High Court dismisses judicial review of immigration refusal due to lack of evidence and applicant's illegal status.

Neutral Citation [2015] IEHC 681

THE HIGH COURT

JUDICIAL REVIEW

[2014 No. 214 J.R.]

BETWEEN

BING LENG

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY

RESPONDENT

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 6th day of November, 2015

1. On 15th January, 2002, the applicant Mr. Leng arrived in Ireland from China, his country of origin, with the benefit of a visa. In

February 2002 he was registered with student immigration status (“Stamp 2” permission to remain). This permission to remain in the

State was renewed from time to time until March, 2011.

2. In January, 2011 he was arrested in respect of a charge under s. 19 of the Misuse of Drugs Act 1977, which related to allowing

premises to be used for the cultivation of cannabis. On 31st January, 2014, following a plea of guilty, he was sentenced by the Circuit

Court to two years’ imprisonment (with one year suspended).

3. The applicant has been unlawfully in the State at all material times following the expiry of his permission to remain in March, 2011.

4. Up to the time of his participation in criminality, the applicant had been involved in a long term relationship that lasted

approximately seven years. This relationship broke up around the time of the applicant’s offending behaviour.

5. The applicant met his current partner, Ms. Bing-Bing Miao, in late 2011, at a time when he was unlawfully present in the State.

They began living in the same premises in March 2012, initially in a flat shared with others. They began cohabitation proper in August

2012. Ms. Miao has two Irish citizen children from a previous marriage. The applicant and Ms. Miao have since married, in August

2015.

6. On 8th January 2014 the applicant’s solicitors wrote to the Minister making an application for permission to remain in the State on

“Stamp 4” terms, that is, with an entitlement to work. At the hearing of the present application, his solicitors very fairly accepted

that they were aware of the terms of the Minister’s scheme for permissions for de facto partnerships and were aware that the

applicant did not comply with those terms. Hence they made an essentially ad hoc application rather than one that purported to come

within the scheme.

7. The application enclosed a letter from Ms. Miao testifying to the relationship (in terms which appear to have overstated the

duration of the co-habitation), but did not enclose the sort of documentary evidence of cohabitation envisaged by the Minister’s

published scheme.

8. The application also enclosed a letter from the HSE to the applicant’s former solicitors, which did not make any reference to the

relationship with Ms. Miao and stated that the applicant was living with friends.

9. By letter dated 26th February, 2014, the Minister refused the application, notified the applicant’s solicitors of that refusal, and

enclosed documents setting out the Minister’s consideration of the application. That letter set out essentially four grounds of refusal,

the first of which was a lack of “evidence” of the relationship with Ms. Miao.

10. Shortly after that letter, the Minister wrote again on 12th March, 2014, notifying the applicant of a proposal to make a

deportation order against him. That letter contains an error on its face in that it recites both that the applicant was present in the

State without permission, and that he both entered and was present in the State without permission. The reference to entry without

permission is not correct, because, as noted above, his initial entry was on foot of a visa.

11. The present application for leave to seek judicial review of the decisions embodied in both of these letters was filed in Central

Office on 3rd April, 2014.

Procedural Matters

12. Mr. David Leonard, B.L., who appeared for the applicant, has drawn my attention to a typographical error in the notice of motion

which as drafted seeks substantive relief rather than leave to apply for judicial review. By agreement of the parties, I will treat the

notice of motion as an application for leave, which is what it was intended to be.

13. Mr. Leonard also applied for an extension of time to make the application. Having regard to:

(i) the fact that an explanation for the delay in instituting proceedings is set out on affidavit,

(ii) the lack of objection from the Minister,

(iii) the lack of any prejudice to the Minister, and

(iv) the relatively short period of time involved,

I will make an order extending time.

14. Although I am not holding that either of these matters is a bar to the making of the application, that is not to say that they are

entirely without relevance as I will discuss further below.

The alleged error of fact in the permission refusal

15. Mr. Leonard complains that in refusing the application for permission, the Minister committed an error of fact, by referring to the

proposition that the applicant had not presented “evidence” of a long term relationship with Ms. Miao, whereas he had submitted a

letter from Ms. Miao attesting to the relationship (although as I have said, that the letter gives the distinct impression that co-

habitation began at an earlier point to that now admitted on behalf of the applicant).

16. Ms. Elizabeth Cogan, B.L., for the Minister characterises the letter from Ms. Miao as an “assertion” and distinguishes it from

“evidence”. The scheme for de facto partners as set out on the Irish Naturalisation and Immigration Service website lists a number of

types of documentary evidence which are required to support an application by a partner. In the context of that policy, it seems

evident to me that when departmental officials made reference to a lack of “evidence”, this was a reference to a lack of evidence in

the terms required by the published policy, such as utility bills and cognate documents.

17. In interpreting a term such as “evidence” in this correspondence, context is all-important (see comments of Smyth J. in Baby O. v

Minister for Justice, Equality and Law Reform (Unreported, 20th December 2001)). When viewed in the context of the Minister’s

policy, which requires documentary evidence and which was the template against which the application would be bound to be

assessed, it is perfectly reasonable for the Minister to have stated that the applicant did not produce “evidence” of the relationship.

Indeed, it is significant that his solicitors knew that he did not qualify under the published policy (by reason of a lack of a two year

period of cohabitation at the time of making the application), and on that basis, they did not attempt to frame the application within

the terms of the policy. Such an approach made it all the more likely, if not all but inevitable, that the Minister would find that there

was a lack of evidence presented, which is what happened. In short, there was no error in the Minister’s letter of refusal because

there was no evidence of the relationship as defined by the contours of the policy statement.

The application was bound to fail independently of the question of whether evidence was presented

18. Even if it could be said that there was an error in the Minister’s decision, which I do not in any way accept, it seems clear to me

that this would amount to harmless error for a number of reasons. Firstly, the application did not come close to the guidelines, both

by reason of a lack of documentary evidence and because para. 16 of the guidelines makes it clear that the applicant must be of

good character, a test which this applicant would not have met given his conviction on indictment for a drugs offence and a

consequent custodial sentence which was, in part, actually effective.

19. While the Minister’s policy scheme could not be applied in an entirely inflexible manner, I would repeat the point I emphasised in Li

v. Minster for Justice and Equality (Unreported, 21st October 2015) that such policy schemes have the effect of promoting the similar

treatment of similar applications and therefore of promoting equality before the law.

20. Secondly, the Minister’s consideration of the application was based not on the lack of evidence alone but on four separate

reasons for refusal. Even if the applicant had not failed to supply evidence of the relationship, the other reasons remain valid,

namely:-

(i) A contradiction between the alleged cohabitation and the lack of any reference to cohabitation in a letter from the

HSE which was presented to the Minister by the applicant’s solicitors setting out his circumstances.

(ii) The fact that the applicant was not of good character.

(iii) The applicant’s unlawful presence in the State.

The alleged failure to “have regard to” the letter from the applicant’s partner

21. The applicant makes a related complaint that the Minister failed to “have regard to” the letter from the applicant’s partner

confirming the existence of the relationship. He also complains that an official in the Department stated only that she “examined the

file” as opposed that she had read it. I do not think that the particular phraseology adopted by officials can be subjected to this level

of microscopic analysis. A statement that a file has been examined should in the absence of anything to the contrary be treated as

equivalent to a statement that it has been read. There is nothing on the face of the decision to suggest that the letter from Ms. Miao

was not, in fact, considered.

22. More fundamentally, an obligation to have regard to a particular matter does not automatically create an obligation to refer to it

in narrative form (see A.W.S. v. Refugee Appeals Tribunal (Unreported, High Court, Dunne J., 12th June, 2007, at p. 14 and my

decision in R.A. v. Refugee Appeals Tribunal, Unreported, 4th November 2015). As long as the decision is not inconsistent with a

document supplied, failure to refer to a document that does not automatically give rise to an inference that it has been disregarded.

The onus is on the person challenging a decision to show that relevant matter has been disregarded, if the decision by its terms

suggests that it was examined (see G.K. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 418).

The lack of clarity as to who made the decision

23. Mr. Leonard suggests that there is a distinct lack of clarity as to what precise official made the decision complained of. This point

seems to be well made from the papers that have been put before me. The file was examined by a first official in the Department, Ms.

Maria Treacy then passed to Ms. Helen Fogarty, who made what is described as a recommendation in relation to refusal of the

application, rather than a decision in that regard. That strongly suggests to me that the file was then passed to some third and as

yet unnamed official in the Department who made the actual decision. I would infer that the respondent is probably in possession of

some version of this minute with a decision endorsed thereon by this more senior official.

24. It would certainly be more satisfactory if, in such a case, the Minister were to clarify the precise steps by which the decision was

arrived at, and she would certainly be obliged to do so if the point were material to the outcome. However, on the basis of the papers

as they stand, I infer that whoever made the final decision was acting on the basis of the reasoning as set out on the papers as

attached to the letter of refusal dated 26th February, 2014. Therefore no infirmity would attach to the Minister’s failure to identify

the ultimate decision maker. If for example, the ultimate decision maker had decided to refuse the application on the basis of a

different set of considerations to those set out in Ms Treacy’s minute, it would have been improper to send that minute to the

applicant as representing the considerations involved. In the absence of any real challenge by the applicant to the process sufficient

to cast doubt on the basis for the decision (for example, a letter seeking clarification not having been clearly answered by the

respondent) I would not be prepared to assume that the Minister acted on any different basis to that set out by Ms. Treacy.

25. That fact alone would distinguish the case from G.K.N. v. Minister for Justice [2014] IEHC 478, where an official did not place full

information before the ultimate decision maker, which in that case was the Minister personally. In the present case, it has not been

established that the ultimate decision maker did not have all relevant information.

26. While I hold that there is no substance to this complaint, there is in any event the further difficulty that I do not consider that

this ground of challenge comes properly within the grounds as pleaded by the applicant.

27. A related complaint that there was a failure to inform the applicant of adverse matters in accordance with the principles of natural

justice was pleaded but was abandoned by the applicant at the hearing.

28. A further complaint was made that the Minister should not have fettered her discretion by adopting a guideline that there be two

years cohabitation in order to qualify for permission to remain as a de facto partner. This point was not adequately pleaded but in any

event, to my mind the Minister is entitled to have regard to whatever reasonable criteria she wishes in terms of assessing whether a

permission should be granted. This must include the duration of any relationship (see T.C. v. Minister for Justice, Equality and Law

Reform [2005] 4 I.R. 109).

The challenge to the proposal to deport

29. The second leg of this application relates to a challenge to the proposal to make a deportation order. Following the refusal of

permission, the Minister wrote to the applicant on 12th March, 2014, setting out a proposal to make a deportation order against him.

The drafting of the letter was affected by an error as to fact, in that it stated that the applicant had entered and been present in

the State without the permission of the Minister, whereas the applicant’s original entry was lawful. The letter also went on to allege

that the applicant was present in the State without the permission of the Minister, so even on its face, a certain production error is

evident in the wording of the letter.

30. Mr. Leonard has challenged the explanation put forward for this error by Mr. Ben Ryan, on the grounds that the explanation is

hearsay. Mr. Ryan does not state that he prepared the letter himself, and therefore his explanation as to how the error occurred does

appear to me to be of a hearsay nature. Ms. Cogan’s reply to this complaint is that Mr. Ryan is “an officer of the Minister” and that it

is “routine” that a Civil Servant could take up a file and swear an affidavit as to its contents. She also says that it is open to Mr.

Ryan to give his own evidence as to the systems in operation in the Department, from his own knowledge.

31. It seems to me that the hearsay objection is well founded. While Mr. Ryan can, of course, give evidence from his own knowledge

as to the systems in the Department, he goes much further than that here and purports to give evidence as to how this particular

error occurred without averring as to his means of knowledge or personal involvement. The fact that Civil Servants routinely give

evidence as to the contents of files is usually more a convenience to the court and probably the parties in most cases, but if a

hearsay objection is made, a court may have to simply forgo such conveniences.

32. Accordingly, I find that Mr. Ryan’s explanation as to how this particular error occurred is hearsay and therefore inadmissible in the

particular circumstances of this case. But even in the absence of this explanation I infer from the wording of the letter that, as I have

already mentioned, some form of production error clearly occurred. Does this fact entitled the applicant to have the letter quashed by

way of certiorari?

33. The most fundamental obstacle to any relief being granted is that the letter is merely a proposal to deport. It does not in and of

itself infringe any rights of the applicant. In the absence of an infringement of a right, it is hard to see how the applicant can be said

to be entitled to seek judicial review of the decision.

34. Mr. Leonard points to s. 5(1)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended by s. 34 of the Employment Permits

Act 2014, which permits a notification of this kind (under s. 3(3)(a) of the Immigration Act 1999) to be challenged by way of judicial

review. However, that provision merely limits the procedure for seeking judicial review of such decisions, and it does not have the

consequence that judicial review of such decisions is always, or even normally, appropriate or is in some way to be encouraged.

35. Mr. Leonard identifies the right infringed by the proposal as “the right to have the applicant’s circumstances dealt with in an

accurate way”. Judicial review is not necessary or appropriate to vindicate this right. All it would take to address this error would be

the making of representations to the Minister in accordance with the proposal letter.

36. In my the circumstances in which judicial review of a mere proposal to deport an applicant is available must be extremely limited

and confined to cases where the Minister had no jurisdiction to make the proposal (see by analogy cases such as Stefan v. Minister

for Justice [2001] 4 I.R. 203, G.O. v. Minister for Justice and Equality [2015] IEHC 646 (MacEochaidh J.). The correct response to

such a proposal, if a recipient wishes to challenge it, is to write to the Minister setting out representations and if needs be legal

argument as to why the proposal should not be converted into an actual decision. Where the proposal was based on a fundamental

error such as to deprive the Minister of any jurisdiction – for example where the applicant was in fact an EU citizen with an

entitlement to be present in the State – judicial review would be a legitimate option despite the alternative remedy of making

representations. But where the applicant is a person who is prima facie liable to having a deportation order made against him or her,

as is clearly the case here, judicial review is not an appropriate first response to such a proposal.

37. The second difficulty for the applicant is that the error does not appear to be material. There is no suggestion anywhere else in

the papers that the applicant entered the State unlawfully, or that the letter would not have been issued without that statement.

The applicant was liable to have the proposal letter issued against him merely by reason of his unlawful presence in the State without

his initial entry having been unlawful. Again, we are in the realm of harmless error (see by analogy S.N. v. Refugee Appeals Tribunal,

Unreported, High Court, Mac Eochaidh J., 6th June, 2013, a case where an error as to a tribal name was held to have had no effect

on the decision). In short, this was clearly a mistake, as all other relevant information made clear, and the applicant was not

identifiably disadvantaged by that mistake.

38. That second factor is very much related to the first, in the sense that the more appropriate way of dealing with such issues

would have been for the applicant to simply make representations to the Minister to clear up the matter. Judicial review is not

necessary for that purpose.

Discretionary Factors

39. Even if any infirmity had been identified in the decisions sufficient to warrant the grant of certiorari, which is not the case, there

are a number of discretionary factors which would militate against the grant of relief to this applicant in this case.

40. One initial consideration is the question of whether the applicant can be held to have failed to comply with procedural

requirements himself. I have already adverted to the fact that the applicant’s papers for the present application were not filed in a

manner that sought the correct relief within the correct time. It cannot be the case that procedural irregularity is a one-way ratchet

system which only redounds to the prejudice of the State; or in other words that the applicant can concede as many goals as may

be, but, as soon as he scores a single goal, the match is over. Where the complaint being made is of little more than a typographical

error in a letter, and where the applicant has similar or more significant error on his side of the equation, that seems to me to be

something that can legitimately be considered as part of the discretionary dimension of an application for judicial review. Of course I

am not suggesting that such errors should automatically lead to denial of relief; merely that they be put into the balance should there

be a need to consider discretionary factors, having regard to the nature of the error identified on the part of the respondent.

41. Another matter going to discretion is the failure of the applicant to issue any pre-action letter between the refusal of the

permission and the launch of the proceedings.

42. Ms. Cogan submitted that if the Minister knew the applicant had misunderstood the guidelines as to evidence required, the matter

could have been clarified in correspondence.

43. Mr. Leonard submits that to have regard to a lack of a pre-action letter would be equivalent to refusal on the grounds of

alternative remedies, a subject on which he submits that settled case law exists. I do not think that the failure to write a pre-action

letter must be governed by the authorities on alterative remedies. If the infirmity is one which is capable of being resolved in

correspondence (see Li), the issue of such a pre-action letter is normally a prudent and appropriate step. Failure to take such a step

where it would have been appropriate to do so can reasonably be held against an applicant. In the present case, the infirmities that

are alleged to exist in the Minister’s letters were perfectly capable of being clarified in correspondence, correspondence which was of

course never issued.

44. A further discretionary factor is the fact that the applicant has been illegally present in the State at all material times since

March, 2011 including for the entire duration of the relationship with Ms. Miao on which he relied for his application for permission, as

well as at the time of his institution of these proceedings and ever since. I have previously held in Li that illegal presence in the State

is one factor that may be taken into account in a case where the order challenged does not have “continuing effects”. I would see a

distinction between a challenge to refusal of a visa or permission to be in the State on the one hand, which is inherently time-limited,

if not transitory, and the making of a deportation order on the other hand which is, in effect, a permanent bar to presence in the

State. The deportation order has “continuing effects” in a way that a permission refusal does not, and I would be somewhat more

reluctant to take into account illegal presence in the State on the part of an applicant challenging a deportation order. Indeed, Mr.

Leonard points out that such an applicant would almost, by definition, be unlawfully present in the State. However, this consideration

does not apply to persons applying for visas or other permissions to land or to be in the State. Furthermore, Mr. Leonard’s submission

assumes that a discretionary factor would be applied in a mechanical or automatic fashion, whereas the more appropriate way of

considering such discretionary elements would be firstly to identify if they exist and secondly to examine if they are outweighed by

countervailing factors such as objective constitutional interests. I will discuss this further below.

45. Yet another important discretionary factor in this case is the fact that the applicant essentially abused the hospitality of the

State by becoming involved in an indictable offence under the Misuse of Drugs Act 1977 at a time when he was a visitor to the State

on the basis of a temporary permission. The fact that he served a custodial sentence in this regard would, of itself, render him liable

to deportation under s. 3(2)(a) of the Immigration Act 1999, subject to any representations he might make in that regard.

46. To my mind, it would undermine the scheme and purpose of the immigration system if the court were precluded from having regard

to the offending conduct of an applicant in the exercise of its discretion. Mr. Leonard argues that the applicant has “served his time”

and the offence should not carry any “residual punishment.” However the refusal of permission by the Minister inter alia on the

grounds of his offending behaviour, and indeed the taking into account of his conviction by the court as a matter of discretion, do not

amount to “punishment”. They are simply civil consequences of the offending behaviour.

47. As I have made clear, the discretion of the court is not an inflexible approach and the identification of possible factors militating

against an applicant does not automatically result in a denial of relief. A court should go on to consider what countervailing factors

there may be and whether these outweigh the factors suggestive of dismissal of the application.

48. While it is not of course possible to give any exhaustive list of the countervailing questions, the ones that may be particularly

relevant to the present case appear to me to be as follows:

(i) Whether the error identified on the part of the respondent is one of substance rather than form.

(ii) Whether the decision related to a substantive right of the applicant or merely a privilege.

(iii) Whether the decision was made without jurisdiction (see O’Keeffe v. Connellan [2009] 3 I.R. 643), as opposed to a

decision which was within the jurisdiction of the decision maker but was reached by means of a flawed process.

(iv) Whether the decision had continuing effects (O’Keeffe v. Connellan [2009] 3 I.R. 643).

(v) Where there are objective constitutional interests involved (including for example those of minors who cannot be held

liable for any acts of the applicant) (Sivsivadze v. Minister for Justice and Equality [2015] IESC 53 [2015] 6 JIC 2303).

49. On posing those questions, I find the position to be as follows:

(i) The error in the letter notifying the applicant of the proposal to make a deportation order was merely an error of form.

(ii) The impugned decision did not infringe any substantive right of the applicant for the simple reason that he had no legal

entitlement to be in the State after March, 2011. Insofar as his rights under Article 8 of the European Convention are

concerned, virtually no weight attaches to those rights because his relationship with Ms. Miao arose at a time when he

was illegally present in the State (see my judgment in Li.) For that reason, the consideration of this applicant’s family

relationships in the context of having sought an extension of his permission to remain (or in the context of whether a

deportation order should be made) is essentially an ad misericordiam application. In the circumstances of the present

case, the weight (if any) which the Minister attaches to his family relationships are entirely a matter for her.

(iii) The Minister undoubtedly had jurisdiction to make the decisions she made.

(iv) A refusal of an extension of permission is not a decision with “continuing effects” in the strong sense in which that

expression should be understood. Part of the reasoning of the decision was the lack of evidence presented, and that in

itself leaves open to the applicant the possibility of making a further and better supported application. Ultimately the

decision was simply that a person who did not have permission to be in the State beyond a given date should not have an

extended permission. It was not a permanent bar to presence in the State in the way that a deportation order would be.

(v) For the foregoing reasons it is clear that there are minimal if any objective constitutional interests involved. The

refusal of permission will no doubt have an effect on Ms. Miao, his then girlfriend, now wife. However that is a matter that

the Minister was entitled to consider as having been insufficiently documented at the time of making of the original

application, and in any event as being outweighed by his criminality or illegal status or both. To borrow a term from

another area of law, there was voluntary assumption of risk by all concerned in embarking on and subsequently

intensifying a relationship at a time when one of the parties had no legal basis for maintaining a presence in the State.

50. Having regard to the foregoing I find that the balance of discretion is very firmly against the applicant in the circumstances of the

present case and, even if there was an infirmity in the decisions otherwise warranting judicial review, which I do not accept, I would

refuse relief on a discretionary basis alone.

Order

51. For the foregoing reasons, I would order as follows:-

(i) that the notice of motion be treated as an application for leave to apply for judicial review;

(ii) that time for making the application for leave be extended up to the date on which it was made;

(iii) that the application for leave to apply for judicial review be refused;

(iv) that any consequential applications be adjourned to a time to be fixed; and

(v) that any party intending to make such application give the other party advance written notice of particulars in that

regard.