress in the State. Given the young ages of these children it is reasonable to assume that Mr. O.’s children who are attending school are in the early stages of their primary education in the State.”

(i) – Representations

Here matters advanced by Ceemex & Co. are quoted including details of the “on/off relationship” which subsisted between Mr. and Mrs. O. The submission that Mr. O. plays an active part in the children’s lives and his active interest in their performance at school is noted as is the submission that if he is deported it will “severely disrupt their lives and cause psychological harm to the children who have made much progress and become accustomed to the Irish system of education”.

(j) – National Security and Public Policy

It is noted that national security has no bearing on the case but, by reason of the convictions, “public policy regarding the prevention of disorder in crime has a bearing on this case”.

16. In the third section of the File Note there is a lengthy and detailed analysis extending to some ten pages of the considerations arising in relation to the impact of the deportation on the family and its members from the point of view of Article 8 of the ECHR and, so far as concerns the citizen children, of their constitutional rights.

17. In dealing with Article 8 of the Convention the File Note acknowledges that the deportation would interfere with both the private life of Mr. O. and the family life of the applicants. In relation to the former, the author again recites the history of Mr. O. since arrival in the State, the revocation of his leave to remain; and the fact that he has developed strong links with the community while residing here and participating in the workforce. It is submitted, nevertheless, that the deportation is (i) in accordance with Irish law; (ii) pursues a pressing need and legitimate aim namely, to prevent disorder and crime and ensure the economic wellbeing of the country; and (iii) that, in terms of Article 8 (2) it is necessary in a democratic society in pursuit of that pressing need and is proportionate to the legitimate aim being pursued. That submission is then explained by reference to the convictions and Mr. O.’s poor prospect of obtaining employment not only because of the economic downturn in the country but of his criminal record which, it is said, “may inhibit his re-integration into society and perpetuate the cycle of offending”. It is said “Mr. O. has already demonstrated a high propensity to re-offend as he has been convicted of a substantial number of offences over a number of years which has resulted in his imprisonment in the State”. While it is acknowledged that the convictions “individually are not at the most serious end of the spectrum of criminal activity” it is nevertheless considered that “the nature, number and time span of the offences which include, inter alia, use of false passport, assault, possession of drugs for the purpose of sale and supply, no insurance, no road tax, etc. demonstrates that the applicant has shown a prolonged and flagrant disregard for the criminal laws of Ireland giving rise to a compelling public interest in his deportation”.

18. The conclusion in respect of interference with private life is then stated: “In weighing the rights of the applicant against these rights of the State, it is submitted that the deportation of the applicant is not disproportionate, as the State has the right to prevent disorder and crime and to protect the economic wellbeing of the country. This is a substantial reason associated with the common good and which requires the deportation of (Mr. O.).”

19. A corresponding analysis is then made under the heading of “Family Life” in which the circumstances of the family and the children are again recalled and weighed against the pressing need and legitimate aim being pursued by the State. The circumstances in which the convictions came to light and led to the reconsideration of the three year extension of permission to remain made in November, 2007 is described and the fact that the applicant has been working with a particular enterprise although not entitled to do so since the revocation. Under the heading “Balancing Rights” the rights of the State are then considered as against the circumstances of the children. Information obtained on primary and secondary education in Nigeria is set out and it is pointed out that there is an established functioning police force in Nigeria to enforce the rule of law; that there is a functioning healthcare system with government run public facilities where girls and boys have equal access to treatment as well as private health facilities. It is noted that Nigeria has ratified the Convention on the Rights of the Child. This passage then includes observations which were the subject of specific attack in the submission made to the Court:

“…should the Minister make a deportation order in respect of (Mr. O.) the disruption to the family life would not have the same impact as it would if the family had been living together as a family unit for a much longer time. In this regard it is noted that Mr. O. and his wife are now separated and that Mr. O. is no longer living with his children as a family unit in the State. Furthermore, Mr. O. has been convicted of a substantial number of offences over a number of years, which has resulted in his imprisonment in the State, therefore, he was not actively involved in the upbringing of his children for a notable period of time in their lives.”

“Having weighed and considered all of the factors outlined above relating to the position of the family and in particular (the Irish citizen children) as well as factors relating to the rights of the State, it is submitted that the factors relating to the rights of the State are weightier than those factors relating to the rights of the individual family. In weighing the rights of the applicant and his family against the rights of the State, it is submitted that the deportation of the applicant is not disproportionate as the State has the right to prevent disorder and crime in the State and to protect the economic wellbeing of the country. This is a substantial reason associated with the common good which requires the deportation of (Mr. O.).”

22. It is against those reasons for the decision that the present application is brought for leave to challenge the content of the File Note supporting the decision as unlawful. Of the eleven grounds put forward in section (d) of the Statement of Grounds, a number are of an introductory or general character and do not identify any specific basis of illegality in the decision but allege that “the reasoning and analysis is unsatisfactory” or there has been a general “failure to respect the rights under Article 8 of the Convention or Article 41 of the Constitution”. The Court considers that an application for leave to review a reasoned decision of this nature is inadequate and cannot be considered to raise a substantial ground to the extent that it contents itself with general assertions of that kind and fails to identify specific flaws or illegalities. The Court considers that it is therefore unnecessary to consider the grounds sought to be raised at paragraphs d) A, D, K and J of the Statement of Grounds dated 1st February 2010. Of the grounds which are sufficiently specific to be considered as a basis for the grant of leave, the issues raised can be paraphrased as follows:

(1) The Minister failed to have due regard to the fact that the minors are children of a Nigerian father and a South African mother and/or in that regard did not adequately consider the impact upon them of the deportation in the particular context of the mother’s own background and/or that of the other family members.

(2) The determinations of the Minister are made on incorrect information and deductions.

(3) The Minister failed to consider the circumstances of Mr. O. vis-à-vis his children including the nationality of the second named applicant but “contented himself” with pro-forma extracts about Nigeria and the Irish law without any proper application to the facts of the applicant’s case.

(4) There was no grave and substantial reason or pressing reason associated with public policy or the common good to warrant termination of (Mr. O.’s) residence in the State.

(5) The economic reasons detailed have no applicability to the case as Mr. O. has employment and there is no suggestion that he will lose that employment.

(6) The Minister failed to ascertain the views of Mrs. O. and the children or to ascertain the capacity of all of the applicants to express their own views.

(7) The Minister breached the European Convention of Human Rights Act 2003 with particular reference to Article 8 thereof (sic) and failed to respect the constitutional rights of the applicants and particularly those under Article 41.

24. This application for leave to review the Contested Order is, of course, covered by s. 5 of the Illegal Immigrants (Trafficking) Act 2000. The Court cannot grant leave unless if is satisfied that substantial grounds are shown for contending that the decision to make the deportation order is invalid and ought to be quashed as required by subs. (2) (b). In addition, as in this case the application has been brought some considerable time after the expiry of fourteen days following the date when the applicant admits having learned of the order in December, 2007, leave cannot be granted unless the Court considers that there is good and sufficient reason for extending the period of fourteen days limited by subs. (2) (a) of that section.

25. Having considered the submissions made by the parties at the initial hearing and noting the considerable emphasis placed by the applicants upon the proposition that the balancing exercise carried out by the Minister was flawed and necessarily distorted by particular errors such that the conclusion reached overall could not be said to be the proportionate result required by law, the Court considered it appropriate to raise with counsel the issue as to the correct approach to be adopted by the Court in such circumstances when assessing whether the arguments raised could constitute “substantial grounds” for the purposes of the test in s. 5 of the Illegal Immigrants (Trafficking) Act 2000. Having regard, in addition, to the judgments of the Supreme Court in Meadows v. M.J.E.L.R. (Unreported, 21st January, 2010), the Court invited the parties to make additional submissions as to how the “substantial grounds” test ought to be applied in the context of arguments which are, in effect, directed at the judgment made by the Minister when balancing the rights, interests and other factors which fall to be considered. The Court invited their submissions on the issue as to whether in considering whether “substantial grounds” are made out, it is permissible or appropriate to consider whether a ground is likely to be sustained at a substantive hearing having regard to the fact that in this particular context such a hearing would effectively amount to a rehearing of the issues considered upon the leave application. Counsel for the parties duly lodged written submissions in response to the Court’s invitation and further argument was heard at a resumed hearing on 11th June, 2010.

26. In dealing first with the criterion to be applied under s. 5 (2) (b) for the grant of leave, the High Court has on numerous occasions adopted for the purpose of that section the test originally articulated by Carroll J. in McNamara v. An Bord Pleanála [1995] 2 I.L.R.M. 125 when construing the same words as applied to applications for leave to seek judicial review under s. 82 (3B) of the Local Government (Planning and Development) Act 1963, as amended by s. 19 (3) of the Local Government (Planning and Development) Act 1992. Subsequent judgments invariably cite the description of “substantial grounds” from that judgment as being “reasonable, arguable, weighty and not trivial or tenuous” but it is useful to recall the full passage from which these terms come in the judgment of Carroll J.:

“In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are ‘substantial’. A ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial. I draw a distinction between the grounds and the various arguments put forward in support of those grounds. I do not think I should evaluate each argument and say whether I consider it is sound or not if I consider a ground, as such, to be substantial I do not have to say if the applicant is confined in his arguments at the next stage to those which I believe may have some merit.”

Section 43(5)(b)(iii) of the Waste Management Act 1996 –subsequently repealed:

Section 13(3) of the Irish Takeover Panel Act 1997:

Section 73(2)(b)(iii) of the Fisheries (Amendment) Act 1997:

Section 38(2) of the Aviation Regulation Act 2001.

Section 47(2) of the Transport (Railway Infrastructure) Act 2001.

28. The standard to be applied to applications for leave made ex parte under Order 84 was authoritatively defined by the Supreme Court in G. v. D.P.P. [1994] I.R. 374. The statement of the law by Finlay C.J. in that case at p.377 was reaffirmed by the Supreme Court in D.C. v. D.P.P. [2005] 4 IR 281 at 287 following a query that had been raised by Kelly J. in Gorman v. Minister for the Environment [2001] 1 IR 306 as to whether the test might not be different in cases where leave was applied for on notice to a respondent. That issue arose however where an application which otherwise fell to be made ex parte was directed by the court to be made on notice and was ruled upon after an inter partes hearing.

29. In the latter case Kelly J. had expressed some doubt as to whether the low ex parte standard would be appropriate also in cases of an inter partes hearing and referred to the approaches adopted in the English cases of Mass Energy v. Birmingham C.C. and R. v. Cotswold D.C. He explicitly refrained however from deciding the issue in that case, saying at page 310 of the judgment: “That approach appears to me to make a great deal of sense and to make more economical use of court time than the application of the substantially lower standard of arguable case to a hearing of this sort. This question must however wait to be decided on another day and in another case where the issue can be fully debated.”

30. In the D.C. v D.P.P. case the Supreme Court declined to alter the test applied to cases outside those where a specific and different statutory test falls to be applied. Denham J. warned of the danger of developing a multiplicity of different approaches to the test for the grant of leave under Order 84. Clearly, however, where a specific test for leave applications under that order is prescribed by statute for particular applications, it is the intention of the Oireachtas based upon an interpretation of that provision in the legislative context concerned which must determine the scope or level the test to be applied.

31. The present case is one in which such a statutory test falls to be applied and, when the approach of Carroll J. is transposed to the context of applications for leave to seek judicial review of decisions in asylum and deportation matters covered by s. 5 of the Act of 2000, there is, in the Court’s judgment, a further dimension which ought to be borne in mind.

32. In these matters the State is discharging obligations which it has undertaken in international law in the Geneva Convention on the Status of Refugees of 1951 and under European Union law in the form of the minimum qualification and procedural standards to be achieved by the Member States under Council Directives 2004/83/EC of 29th April, 2004 and 2005/85/EC of 1st December, 2005. Thus, decisions affecting the entitlement of a non-Union immigrant to be present or to remain in the State should be processed carefully, objectively and impartially but also with such expedition as is commensurate with ensuring that the process is not rushed or the consideration rendered is superficial or inadequate. In particular, where substantive administrative decisions have been taken, the circumstances of the addressee ought not to be left in suspense or uncertainty by appeal or review procedures which are unnecessarily protracted, complex or cumbersome. This imperative in respect of decisions to which s.5 applies was referred to by the Supreme Court when considering the constitutional validity of the bill: “All statutory instances where the ‘substantial grounds’ requirement have a common leitmotif: the need for legal certainty and the swift determination of the validity of the administrative measure impugned in the proceedings has been present.” (See Re: Article 26 of the Constitution & ss. 5 & 10 of the Illegal Immigrants (Trafficking) Bill 1999, [2000] 2 IR 360 at 381.)

33. There is therefore a material difference between the issues likely to arise in the legislative context of the 1996 Act as compared with the complex technical and regulatory issues that invariably arise in the context of the Planning Acts or the other statutes mentioned in paragraph 27 above.

34. It is clearly consistent with those considerations that the legislative purpose of s. 5 of the Act of 2000 of requiring leave to be applied for upon notice, should be construed and applied so as to ensure that the section operates as an effective filter so that only those cases in which grounds of clear substance with the potential of being sustained and requiring the more detailed examination of a substantive hearing in the light of pleaded grounds of opposition, should be submitted to the necessity of a further hearing. To put the matter another way, a ground advanced as the basis for obtaining leave cannot, in the judgment of the Court, be said to be substantial by virtue only of the fact that it is proposed to sustain it by arguments which are apparently serious or important, if it is clear to the Court at the leave stage where all relevant evidence is before the Court and following full argument between the parties, that the arguments are capable of a definitive answer which will not be altered by the pleading of grounds of opposition and by re-argument at a further hearing. In those circumstances the court is in as good a position on the leave application to assess the effect and adequacy of the evidence as it will be at a substantive hearing.

35. Counsel for the applicants submitted that a clear distinction must nevertheless be made between the issue at a leave hearing as opposed to the substantive hearing and that all that the Court can and ought to consider at the leave stage was whether the ground relied upon “ stands some chance” of being sustained. If it has some chance, the ground will be “substantial”. It is not relevant to consider whether the counter arguments of a respondent have merit. He relied in particular on the passage quoted above from the judgment of Carroll J. (see para 26,) where she distinguishes between the grounds relied upon and the merits of the supporting arguments and then says:

“It is not for me at this stage to decide whether the removal of the additional sand and gravel is a permissible modification of or a radical alteration of the original application. The arguments advanced by the Applicant may or may not succeed in the substantive hearing and I express no view on that but I do hold that the ground is substantial.”

“An application for leave to apply for judicial review is, as the description suggests, an application to the Court for access to the courts in order to have certain questions of law and fact litigated and determined by the Court. The only question to be decided in that context is whether the person should have liberty to bring such proceedings. There is no final determination of the merits of the applicant’s grounds. In that sense the Court does not have to accept that the grounds are valid grounds. That remains for the final determination in the substantive proceedings after leave is granted.”

37. As the Supreme Court pointed out, that was a fundamentally different legislative context of the use of the term “substantial grounds”. The proceeding before the High Court was itself a substantive proceeding by way of challenge to the extradition application and not merely an application for leave. As a result, the meaning to be attributed to the term “substantial grounds” did not follow from that attributed to it in judicial review proceedings but: “The question as to what may constitute ‘substantial grounds’ for the purposes of s.11 of the Act of 1965 is one which falls to be resolved in the context of the provisions and statutory purposes of that Act.” The same must be said, in the view of this Court, of the context and statutory purpose of s. 5 of the Act of 2000. Thus, in addition to the desirability of expedition and legal certainty in cases coming within the scope of that section already mentioned above (see paragraph 32,) that context includes, in applications relating to decisions to deport and determinations by the Refugee Appeals Tribunal, the fact that the background facts relating to an applicant’s circumstances and history will invariably have been the subject of examination already by that Tribunal and by the Office of the Refugee Applications Commissioner.

38. Thirdly, there is no denial of access to the Court when an application for leave is definitively rejected after full argument between the parties rather than at a second substantive hearing. The purpose of the requirement that leave be sought upon notice to the deciding authority is clearly that of enabling a definitive determination of the issues to be made at that point when it is possible to do so in cases where a further substantive hearing will make no difference to the determination. The right of access to the Court is a right to have the claim determined judicially: it is not a right to a particular form of hearing or to some minimum run of court appearances.

39. Accordingly, in the judgment of the Court where, on the hearing of a leave application under s.5, the ground advanced as substantial is fully argued between all the necessary parties; where the issues raised are not such as require to be refined by the delivery of pleadings; and the facts and arguments asserted do not require to be substantiated or rebutted by the adducing of further evidence: the ground will not be “substantial” in the sense of the McNamara judgment if it is already clear that the arguments submitted in support of it will not sustain it at a substantive hearing of the application. In such cases the Court considers that, given the asylum law context and legislative objective of s.5 of the Act of 2000 that an effective filter should operate, leave ought not to be granted. To so hold does not involve introducing a new or different test contrary to the advice of Denham J. (see paragraph 30 above,) but rather the application of the McNamara concept of reasonableness, arguability and weight to the particular statutory context and purpose of s. 5 of the Act of 2000.

40. It is necessary, therefore, to consider whether the grounds raised as to the illegality of this Contested Order are “substantial” in this sense. Is a reasonable, tenable and weighty case made out which requires a substantive hearing in order to determine definitively whether the Contested Order is legally flawed to an extent that requires that it be quashed?

41. As outlined above, (see paras. 22 and 23,) the broad thrust of the case made in that regard has two elements. First, the Contested Order is said to be vitiated by mistakes as to pertinent facts. The second challenge is directed at the manner in which the Minister is claimed to have weighed or to have failed to weigh various relevant factors relating to the circumstances of Mr. O. and his family members. It is proposed to argue that, in the result, the Contested Order is unlawful as unreasonable because of the alleged disproportion of the deportation sanction as compared with the obvious impact of that sanction on the wellbeing of the family and particularly upon the rights and interests of the Irish citizen children.

42. It is not disputed that there is indeed a mistake in the File Note. The Minister accepts that the note is in error in believing or assuming that the applicant had served a sentence of imprisonment for six months on foot of a conviction in the District Court on 6th February, 2006, for possession of drugs for the purpose of sale and supply. That sentence had in fact been suspended so that the term of imprisonment was not served. This, it is argued, is a material error which goes to the legality of the decision because it is relied upon to diminish the extent or duration of the applicant’s involvement with and his role in the life of his family.

43. Although it is true that, as a matter of fact, Mr. O. did not serve that sentence, it is clear that the error is not sufficiently material to the overall assessment made in the File Note to call in question the legality of the Contested Order. The only term of imprisonment served by Mr. O. was the 28 day term imposed on his arrival in the State for using a false passport. It is however, the fact of the conviction for the drugs offence in 2008 that is material to the consideration in the analysis of the File Note rather than the length or service of the sentence as such. This is evident from the significance attached to it in the comment as follows:

“While it acknowledged that Mr. O.’s convictions individually are not at the most serious end of the spectrum of criminal activity, looked at as a whole the nature, number and time span of the offences which include inter alia use of a false passport, assault, possession of drugs for the purpose of sale and supply, no insurance, no road tax, etc. demonstrate that the applicant has shown a prolonged and flagrant disregard of the criminal laws of Ireland, giving rise to a compelling public interest in his deportation.”

45. The second limb of the proposed challenge is, as already indicated, directed at the way in which the File Note assesses those facts, factors, circumstances and other considerations and in which it balances them against the declared interests of the State which the Minister seeks to pursue by ordering the deportation.

46. In the judgment of the Court it is not sufficient in order to raise a “substantial ground” in this context merely to allege in the face of a statement of reasons such as that contained in the File Note that the Contested Order is unreasonable because its consequence is disproportionate or that the analysis is unsatisfactory; or that the consideration of the representations was inadequate. The burden of establishing a specific illegality remains with the applicant.

47. In this regard the law has been definitively restated by the Supreme Court in the judgments in the Meadows case (see above para. 25). The majority judgments in that case make it clear that the test of “unreasonableness” in judicial review as the basis for obtaining an order of certiorari of any administrative decision is and remains that laid down by the Supreme Court in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642; and O’Keefe v. An Bord Pleanála and Others [1993] 1 I.R. 39. As the majority judgments in the Meadows case point out once again, Finlay C.J. expressed his “complete and precise agreement” in the Keegan case with the test enunciated there by Henchy J. namely: “whether the conclusion reached in the decision can be said to flow from the premises. If it plainly does not, it stands to be condemned on the less technical and more understandable test of whether it is fundamentally at variance with reason and common sense.” In the O’Keefe case Finlay C.J. (with whom the other members of the court agreed) reaffirmed that test and summarised the circumstances under which the court could intervene to quash a decision on grounds of unreasonableness or irrationality as follows:

“1. It is fundamentally at variance with reason and common sense.

2. It is indefensible for being in the teeth of plain reason and common sense.

3. Because the court is satisfied that the decision maker has breached his obligation whereby ‘he must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision’.”

49. This approach is clear from, inter alia, the following extracts from the majority judgments. Thus Murray C.J. says:

“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. … The principle requires that the effects on or prejudice to an individual’s rights by an administrative decision be proportional to the legitimate objective or purpose of that decision. Application of the principle of proportionality is, in my view, a means of examining whether the decision meets the test of reasonableness.”

“Accordingly, I am satisfied that the principle of proportionality has a legitimate and proper function in examining whether, in accordance with the principles of Keegan and O’Keefe, in particular those outlined by Henchy J., an administrative decision is valid.”

“While the test of reasonableness as described in Keegan and in O’Keefe did not expressly refer to a concept of proportionality, and while the term ‘proportionality’ is relatively new in this jurisdiction, it is inherent in any analysis of the reasonableness of a decision.”

“In a case where fundamental rights are in issue, such rights form part of the constitutional jurisdiction of the court in which a reasonable decision is required to be made and, if made, analysed. As Keane J. stated in Radio Limerick Ltd. v. I.R.T.C. [1997] 2 I.R. at p. 311-312, the disproportion between the gravity or otherwise of a breach of a condition attached to a statutory privilege and the permanent withdrawal of the privilege could be so gross as to render the revocation unreasonable within the (Keegan) formulation. Thus a decision could be so disproportionate as to justify the court in setting it aside on the ground of manifest unreasonableness.”

“It seems to me that the principle of proportionality, more fully developed in the judgments which have been delivered by the Chief Justice and of Denham J., can provide a sufficient and more consistent standard of review without resort to vaguer notions of anxious scrutiny. The underlying facts and circumstances of cases can and do vary infinitely. The single standard of review laid down in Keegan and O’Keefe is sufficiently responsive to the needs of any particular case. … I would say that a court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied, on the basis of evidence produced by the applicant, that the decision is unreasonable in the sense that it plainly and unambiguously flies in the face of fundamental reason and common sense. … This test, properly applied, permits the person challenging the decision to complain of the extent to which the decision encroaches on rights or interests of those affected. In those cases the courts will consider whether the applicant shows that the encroachment is not justified. Justification will be commensurate with the extent of the encroachment. The burden of proof remains on the applicant to satisfy the court that the decision is unreasonable in the sense of the language of Henchy J. The applicant must discharge that burden by producing relevant and cogent evidence.”

52. It is necessary, therefore, to determine whether the issues listed at para. 22 of this judgment can be said to raise one or more substantial grounds in this sense. Has the applicant established a tenable, reasonable and weighty case to the effect that, by reason of the issues thus raised, the Minister’s decision to deport him is fundamentally at variance with common sense because the deportation of the applicant in the circumstances put to and considered by the Minister is manifestly disproportionate having regard to the interest of the State which the Minister purports to safeguard?

53. In this regard the fundamental point already referred to in the quotation from Fennelly J. above bears repetition. The Court is not concerned with the merits of the Contested Order but with the legality of the process by which it has been reached. The making of the decision to deport under s. 3 of the Act of 1999 is the exclusive function of the Minister and the onus of establishing that it is legally flawed remains with the applicant. This fundamental characteristic of the Court’s function in judicial review is not altered by the fact that the infringement of the principle of proportionality is invoked. The Court cannot simply substitute its own assessment of what is proportional for that of the Minister. If the decision to deport is shown to “flow from the premises” that is, to be tenably based on the facts and factors before the Minister and considered by him, the Court cannot intervene. To put it another way, unless the balance struck as proportional by the Minister is fundamentally at variance with reason and common sense, his decision cannot be struck down as unlawful. In a further passage from his judgment in Meadows, the Chief Justice put the point as follows:

“I am of the view that the principle of proportionality is a principle that may be applied for the purpose of determining whether, in the circumstances of a particular case, an administrative decision may properly be considered to flow from the premises on which it is based and to be in accord with fundamental reason and common sense. In applying the principle of proportionality in this context I believe the court may have regard to the degree of discretion conferred on the decision maker. In having regard to the degree of discretion a margin of appreciation should be allowed to the decision maker in choosing an effective means of fulfilling any legitimate policy objectives.” (See also the further observation of the Chief Justice on the discretion exercised by the Minister in this context, quoted in paragraph 63 below.)

“An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken. That rationale should be patent from the terms of the decision or capable of being inferred from its terms and its context. … In my view the decision of the Minister in the terms couched is so vague and indeed opaque that its underlying rationale cannot be properly or reasonably deduced. … The decision is open to multiple interpretations which would include one that refoulement was not an issue and therefore did not require any discretionary consideration. On the other hand it may well be that the Minister did consider refoulement an issue and that there was evidence of the appellant in this case being subject to some risk of being exposed to F.G.M. but a risk that was so remote that being subject to F.G.M. was unlikely. … The fact remains that it is not possible to properly discern from the Minister’s decision the actual rationale on foot of which he decided s. 5 of the Act had been ‘complied with’. Accordingly, in my view there was a fundamental defect in the conclusion of the Minister on this issue.”

56. As already indicated above in this judgment (see paras. 14-20,) the File Note in this case has addressed in detail all of the relevant considerations required to be taken into account under s. 3 (6) of the Act of 1999 and has then considered, assessed and balanced the matters put to the Minister pertinent to the rights of the family members under Article 8 of the Convention and to the constitutional rights of the Irish citizen children. A substantial reason associated with the common good namely, the prevention of disorder and crime and the protection of the economic wellbeing of the State is expressly identified and, as already pointed out above in para. 21, the Minister’s officers have carefully followed the guidelines suggested for this exercise in cases such as Oguekwe.

57. In relation to all of these facts and considerations the following matters, for example, are not in dispute:

• Mr. O. does not live with Mrs. O. and the children and has been estranged from her since 2008;

• Mr. O. has acquired a series of criminal convictions for a variety of offences during his time in the State including one for possession of drugs;

• Although not permitted to work as an employee or in self-employment since the revocation of his permission to remain in the State in 2008, he has continued to do so illegally;

• Since his first arrival in the State Mr. O. has on at least four occasions voluntarily returned to Nigeria on visits without encountering any difficulty;

• Mr. O. has parents and siblings and two children from another relationship who live in Nigeria.

o While the convictions individually are not at the most serious end of the spectrum of criminal activity, the nature, number and time span of the offences demonstrate that the applicant has shown a prolonged and flagrant disregard for the criminal law of the State;

o Mr. O. has already demonstrated a high propensity to re-offend as he has been convicted of a substantial number of offences over a number of years which has resulted in his imprisonment in the State:

o Having weighed and considered all of the factors relating to Mr. O.’s private life as well as factors relating to the rights of the State, it is submitted that the factors relating to the rights of the State are weightier and that the deportation of the applicant is not disproportionate as the State has the right to prevent disorder and crime and to protect the economic well being of the country;

o Given the current economic downturn there is no guarantee that Mr. O. would secure employment legally.

60. In evaluating and balancing the rights of the family members under Article 8 and the constitutional rights and interests of the Irish citizen children, the File Note concludes:

• Deportation to the extent that it disrupts the family life would not have the same impact as if the family were living together as a family unit and had been doing so for a longer time;

• The children are entitled to Nigerian citizenship and would be entitled, should the family so decide, to accompany Mr. O. to Nigeria; equally as Mrs. O. has permission to remain in the State they are entitled to continue to reside and be brought up and educated here;

• In weighing the rights of the applicant and his family against the rights of the State it is submitted that the deportation of the applicant is not disproportionate as the State has the right to prevent disorder and crime in the State and to protect the economic wellbeing of the country. This is a substantial reason associated with the common good which requires the deportation of Mr. O.

62. Finally, for the sake of completeness it is appropriate to deal with the remaining specific points listed in para. 22 above as having been highlighted in the grounds and arguments relied upon.

(1) & (3). It cannot be said that there was any failure to take account of the fact that Mr. O. was Nigerian and that Mrs. O. was South African. The latter fact is expressly mentioned as is the fact that they had lived together in South Africa where Mr. O. had successfully established an internet café business which he later sold. Furthermore, no particular difficulty was raised in the representations made to the Minister by reference to the South African nationality of Mrs. O. As already indicated, although she has lent her name to this proceeding Mrs. O. has made no case as to the existence of any particular difficulty that she might face by reason of her South African nationality in the event of her wishing to accompany her estranged husband. It is well settled that the Minister is under no obligation to consider under the heading of humanitarian considerations, possibilities or scenarios that have not been put to him on behalf of an applicant. Nor can it be said, in the view of the Court, that the File Note assessment is inadequate in its reliance on what are characterised as “pro-forma extracts about Nigeria”. Having regard to the fact that no specific case was made in representations as to any particular problem that might be faced in Nigeria, the File Note has probably gone further than might have been strictly necessary in consulting relevant country of origin information in order to assess the circumstances, conditions and facilities (including education) that would be available to the family in Nigeria.

(4) The claim that there was no grave or substantial reason associated with the common good which justified the deportation is clearly unfounded. As already detailed in this judgment, a specific reason was explicitly identified by the File Note and justified by reference to Mr. O.’s criminal convictions and his unlawful working.

(5) The assertion that the economic reasons invoked have no application is also misconceived. The point made in the File Note is that Mr. O. has been working unlawfully and it is considered that in the current severe economic climate there is no guarantee that he would obtain lawful employment. Although no particular case was made to the Minister in representations under this heading, Mr. O. now says that he has two businesses in Phibsborough in Dublin, a newsagents and “Okwytex Enterprises” in which he has six employees. No information is given as to the nature of the latter business undertaking and no explanation advanced as to when and how the businesses were lawfully established by an individual who has had no permission to be either employed or self-employed since 2008. No attempt has been made to show that the businesses are VAT registered and otherwise tax-compliant. Furthermore, no mention appears to have been made of either of these businesses in the representations made on behalf of Mr. O. by Ceemex & Co. on 8th September, 2008 or by A.C. Pendred & Co. on 11th March, 2009.

(6) Finally, it is suggested that the Minister erred by failing to ascertain the views of Mrs. O. and the children. This proposition too, is misconceived. The Minister is under no obligation to solicit such views. Under s. 3 (3) of the Act of 1999 the Minister is obliged to notify a potential deportee of his proposal to make a deportation order and to consider any representations made to him in response. If the views of family members are to be relied upon, that is the means by which they are to be put before the Minister. As already commented upon in this judgment; such views as Mrs. O. may have in this case are unknown because she has not, although a party to the proceeding, at any stage, expressed them.

“In virtually every case there will be some humanitarian consideration and, unlike s. 5, even if he is of the opinion that there are humanitarian considerations which tend to support a claim that a deportee be permitted to remain, even temporarily, he is not bound to accede to such a request since he has to balance those considerations with broader public policy considerations which may not be personal to the person concerned. It is evident from the terms of the decision that he took all the relevant considerations into account but explained 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 the State’. This is quintessentially a discretionary matter for the Minister in which he has to weigh competing interests and only the Minister who has the responsibility for public policy in this area is in principle in a position to decide where that balance lies. One cannot rule out that there might be exceptional circumstances in which the principle of proportionality might arise but as a general rule the principle of proportionality would not arise for consideration in such cases and in any event the appellant has not shown that there is any basis for considering that there was any lack of proportionality in the decision taken by the Minister in this particular respect.”

65. Accordingly, if on an application for leave made on notice to the decision-maker, a substantial ground for the grant of leave is to be made out based upon an alleged lack of proportionality it is insufficient, in the judgment of the Court, merely to disagree with the balance struck in the impugned decision; or to assert that the result is untenable because greater weight or significance should have been given to some factors or less to others. It is at least necessary to demonstrate the existence of some specific factor which was material to the balancing exercise made which is demonstrably wrong or absent; or to identify some consideration which has been relied upon as material and which is irrelevant or has been improperly considered.

66. For the reasons outlined above in this judgment, the Court considers that this test has not been met and no substantial ground has therefore been made out as to the illegality of the Contested Order such as would justify the grant of leave. It is, accordingly, unnecessary to consider the application for an extension of time. The application for leave is refused as is the claim for an injunction.