[2019] IEHC 376
THE HIGH COURT
JUDICIAL REVIEW
[2017 No. 444 J.R.]
Z.A.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY,
RESPONDENT
JUDGMENT of Mr Justice David Keane delivered on the 30th May 2019
Introduction
1. This is the judicial review of a deportation order made against the applicant by the Minister for Justice and Equality (‘the Minister') on 21 April 2017, under s. 3(1) of the Immigration Act 1999, as amended (‘the Act of 1999'), and furnished to him under cover of a letter dated 4 May 2017.
Background
2. The applicant is a male Nigerian national who was born in 1994. He entered the State in 2001, when he was 7 years old. His mother and siblings are Irish citizens by naturalisation and, in the case of one of his siblings, by birth. His father is deceased. He attended primary school and secondary school in the State and has attained some post Leaving Certificate educational qualifications. He currently plays sport at a very high level but cannot do so professionally because he does not have permission to work in the State. He is single.
3. Until he turned sixteen in 2010, the applicant had leave to remain in the State as a dependant of his mother. Thereafter, he received permission to remain in his own right for successive periods until his solicitors sought the further renewal of that permission on his behalf by letter, dated 25 June 2014; a request acknowledged on behalf of the Minister by letter, dated 11 July 2014.
4. However, on 31 October 2014, the applicant appeared for sentence before Dublin Circuit Criminal Court on a plea of guilty to three separate charges comprising two counts of attempted defilement of a child under the age of 17 years, contrary to s. 3(2) of the Criminal Law (Sexual Offences) Act 2006, and one count of sexual assault, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. The convictions relate to incidents that occurred on two separate dates in March 2010 involving the same injured party. The applicant was sentenced to a concurrent term of two years' imprisonment on each of those counts, but those sentences were each suspended for a period of three years on condition of good behaviour.
5. As the applicant acknowledges in an affidavit that he swore in these proceedings on 27 October 2017, he was one of six persons convicted of sexual offences arising out of various incidents involving the same 14-year-old complainant that occurred in February and March 2010, when the applicant was 16 years old.
6. While the applicant has no entitlement per se to anonymity in these proceedings, the earlier criminal prosecution would have attracted the reporting restrictions imposed under s. 252 of the Children Act 2001 to protect the entitlement to anonymity of the complainant child. Similarly, because it concerned a ‘sexual assault offence', the anonymity of the child complainant in the earlier prosecution was also expressly protected under s. 7 of the Criminal Law (Rape) Act 1981, as amended. Lest the identification of the applicant in this case should lead indirectly to the identification of the injured party in that case, in breach of either of those provisions, I have substituted initials for the name of the applicant in the title of these proceedings for the purpose of the present judgment.
7. On 17 November 2014, a detective superintendent in the Garda National Immigration Bureau (‘GNIB') wrote to the Irish Naturalisation and Immigration Service (‘INIS'), setting out the circumstances of the offences committed by those six persons (including the applicant), each of whom is a non-EU national, to assist the Minister in considering whether to grant a further residence permission, revoke an existing one, or propose the making of a deportation order, as the case may be (‘the GNIB report').
8. On 26 February 2015, the INIS wrote to the applicant on behalf of the Minister, notifying him, in accordance with the requirements of s. 3(3)(a) of the Immigration Act 1999, as amended (‘the Act of 1999'), of the Minister's proposal to make a deportation order against him.
9. On the following day, 27 February 2015, the applicant was convicted in the Dublin Metropolitan District Court of the offence of driving without insurance on 15 July 2014 and that of driving on a motorway on a provisional, rather than full, driving licence on the same date. The applicant was fined €300 on the first charge and the second was taken into consideration.
10. Through his solicitors, the applicant made representations to the Minister against his deportation, forwarding a range of supporting documents, on various dates between March 2015 and March 2016.
11. On 24 March 2016, a departmental official produced a 47-page examination of the applicant's file, culminating in a recommendation in favour of deportation. A deportation order was made on 6 April 2016.
12. That order was challenged in judicial review proceedings brought on behalf of the applicant. In circumstances that have not been disclosed to the court by either side in the present application, those proceedings were compromised on 7 November 2016 and the deportation order was revoked two weeks later.
13. On 24 November 2016, the Minister wrote to the applicant, through his solicitors, to notify him that the deportation order against him had been revoked and that a fresh consideration would be carried out concerning the proposal to deport him. A copy of the GNIB report was enclosed, redacted to protect the identity of the injured party and those of the other persons involved. The applicant was invited to make any observations on that report and any other representations he might wish within a further period of fifteen days.
14. The applicant's solicitors replied at length on 15 December 2016, including a copy of the order of conviction of the applicant, though not a copy of the bill of indictment against him or of the transcript of his sentencing, and objecting, in substance, to any reliance being placed upon the contents of the GNIB report in circumstances where, they asserted, it contains allegations of conduct by the applicant for which he was never charged or prosecuted.
15. On 7 April 2017, a departmental official produced a fresh 34-page examination of the applicant's file, once again culminating in a recommendation in favour of deportation (‘the file note'). A deportation order was made on 21 April 2017. That is the order challenged in these proceedings. It was furnished to the applicant under cover of a letter to him from the INIS, dated 4 May 2017. That letter informed the applicant that he was obliged to leave the State by 4 June 2017 and, failing that, to present to the Garda National Immigration Bureau on 7 June 2017.
A brief overview of the file note
16. The file note commences by considering each of the eleven discrete matters that the Minister is obliged to take into account under s. 3(6) of the Act of 1999, with appropriate regard to the representations that had been made on behalf of the applicant, as required under s. 3(3)(b)(i) of that Act. Next, it addresses sequentially: the potential application of the principle of non-refoulement under s. 5 of the Refugee Act 1996 or s. 4(1) of the Criminal Justice (United Nations Convention Against Torture) Act 2000; the applicant's right to private life under Article 8 of the ECHR; his right to family life under Art. 8 of the ECHR; and the constitutional rights of the applicant's family members in Ireland, before recommending, in conclusion, that, on the balance of rights and interests, the Minister should make a deportation order against the applicant. To that extent, the file note closely follows the broad approach to the consideration of a deportation order proposal and the representations made against it that was commended by the Supreme Court in Dimbo v Minister for Justice [2008] IESC 26, (Unreported, Supreme Court, 1st May, 2008) and Oguekwe v Minster for Justice [2008] 3 IR 795.
17. In considering the applicant's right to respect for his private and family life under Art. 8 ECHR, the author of the file note expressly adopted the approach to that analysis recommended by Bingham LJ for the United Kingdom House of Lords in R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368. In doing so, the file note engages in extensive analysis, before concluding that: (i) deportation will be an interference with the private and family life of the applicant; (ii) the level of interference it involves will engage Art. 8 ECHR; (iii) deportation will be in accordance with law under s. 3 of the Act of 1999; (iv) the interference with the applicant's rights that deportation represents is necessary to prevent disorder and crime in the State as a democratic society; and (v) that the interference with the applicant's rights that deportation represents is proportionate to that pressing social need and legitimate public end.
Procedural history
18. By order made on 29 May 2017, O'Regan J granted the applicant leave to seek judicial review of the deportation order. The application was originally based on a statement of grounds, dated 25 May 2017, subtended by an affidavit sworn by the applicant on the previous day. In accordance with the order of O'Regan J, a notice of motion issued on 5 July 2017, returnable five days later. The Minister's statement of opposition, dated 5 October 2017, was filed the following day. It is grounded upon the affidavit of Alan King, an assistant principal officer in the Repatriation Division of the INIS, sworn on 6 October 2017.
19. The applicant swore a further short affidavit on 27 October 2017, as a result of which Humphreys J permitted him to amend his statement of grounds by order made on 13 November 2017. An amended statement of grounds was subsequently filed, although the copy before the court is undated. The Minister filed an amended statement of opposition, dated 1 December 2017, on 4 December 2017. Mr King swore a verifying affidavit concerning its contents on the same date. Finally, on 14 December 2017, Mr King swore a supplemental affidavit exhibiting as a form of discovery various reports concerning the applicant that had passed between the GNIB and the INIS.
The grounds of challenge
20. As with many other applications for judicial review in the immigration and asylum list, the applicant contends that the decision under challenge (in this case, the deportation order) is subject to a broad and eclectic range of infirmities.
21. Hence, in the written submissions made on his behalf, the applicant contends: first, that the Minister's decision was unreasonable or irrational, both in general and, in particular, because the applicant's deportation is an interference with his private and family life disproportionate to the societal interests and rights of others that are invoked to justify it as necessary; second, that the Minister took into account irrelevant considerations and failed to take into account relevant ones; third, that the Minister's decision is based on a fundamental error of fact (although this was not a ground upon which leave to apply for judicial review was sought or granted); fourth, that the Minister's decision was made in breach of the applicant's entitlement to natural and constitutional justice and fair procedures; and fifth, that the decision was discriminatory. In his statement of ground, the applicant also asserts that the decision is invalid because the procedure under the Act of 1999 by which it was made breaches the requirements of Article 8 of the European Convention on Human Rights by failing to provide an independent appeal. Although that ground, while pleaded, was not addressed in the applicant's written submissions, it did appear that counsel for the applicant briefly flirted with it in the course of oral argument.
Analysis
i. reasonableness and proportionality
22. In Meadows v Minister for Justice [2010] 2 IR 701, the Supreme Court considered the principles that govern the judicial review of administrative decisions on reasonableness grounds. Murray CJ stated (at 723):
‘[56] In doing so the court may examine whether the decision can be truly "said to flow from the premises" as Henchy J., put it in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642. If not it may be considered as being "fundamentally at variance with reason and common sense".
[57] 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. It is already well established that the court may do so when considering whether the Oireachtas has exceeded its constitutional powers in the enactment of legislation.
[58] 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. I do not find anything in the dicta of the court in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 or O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 which would exclude the court from applying the principle of proportionality in cases where it could be considered to be relevant.'
23. In considering the test of reasonableness that must be applied to administrative decisions, Denham J produced the following summary (at 743-4): ‘[144] The relevant factors in the general test are as follows:-
(i) in judicial review the decision-making process is reviewed;
(ii) it is not an appeal on the merits;
(iii) the onus of proof rests upon the applicant at all times;
(iv) in considering the test for reasonableness, the basic issue to determine is whether the decision is fundamentally at variance with reason and common sense;
(v) the nature of the decision and decision maker being reviewed is relevant to the application of the test;
(vi) where the legislature has placed decisions requiring special knowledge, skill, or competence, for example as under the Planning Acts, with a skilled decision maker, the court should be slow to intervene in the technical area;
(vii) the court should have regard to what Henchy J. in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 referred to as the "implied constitutional limitation of jurisdiction" in all decision making which affects rights. Any effect on rights should be within constitutional limitations, should be proportionate to the objective to be achieved. If the effect is disproportionate it would justify the court setting aside the decision.'
24. Cooke J had the following to say about challenges to deportation decisions on reasonableness, including proportionality, grounds in the case of ISOF v Minister for Justice [2010] IEHC 386, (Unreported, High Court, 2nd November, 2010), (at para. 12): ‘As counsel for the applicants acknowledged during argument, the High Court has, since the handing down of the judgments in Meadows , pointed out in a number of judgments that in order to substantiate a challenge to a decision of this nature as irrational or unreasonable because of its disproportionality, it is not sufficient merely to disagree with the evaluation made or the balance struck in the File Note. (See for example S.O. & O.O. v MJELR ( Unreported, Cooke J. 1 October 2010 ) It is not enough, in the view of the Court, to simply assert that the Minister ought to have given greater weight to some factors or less to others. The onus of establishing the unlawfulness of the decision lies with the applicant. The duty to balance proportionately the opposing rights and interests of the family on the one hand and the interests the State seeks to safeguard on the other, lies with the Minister. It is the Minister who must assess and decide by reference to all of the matters he is required to consider under the statutes and in light of all of the information and representations put before him, whether the latter interests should prevail or not. Contrary to the implication of the argument made by counsel for the applicants, the High Court is not entitled or obliged to re-examine the case with a view to deciding whether, in its own view, the correct balance has been struck. To do so would be to substitute its own appraisal of the facts, representations and circumstances for that of the Minister. As the Supreme Court made fully clear in the Meadows case, the test to be applied in assessing whether an administrative decision of this nature is irrational or unreasonable (including unreasonable by virtue of disproportionality,) remains that established in the Keegan and O'Keefe cases. Accordingly, the function of the Court is to consider the manner in which the evaluation has been made by the Minister as apparent from the order, the covering letter and the contents of the File Note, and ask itself in paraphrase of the terms formulated by Henchy J.: "Does the conclusion to deport the applicant flow from the premise upon which it is based; or does it, by reason of some flaw or failure in the way in which the balancing exercise was apparently approached, result in a conclusion which 'plainly and unambiguously flies in the face of fundamental reason and common sense?'"
25. The applicant relies on a number of decisions of the European Court of Human Rights to argue, in substance, that the Minister's decision breaches Art. 8(1) of the European Convention on Human Rights because it fails to properly establish that the interference with the applicant's private and family life that deportation represents is necessary in a democratic society, that is to say justified by a pressing social need, and in particular, proportionate to the legitimate aim pursued: see Üner v The Netherlands [GC], judgment of 18 October 2006, [2006] ECHR 873, § 54, citing Dalia v. France , judgment of 19 February 1998, Reports 1998-I, p. 91, § 52; Mehemi v. France , judgment of 26 September 1997, Reports 1997-VI, p. 1971, § 34; Boultif v. Switzerland , cited above, § 46; and Slivenko v. Latvia [GC], no. 48321/99, ECHR 2003-X, § 113.
26. In doing so, the applicant choses the wrong starting point. As Hogan J pointed out in RX & Ors. v Minister for Justice [2010] IEHC 446 (Unreported, High Court, 10 December, 2010) (at para. 32):
‘I would pause here to add that the references in asylum and immigration case-law to Article 8 ECHR have become such a common place, that it is perhaps easy to overlook the fact that even in this area, the ECHR merely supplements or enhances the role of the Constitution. Such is made clear by the Long Title to the European Convention of Human Rights Act , and, in any event, the Supreme Court has confirmed that where there is an overlap between constitutional rights and rights deriving from the Convention, it is the former which, generally speaking at least, must be considered first: see, e.g., Carmody v. Minister for Justice, Equality and Law Reform [2009] IESC 71. The Convention comes into play only where the Constitution does not provide an adequate remedy in its own right.'
27. Ignoring that stricture (as, in fairness it must be said, the Minister also did), and ignoring the extensive reference to, and analysis of, the relevant European Court of Human Rights jurisprudence in the Minister's decision, the applicant pursues his argument by drawing selective comparisons between the facts of his case and those that were at issue in ECHR cases such as Moustaquim v Belgium [1991] ECHR 3, AW Khan v United Kingdom [2010] ECHR 27; AA v United Kingdom [2011] ECHR 1345; and Ndidi v UK [2017] ECHR 781 to support the argument that the Minister's decision fails the test of proportionality under Art. 8 ECHR because, in effect, insufficient weight was given to some factors or excessive weight to others. As Cooke J pointed out in ISOF that is not the correct test for this Court to apply. Rather, the inquiry must be whether the applicant can identify some flaw or failure in the way in which the Minister approached the balancing exercise resulting in a conclusion which plainly and unambiguously flies in the face of fundamental reason and common sense.
28. With that in mind, I turn to consider the matters that the applicant seeks to rely upon as failures or flaws in the way the Minister approached the relevant balancing exercise.
29. The first is an asserted failure to weigh sufficiently in the applicant's favour that, while no custodial sentence had been imposed upon him, a deportation order against him ‘is, by its nature, for the duration of [his] life.' However, there are two difficulties with that assertion. The first is that the suspension of the sentence of two years imprisonment imposed on the applicant is not the only criterion by which to assess, in the words of the European Court of Human Rights in AA , the extent to which he can be expected to cause disorder or to engage in criminal activities in the future. The nature and seriousness of the offences the applicant committed are also material, as is any assessment of his risk of reoffending, and also any further propensity he may have shown to contravene the criminal law of the State. The second and more fundamental difficulty is that the statement that the duration of a deportation order is for life is, at best, incomplete and, at worst misleading because it disregards the Minister's power under s. 3(11) of the Act of 1999 to revoke a deportation order. As the Supreme Court pointed out in Sivsivadze v Minister for Justice & Equality [2016] 2 IR 403 ( per Murray J at 436), there is nothing in sub-ss 3(1) and (11) of the Act of 1999 which would restrict the Minister from fully taking into account the constitutional and convention rights affected by any given decision to make or revoke a deportation order.
30. The second alleged flaw in the Minister's approach to the relevant balancing exercise is that it wrongly took into account the failure of the applicant to engage in any formal rehabilitation programme or activity because, unlike his counterpart in AA , the applicant here was not imprisoned and was not required to engage in any formal rehabilitation as a condition of his probation. However, that contention wrongly ignores the fact that participation in formal rehabilitation activity (whether therapy, counselling or education) is not confined to persons in custody or on probation.
31. The third flaw contended for is that the decision fails to provide enough support for its conclusion that the applicant can reasonably be expected to cause disorder or engage in criminal conduct in the future, such as to render his deportation necessary in a democratic society; an assertion that borrows the language used by the European Court of Human Rights in AA (at para. 68). But there are differences, as well as similarities, between the cases. In this case the file note records that the applicant was older than the applicant in AA was when each committed the relevant sexual offences. Further, unlike the applicant in AA , the applicant in this case had not engaged in, much less responded positively to, any form of rehabilitation and had gone on instead to commit two motoring offences while awaiting sentence, arguably demonstrating a propensity to re-offend and a disregard for the criminal laws of the State. Nor can it be overlooked that, while the judgment of the European Court of Human Rights in AA notes (at paras. 11 and 15) that both the Parole Assessment Report and probation officer in that case had concluded that the applicant posed a low risk of re-offending and of causing harm to the public, the transcript of the sentence hearing in this case discloses that the probation report concluded the applicant was at moderate risk of re-offending.
32. The fourth flaw alleged in the balancing exercise in the Minister's decision is the asserted irrationality of the conclusion that the two motoring offences the applicant committed in 2014 demonstrate his propensity to reoffend. This argument is based on two misconceptions: first, that the Minister could only properly have been concerned with the applicant's propensity to commit further sexual offences and not with his propensity to cause disorder or to engage in criminal activities generally; and, second, that an established disregard for the road traffic laws of the State is incapable of speaking to that issue. In Hussein v Minister for Justice [2015] 3 IR 423 (at 432), the Supreme Court, per Hardiman J, made it clear that the Minister is entitled to treat the offence of driving with no insurance as a serious matter.
33. Thus, I conclude that the applicant has failed to establish any flaw or failure in the way in which the Minister approached the necessary balancing exercise that is capable of supporting the conclusion that the decision was unreasonable or irrational.
ii. were relevant matters ignored or irrelevant matters considered?
34. Under this head, the applicant raises three issues concerning the matters that the Minister is obliged to take into account under s. 3(6) of the Act of 1999.
35. The first issue the applicant raises focuses on the consideration, under s. 3(6)(d), of the nature of his connection with the State, which the file note records ‘lies in his applications for permission to remain in the State based on family dependency and as part of a family unit where the parent(s) of this unit have been granted residency.' The applicant submits that this section of the file note fails to acknowledge that the State has been the applicant's home for 16 years, and that he is a settled migrant who had permission to remain in the State for more than 13 years.
36. In response, the Minister points out that that the file note contains repeated references to the length of time the applicant has been in the State and the nature of his residence permission during that period. For example, the duration of the applicant's residence in the State is expressly recorded in the file note in accordance with the statutory requirement to consider it under s. 3(6)(b) of the Act of 1999. As a further example, in a section headed ‘Balancing Rights', the file note expressly states: ‘I have noted [the applicant's] submission that [he] is a settled migrant who had permission to remain in the State for more than 13 years.'
37. The second issue the applicant raises is that, in considering his employment prospects in accordance with the requirement to do so under s. 3(6)(f) of the Act of 1999, the file note concludes that those prospects, ‘outside [those] as a professional football player, are limited', notwithstanding the job offers provided on the applicant's behalf in a State rapidly-approaching full employment. The applicant submits that the only justification provided for that conclusion is that ‘the applicant has no permission to reside in the State and is therefore not permitted by law to work in the State', which - the applicant contends - is simply circular reasoning.
38. The Minister responds that the statement concerned is, in substance, merely the observation that permission to reside in the State does not necessarily entail permission to work in the State. More significantly, the Minister contends that it is not the basis for the conclusion in the file note on the applicant's employment prospects. The Minister submits that the basis for that conclusion can be found in the very next sentence of the file note, which states:
‘Notwithstanding the gradually improving economy and rising employment figures, no information or documentation has been submitted to show that [the applicant] has any specialist skills which are in deficit in the State, I therefore submit that [the applicant's] employment prospects outside [those] as a professional football player are limited".
39. The third issue the applicant raises under this head is that, in addressing humanitarian considerations, as the Minister is required to do under s. 3(6)(h) of the Act of 1999, the file note wrongly engages in conjecture about the applicant's remaining family members in Nigeria, identifying among them a paternal uncle who is, in fact, deceased.
40. In reply, the Minister points out that the source of the relevant information in the file note concerning the applicant's family in Nigeria was not conjecture but the account given by the applicant's mother to An Garda Síochána in 2002 in support of the claim for asylum that she subsequently abandoned. The Minister only learned of the uncle's death through an affidavit sworn by the applicant in these proceedings on 24 May 2017. The file note in respect of the Minister's previous decision had included the same information, and the applicant had taken no steps to correct it in the representations made on his behalf on the reconsideration of the proposal to deport him. The Minister relies on the following passage from the judgment of O'Keefe J in Troci v Minister for Justice and Equality [2012] IEHC 542, (Unreported, High Court, 7th December, 2012):
‘35. It is well established that foreign nationals who seek permission to remain in the State are not passive participants in the process. Rather it is for the applicant to put his or her best foot forward and to put all relevant information before the Minister, if necessary by way of updated submissions. The Supreme Court has affirmed these principles in Re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] I I.R. 1 and in Oguekwe v. The Minister [2008] 3 IR 795. The Minister's obligation under s. 3(6) (c) of the Immigration Act to have regard to family and domestic circumstances applies only "insofar as they appear or are known to the Minister ." The Minister is under no obligation to conduct fact-finding exercises and he ought not to engage in impermissible speculation or conjecture.'
41. I accept the Minister's submissions on these points and, thus, I conclude that none of the issues raised by the applicant under this head is sufficient to establish that the Minister improperly ignored any relevant consideration or wrongly took any irrelevant consideration into account. On that basis, this ground of challenge to the deportation order fails.
iii. an error of fact about the nature or term of the sentence imposed?
42. The applicant points to five separate references in the file note to the sentence imposed on him for the sexual offences of which he has been convicted as: ‘Sentence of 2 years, suspended sentence of 3 years.' Of course, it is common case that the applicant received a sentence on each count of two years imprisonment, suspended for three years. The phrase at issue is attributed to the GNIB on each occasion it appears in the file note. There is no doubt that the phrase is, at best, infelicitous or clumsy and, at worst, inaccurate and potentially misleading. Through counsel, the applicant argues that it might be read as wrongly suggesting that the applicant received a five year sentence, of which he was to serve two with the last three years suspended or, at the very least, as suggesting that the applicant received a two year custodial sentence. However, the question is ‘was the Minister misled?'
43. The Minister submits that the error is an administrative or typographical one, akin to that found in the case of Luximon v Minister for Justice, Equality and Law Reform [2015] IEHC 227 (Unreported, High Court (Barr J), 20th March, 2015), where reference had been incorrectly made to a Chinese as opposed to a Mauritian re-entry stamp. In refusing relief in that case, Barr J cited the following passage from the decision of Mac Eochaidh J in S.N. v Refugee Appeals Tribunal [2013] IEHC 282, (Unreported, High Court, 6th June, 2013) (at paras. 18-19):
44. The Minister points out that each time the phrase at issue is used in the file note it is quite clearly (whether rightly or wrongly) attributed to the GNIB, whereas other passages in the file note make it perfectly clear that the Minister was not misled by it; most notably, the unqualified statement that ‘[the applicant] was convicted of the above-mentioned charges and suspended sentences were imposed.'
45. I conclude that, while the error concerned is less obviously a mere typographical error than those that were identified in Luximon and S.N., it is certainly not one that had a material effect on the Minister's decision.
46. On this ground generally it is important to bear in mind that, as Peart J observed in G.T. v Minister for Justice, Equality and Law Reform [2007] IEHC 287, (Unreported, High Court, 27th July, 2007), albeit in the context of a decision of the Refugee Appeals Tribunal, rather than the Minister:
‘It is not desirable that a decision be parsed and analysed word for word in order to discern some possible infelicity in the choice of words or phrases used and to hold that a finding of credibility adverse to the applicant is invalid, unless the matters relied upon have been clearly misunderstood or mis-stated by the decision maker. The whole of the decision must be read and considered in order to reach a view as to whether, when the decision is read in its entirety and considered as a whole, there was no reasonable basis for the decision maker reaching that conclusion. If a decision maker makes a significant and material error in how the evidence has been recorded, or other serious error of fact, then of course the process by which credibility has been assessed falls short of [that] required to meet a proper standard of constitutional justice. But such an error must go beyond a mere possible ambiguity arising from the words used. The error must be clear and it must go to the heart of the decision making process, and fundamentally undermine it.'
47. Reading the decision as a whole, I do not accept that the Minister was under any misapprehension concerning the nature of the sentence that the Circuit Criminal Court has imposed on the applicant. Accordingly, I reject this ground of challenge to the deportation order.
iv. a breach of the applicant's entitlement to natural and constitutional justice and fair procedures?
48. The applicant objected to any consideration by the Minister of the contents of the GNIB report on the basis that it would constitute a breach of his entitlement to natural and constitutional justice and fair procedures.
49. The applicant points out that the report contains what he describes as ‘a number of very serious allegations' against him as one of the six youths involved in the train of events described by the injured party. The applicant submits that, while he was invited to make any representations he might wish in response to that report, he was not given the opportunity to cross-examine his accuser.
50. The applicant complains that the report refers to certain incidents that were never put to him during the criminal trial, although that is a strange complaint because the applicant pleaded guilty to certain offences and there was no trial. The applicant complains also that the report refers to incidents of ‘rape' and ‘false imprisonment' in a manner that might be interpreted as referring to him as the perpetrator of them, although he was never charged with, much less convicted of, any such offence.
51. The applicant argues that, while he accepts that the Minister was entitled to have regard to the order of conviction and the transcript of the sentence hearing of the applicant, the Minister was not entitled to have regard to the untested allegations contained in the report and, by doing so, breached both the separation of powers and the applicant's rights under the Constitution of Ireland, as well as the applicant's rights under the European Convention on Human Rights.
52. Before addressing those arguments, it is important to put them in context by considering the evidence that is before this court on, first, what occurred at the applicant's sentence hearing before the Circuit Criminal Court and, second, what is contained in the GNIB report.
53. The only reliable information before me concerning the nature of the conduct that led to the applicant's guilty plea and conviction before the Circuit Criminal Court is that contained in the order of conviction made by that court on 31 October 2014 and in the transcript of the adjourned sentence hearing that concluded before that court on that date, having commenced on 21 July 2014, for which no transcript has been made available. The order of conviction confirms that the applicant pleaded guilty to three counts - Counts No. 9, 11 and 13 - on the bill of indictment, and that the Director of Public Prosecutions entered a nolle prosequi on the other counts against him. I have not been shown the bill of indictment. According to the order of conviction, Count 9 was one of sexual assault, contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 and Counts 11 and 13 were each ones of attempted defilement of a child under the age of 17 years, contrary to s. 3(2) of the Criminal Law (Sexual Offences) Act 2006. Neither the date nor the location of any of those offences appears on the face of the order. The GNIB report, with which the applicant takes issue (though not on this point), states that the applicant was originally charged with four counts of sexual assault and six of defilement of a child under the age of 17 years.
54. A number of pertinent facts emerge from the transcript of the resumed sentence hearing on 31 October 2014. The applicant's counsel was obliged to address a probation report less favourable than those in respect of the two co-accused who were being sentenced with him on that date (the other accused having been sentenced earlier), in that it contained a reference to his lack of empathy with the injured party. The applicant's counsel sought to emphasise that the investigating guard's evidence had been favourable to the applicant, indicating that - alone of the accused - the applicant had expressed remorse and inquired after the injured party. I have seen neither the probation report nor a transcript of the investigating guard's evidence.
55. Counsel for the applicant at the sentence hearing was at pains to emphasise that she had no instructions to question anything that the injured party had said in her statement. That statement has not been produced in these proceedings. However, the GNIB report indicates that the injured party made a comprehensive statement to the investigating officer on 31 March 2010 and the description of the relevant events in the report is plainly drawn from that statement.
56. In passing sentence, the observations of the presiding judge included the following. The applicant had pleaded guilty to counts 9, 11 and 13 on the indictment on 26 February 2014, the date listed for his trial. Evidence had been heard on 21 July 2014 (the transcript of which has not been produced in these proceedings). Counts 9 and 11 (alleging sexual assault and attempted defilement, respectively) deal with acts that occurred on 15 March 2010, and count 13 (alleging attempted defilement) deals with an act that occurred on 25 March 2010. While consent was not an issue in respect of those offences because of the age of the injured party, the events had been distressful to her and, indeed, the criminal investigation into them commenced on the basis of the complaint that she made to the gardaí shortly after they occurred. The victim impact report established that the events were very disturbing for her. Each of the cases before the court was serious and the sexual activity engaged in by each of the convicted persons, including the applicant, was quite concerning. Each of the convicted persons had been assessed as at moderate - rather than low - risk of reoffending in the future. It was worrying that, at a significant remove from the offences, the convicted persons still didn't appreciate how serious the experience was for the injured party.
57. In sentencing the applicant, the Circuit Court judge concluded:
‘In relation to [the applicant], the Court has certain concerns and while I know it has been impressed upon me that he has a level of victim empathy, [a view] that is perhaps not shared by [the probation officer], I do have concerns and I had concerns particularly in relation to his case on the last occasion, and not least of which was because it was set out that he was not accepting culpability. That raises the question as to whether he is, unlike his two [co-accused], in a different position. Again, I'm taking into account in his case the fact that there has been a delay in the whole matter being resolved and in fairness to him and to his [co-accused] I will also suspend the two years. In this case because of the concerns that I have I'm going to suspend - impose a sentence of two years' imprisonment on all counts. I'm going to suspend that sentence for a period of three years and they're to enter a bond, each of them in their own sum of €200, to keep the peace and be of good behaviour for the next three years and that for the next 12 months all of them are to continue under the supervisions of the Probation and Welfare Service. They are to follow all directions, attend all meeting and notify of any change of address during that 12-month period and if the probation service has any difficulty in terms of meeting, communicating with or having their directions followed, there's liberty to the probation service to bring the matter back to this Court at which stage I will impose the two years that I'm suspending here today. So, the relevant counts on which two years are being imposed; … in relation to [the applicant], counts 9, 11 and 13….'
58. There is one overarching reason why the applicant's various complaints on this ground must fail in limine . It is that, having noted the applicant's representations along the lines of his complaints already summarised, the file note records that ‘the Minister is considering only the criminal offences for which [the applicant] has been convicted in the State. All other allegations or incidents do not form part of the Minister's recommendation.'
59. Even if that were not so, I would have rejected the applicant's challenge to the deportation order on this ground for the following reasons. First, the applicant has not explained the basis upon which his sentencing hearing before the Circuit Criminal Court did take place. Accordingly, I cannot know whether the plea of guilty that he entered to three of the ten counts against him was on the basis of the full facts that were the subject of the allegations against him or merely on the basis of the specific facts necessary to establish the criminal conduct captured by the three counts concerned. In so far as it may be argued that his pleas were tendered only in respect of the acts constituting the offences alleged in those counts and that the acts constituting the other offences alleged against him were denied, that is not apparent from the partial transcript that has been produced in evidence before me. Moreover, the applicant has not produced a copy of the bill of indictment against him, so that, beyond the ‘statement of offence' that appears on the face of the order of conviction for each of the three counts to which the applicant pleaded guilty, I have not been apprised of the ‘particulars of offence' in respect of any of those counts. The applicant has not anywhere identified or admitted the specific acts, rather than the specific offences, to which he admitted for the purpose of his guilty plea.
60. Second, the applicant had available to him at all material times the full panoply of rights and privileges that are rightly accorded to every accused person in the context of the criminal process. Had he wished to exercise a right to cross-examine his accuser, whether in a criminal trial on a plea of not guilty or at a sentence hearing on a plea of guilty on contested facts, he was perfectly entitled to do so. Instead, through counsel, he sought credit as part of his plea in mitigation, not only for accepting his culpability in relation to the pleas of guilty that he entered, but also for not suggesting that the complainant had any improper motive or inspiration in the criminal complaint that she made, and for not questioning anything she had said in her statement of complaint. As the GNIB reports makes plain on its face, the incidents it describes are drawn from that statement, which was made very shortly after the incidents it describes occurred. Thus, there is an air of unreality to the applicant's complaint that he has been wrongly deprived of the right to cross-examine the injured party on the content of that report in the context of the deportation process. Certainly, he has not laid any proper foundation for that complaint in the limited evidence upon which he seeks to rely.
61. Third, it is perfectly plain that, although the heading of the GNIB report refers to ‘multiple incidents of rape, sexual assault and false imprisonment which occurred on multiple dates between 23/02/2010 and 25/03/2010', there is no specific allegation of rape or false imprisonment against the applicant in the text of the redacted report.
62. For those reasons, even if the Minister's consideration of the applicant's conduct had extended beyond that involved in the three specific offences to which he had pleaded guilty to encompass all of the misconduct alleged against him in the injured party's statement and recorded in the GNIB report (and I accept that it did not), the applicant would still have failed to satisfy me that on the scant evidence he has provided that such a course would have amounted to a breach of his entitlement to natural and constitutional justice and fair procedures, much less that it would have amounted to a breach of the separation of powers required under the Constitution.
v. invidious discrimination?
63. The applicant submits that the deportation order against him breaches his entitlement to be held equal before the law under Article 40.1 of the Constitution because, of the six non-nationals convicted of criminal offences against the injured party, he is the only one against whom a deportation order has been made, and that is the position even though some of the others received greater sentences than the applicant did and one of the others was subsequently convicted of another criminal offence involving fraud.
64. It is impossible to meaningfully adjudicate on that claim on the basis of the limited evidence the applicant has presented. The Minister is required to have regard to a broad range of legal and humanitarian considerations in the exercise of the deportation power under s. 3 of the Act of 1999. Taking only the matters to which the Minister is obliged to have regard under s. 3(6) of that Act, there is no evidence before me in respect of each of the other persons involved concerning: his age; his length of residence in the State; his family and domestic circumstances; the nature of his connection with the State, if any; his employment record; his employment prospects; the humanitarian considerations applicable, if any; or the representations, if any, that were made against his deportation.
65. It is true that, under s. 3(6)(g) of the Act of 1999, the Minister must have regard to ‘the character and conduct of the person both within and (where relevant and ascertainable) outside the State (including any criminal convictions).' And there is some limited evidence before me concerning the character and conduct of each of those other persons, in that the transcript of the applicant's sentence hearing suggests that two of his co-accused committed sexual offences very similar to those committed by the applicant, for which each received precisely the same sentence as the applicant. I also have the applicant's averments that some of those other persons received custodial sentences for their involvement in those offences and that one of those other persons ‘has subsequently been convicted of an offence involving fraud.' But even on that one part of the wide range of matters the Minister is obliged to consider under s. 3(6), the severity of the penalty imposed on foot of a particular conviction and the number of convictions recorded are not the only criteria by reference to which the character and conduct of a person must be assessed. For example, efforts at rehabilitation and any alteration in the assessment of the risk of reoffending must also be taken into account.
66. Thus, while I accept that there has been a difference of treatment between the applicant and those other persons in the result of the application of the immigration law of the State to each, I cannot be satisfied that it demonstrates any invidious discrimination between them. Discrimination lies as obviously in treating different things alike as in treating similar things differently.
67. Faced with that difficulty, the applicant attempts to argue that, by drawing comparisons between his criminal record and that of each of those other persons and then contrasting the manner in which the immigration law of the State has been applied to him with the way in which he understands it has been applied to those others, he should be held to have made out a prima facie case of invidious discrimination, thereby shifting the onus of proof onto the Minister to justify that difference of treatment. I am aware of no such principle, and no authority in support of it was produced.
68. It follows that this ground of challenge must fail.
vi. failure to provide an effective remedy?
69. One of the grounds on which the applicant was given leave to challenge the deportation order is that the absence of an independent appeal against a deportation order under the provisions of the Act of 1999 is a violation of the applicant's rights under Article 8 and (presumably, although it is not stated) Article 13 of the European Convention on Human Rights. Although the argument was not addressed in the applicant's written submission, in the course of oral argument counsel for the applicant stated that she was reserving the right to make that case in reply to the Minister's submissions. In the event, that did not happen.
70. Nonetheless, for completeness, having considered that ground I have come to the conclusion that I can see no merit in it. In explaining why, I would simply adopt the following analysis of the law set out in the judgment of Cooke J in ISOF v Minister for Justice [2010] IEHC 457, (Unreported, High Court, 17th December, 2010) (at para. 10):
‘Where the challenge to the decision is based upon the assertion that it has the effect of intruding disproportionately upon the fundamental rights of those affected by it, it is the duty of the court to assess whether the applicant demonstrates that it is disproportionate in the sense of being irrational or unreasonable according to the Keegan/O'Keeffe test. It does so by reference to the evidence, information and documentation available to or procurable by the decision maker at the time. It does not take account of new information or evidence which has become available since the decision was made. (In the case of a deportation order the remedy in that regard lies in an application for revocation under s. 3(11) of the Immigration Act , a decision on which is itself susceptible of judicial review for proportionality where necessary.) In the judgment of the Court no material difference exists between the evaluation of proportionality as regards the interference with "qualified rights" (as in the present case) and "absolute rights" (as in the case of Meadows ). If constitutional rights are in issue (whether absolute or qualified) it is the function and duty of the High Court to vindicate them. The same can be said for rights entitled to protection under the European Convention of Human Rights and the need for the High Court, in compliance with Article 13 of the Convention, to provide an effective remedy for that protection.'
71. As Cooke J went on to point out in Lofinmakin (a minor) v Minister for Justice, Equality and Law Reform [2011] IEHC 38 (at para. 42): ‘Thus, if it ever was the case in this jurisdiction, in the judgment of the Court it is not now the position that, in the words of Walsh J above, this Court in judicial review of an impugned deportation order cannot "grant relief simply on the grounds that the facts on any given case disclose a breach of the Convention". If the material facts upon which the stated reasons for a deportation order are based are disputed by the deportee as wrong, the High Court can try that issue and if it finds in the applicant's favour it can quash the decision upon the basis that the mistake of fact has led the Minister to make an order which could not have been made intra vires. If the material facts are not disputed but it is demonstrated that, correctly appraised, they establish a violation of a Convention protection, the Court can quash the decision for irrationality on the basis that the conclusion reached did not follow from the factual premise.'
72. It follows that there is an effective remedy, as required under Article 13 of the ECHR, for any person alleging a breach of the right to respect for his private and family life under Article 8 of the ECHR in the context of the deportation process under the Act of 1999. Accordingly, I reject this ground.
Conclusion
73. The application for judicial review is refused.
