Neutral Citation: [2017] IEHC 195
THE HIGH COURT
JUDICIAL REVIEW
[2016 No. 357 J.R.]
S. A. S., T. B. AND T. A. (A MINOR SUING BY HER FATHER AND NEXT FRIEND S. A. S.)
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT
JUDGMENT of Ms. Justice O’Regan delivered on the 16th day of March, 2017
Issues
1. The applicant secured leave by order of 20th June, 2016 to bring the within application for judicial review seeking to quash the decision of the respondent of 22nd March, 2016 when the respondent refused the application on behalf of the applicants for a join spouse visa and a join parent visa. The grounds upon which the relief is sought are as follows:-
(i) the respondent failed to take into account evidence of vouched savings and thereby breach fair procedure and natural justice and or the rules of constitutional justice;
(ii) failing to take the evidence of vouched savings into account the respondent unlawfully fettered her discretion;
(iii) paragraph 17.5 of the policy document gave rise to a legitimate expectation as to annualising savings;
(iv) a fourth ground had previously been included however because of para. 13 of the statement of opposition this aspect of the matter was not proceeded with;
(v) the respondent acted disproportionately and or irrationally concluding that the visas may result in a cost to public funds;
2. At the hearing of the action the claim based upon legitimate expectation was not pursued;
Background
3. The first named applicant is a national of Bangladesh and has resided in the State since 2003. He was born on 4th April, 1978. Initially he was granted permission to remain in the State on the basis of student permission however in 2014 he secured permission on the basis of stamp 4 conditions.
4. The first named applicant married the second named applicant on 15th February, 2008 and the third named applicant was born in Bangladesh on 24th November, 2009.
5. Prior to the making of the applications in May, 2015 the first named applicant had worked with Tesco but was made redundant at the end of 2014 and subsequently set up a company with his brother as of 4th March, 2015 from which the first named applicant pays himself a net salary of €550 per week.
6. When the application was first made the applicants demonstrated that the first named applicant had three bank accounts in Ireland with a total balance of in or about €35,000 in credit.
7. On 13th November, 2015 the application was refused and accordingly an appeal was lodged by letter of 22nd December, 2015. The appeal letter runs to five pages and although reference is made to the three bank accounts (the very same bank statements that were furnished to the first instance decision maker were furnished by way of appeal as opposed to any updated bank statement) however the letter of 22nd December, 2015 does not complain as to lack of reference to the money standing to the credit in the bank accounts in the first instance decision nor, as was pointed out by counsel on behalf of the respondent, does the letter suggest that these monies in fact represent savings. Further it is common case that the letter does not refer to para. 17.5 of the relevant policy document and significantly from the court’s point of view as to the money standing to the credit in the bank accounts the decision maker was advised that once the application had been refused there is now less than €35,000 however there is still a substantial amount of money in his account. The applicants were therefore content to process their appeal without identifying precisely how much money stood to the credit of the three bank accounts at the time of the appeal and no submission was included in the appeal document aforesaid as to how the unknown balance in the accounts might be dealt with in or about the assessment as to establishing the income threshold required by the policy document.
8. By a decision of the respondent of the 22nd March, 2016 the application by appeal was rejected.
Impugned decision
9. In the impugned decision under para. 2 there is an assessment under the policy document on non-EEA family reunification. Under this heading reference is made to an AIB bank statement in the name of the first named applicant from 24th April, 2015 to the 14th May, 2015, to a Bank of Ireland statement dated 18th May, 2015 identifying one lodgement made on 20th August, 2014 and to an Ulster Bank statement dated 5th January, 2013 to the 13th May, 2015. The decision notes that such documents were submitted at first instance and no new or updated financial documentation or information was submitted on appeal. The final remark then in para. 2 of the decision was to the effect that “Mr. S has failed to meet the financial threshold outlined in the policy document on family reunification”.
10. In the cover letter from the embassy of Ireland in Delhi of 15th March, 2016 it is stated that “having taken all documentation and information provided into consideration and it was decided that the original decision to refuse the visa should be upheld”.
Arguments
11. Counsel for the applicant did present arguments as to a lack of reasoning as to why the bank account funds were not annualised and made a further argument to the effect that insufficient weight was afforded to such funds. However the respondent raised the argument that these were not matters contained within the statement of grounds upon which leave was secured and in the circumstances counsel for the applicant graciously acknowledged such status.
12. The applicants complain that Para. 17.5 of the policy document did not feature at all in the decision. The respondent counters that neither did it feature in the notice of appeal of 22nd December, 2015.
13. The applicant argues that the purpose of the financial requirement was to ensure that families are not a burden on the State and therefore the Minister should have taken into account the money standing to the credit of the bank account. The Minister is obliged to apply the policy and relies on the matter of R. v. Ministry of Defence, ex parte Walker [2000] 1 WLR 806 to the effect that the policy conditions must be applied until altered. The applicant also relies on the Supreme Court judgment in Bode v. Minister for Justice and Equality [2008] 3 IR 663 to the effect that it is the duty of the Minister to consider each application. Reference is made to the judgment of McCarthy J. in Gutrani v. The Minister for Justice [1993] 2 I.R. 427 when he stated that the Minister having established a scheme would be bound to apply it to the appropriate cases and his decision would be subject to judicial review. McCarthy J. felt it was not a matter of legitimate or reasonable expectation but rather it was the procedure which the Minister had undertaken to enforce. In Latchford and Son v. The Minister for Industry and Commerce [1950] I.R. 33 it was held that inter alia once a policy document was published the Minister could alter the conditions from time to time or withdraw them but until alteration or withdrawal the conditions apply.
14. The applicant argues that in the absence of attributing a value to the bank account funds the decision was invalid and this is sufficient to quash the decision.
15. The respondent counters that no new evidence was furnished on appeal and given the fact that the decision was to the effect that all documents had been taken into account it was for the applicant to discharge the onus of establishing that that was not the case. The respondent refers to the Supreme Court decision in G.K. v. Minister for Justice [2002] I.R. 418 and in particular to the penultimate paragraph thereof which states:-
“A person claiming that a decision making authority has, contrary to its express statement, ignored representations which it has received must produce some evidence, direct or inferential, of that proposition before he can be said to have an arguable case.”
16. The respondent also relies on the judgment of Humphreys J. in G.I. v. Minister for Justice & Ors. [2015] IEHC 823 to the effect that if a decision on its face purports to have taken documents into account it is for the applicant to show otherwise. Humphreys J. also stated:-
“The right to a narrative discussion of the evidence submitted can only arrive if documentary evidence was being positively rejected, as opposed to a situation where it was insufficient to take the applicant over the line.”
17. The respondent points to the fact that in a judgment delivered on 23rd February, 2017 in the matter of A.S. v. Minister for Justice and Equality I endorsed the views of Humphreys J. aforesaid.
18. The respondent argues that the money standing to the credit of the bank accounts was not described as savings in the letter of appeal and very limited bank statements were furnished. The respondent accepted the applicants’ counsel statement to the effect that this was a very important decision from the point of view of the applicants and suggests that on that basis is was incumbent upon the applicants to make more fulsome submissions to the decision maker during the currency of the process.
Conclusion
19. Insofar as the applicant complains that the respondent failed to take any or any adequate account of the vouched savings and thereby breached fair procedures and natural justice it does appear to me that the decision demonstrates that the funds that had been in the bank inter alia in May, 2015 were clearly within the sight of the decision maker in making the decision and the letter states that all documents were taken into account.
20. No evidence has been furnished, save by inference that the monies were not taken into account. In this regard I am of the view that the applicant has no complaint to make given that the applicant in the notice of appeal acknowledged that the funds had been depleted but did not see fit to identify the precise amount standing to his credit at the date of the appeal and further did not make any representation upon which the respondent might annualise a then unknown amount of funds.
21. At the date of the appeal the bank monies were not in fact vouched. The precise credit sums at the date of the appeal were not advised to the respondent.
22. In the circumstances I am not satisfied that the applicant had demonstrated that the respondent has unlawfully fettered her discretion.
23. Furthermore in circumstances where the applicant did not see fit to update the respondent on the amount of the available funds to the applicant the applicant can not now argue that the respondent acted disproportionately and or irrationally.
24. By reason of the foregoing I refuse the requested order of certiorari to quash the decision of the 22nd March, 2016.
