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Decision on deportation was disproportionate to the rights of the person affected

By: Mark Tottenham BL

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Supreme Court allows appeal from High Court, and grants leave to seek judicial review of the decision of the Minister for Justice to deport the applicant, who had been refused asylum and claimed to be at risk of female genital mutilation if returned to her country of origin (Nigeria), on the grounds that: (a) the Minister had failed to give clear reasons for his decision; and (b) that a greater consideration should be given to a decision where it involved a severe limitation on the fundamental rights of the person affected.

Relief sought in proceedings: Judicial review of decision by Minister to make deportation order.
Application before the court: Appeal of refusal of leave to seek judicial review.
Outcome: Appeal allowed.
Grounds: Failure to give proper reasons for decision; Decision disproportionate to the rights affected.

Murray CJ: Application for refugee status - decision to make deportation order - section 3 of the Immigration Act 1999 - entitled to make representations as to remaining in State temporarily - decision to make order - judicial review - whether substantial grounds established - point of law of exceptional public importance - n determining the reasonableness of an administrative decision which affected or concerns the constitutional rights or fundamental rights, whether it was correct to apply the standards set out in O’Keeffe v. An Bord Pleanala - risk of female genital mutilation if applicant returned to Nigeria - whether applicant had established a well-founded fear of persecution - findign that expected marriage was unlikely - decision of the Minister - risk of being compelled to marry - requirement to give reasons for deportation decision - comparison with O’Keeffe authority - whether decision irrational - examination of decision-making process - nature of judicial review - whether rights prejudiced by administrative decision - proportionality - anxious scrutiny - requirement that Minister consider circumstances of each case prior to making deportation order -

“It is inherent in the principle of proportionality that where there is grave or serious limitations on the rights and in particular the fundamental rights of individuals as a consequence of an administrative decision the more substantial must be the countervailing considerations that justify it.”

“In my view the decision of the Minister in the terms couched is so vague and indeed opaque that its underlying rationale cannot be properly or reasonably deduced. The recommendation with which the memorandum submitted to the Minister with the file is not helpful and adds to the opaqueness of the decision. That states that “Refoulement was not found to be an issue in this case.” 
This decision is open to multiple interpretations which would include one that refoulement was not an issue and therefore it did not require any discretionary consideration. On the other hand it may well be that the Minister did consider refoulement an issue and that there was evidence of the appellant in this case being subject to some risk of being exposed to FGM but a risk that was so remote that being subject to FGM was unlikely: alternatively he may have considered that while there was evidence put forward to suggest that the appellant might be subjected to FMG that evidence could be rejected as not being of sufficient weight or credibility to establish that there was any risk. 
The fact remains that it is not possible to properly discern from the Minister’s decision the actual rationale on foot of which he decided that s. 5 of the Act had been “complied with”. Accordingly in my view there was a fundamental defect in the conclusion of the Minister on this issue.”

Kearns P (dissenting): Prior hearings giving rise to adjudications adverse to the applicant - deprtation stage - ad misericordiam - whether issues raised in earlier hearings could be revisited - expansion of criteria for judicial review -

“If such an expanded view of the role of judges is to extend to all areas of judicial review it will engulf the courts in a greatly increased volume of cases which will be of even greater length than at present, given that decision- makers will inexorably be constrained in consequence to justify their decisions to the courts. It will in my view render our judicial review system, already struggling in one respect under the vast weight of asylum related court applications, virtually inoperable.”

Denham J (concurring): Doctrine of reasonableness - common law doctrine - effective remedy - time limitation - burden of proof - access to court - fundamental rights - proportionality - test for unreasonableness - standard of judicial scrutiny - fear for personal safety - risk of female genital mutilation -

“It is the duty of the Court to ensure that the review process affords an effective remedy, especially when access to the court is limited by legislation. While the legislation applicable in this case has been held to comply with the Constitution, the use of rules at common law to restrict further the access to the courts could affect the constitutionality of the legal process.”

“The term "unreasonable" is the key, it is broader and essentially the basis of this type of scrutiny. A decision which interferes with constitutional rights, if it is to be considered reasonable, should be proportionate. If such an approach is not taken then the remedy may not be effective. This is relevant especially when access to the courts has been limited by the legislature.”

“The Executive has a primary role in relation to policy and immigration. However, the Court has a duty to protect constitutional rights. An aspect of this duty is that a remedy must be effective. The fact that there have been hearings at administrative level does not nullify the Court’s duty. The facts and circumstances of the case, the hearings, the nature of the decision, and the policy of the area, are relevant to achieving a constitutional analysis of the reasonableness of a decision.”

“When a decision-maker makes a decision which affects rights then, on reviewing the reasonableness of the decision: (a) the means must be rationally connected to the objective of the legislation and not arbitrary, unfair or based on irrational considerations; (b) the rights of the person must be impaired as little as possible; and (c) the effect on rights should be proportional to the objective. In all the circumstances I am satisfied that the applicant has established substantial grounds for contending that the Minister’s decision conveyed by letter of the 12th July, 2002 on s.5 (non refoulement) was manifestly unreasonable.”

Fennelly J (concurring): Decision to make deportation order - requirement of substantial grounds to obtain leave to seek judicial review - unreasonableness or irrationality - whether existing law adequate - protection of rights - fundamental rights - anxious scrutiny.

“The recommendation to the Minister contained the statement: “refoulement was not found to be an issue in this case.” It does not otherwise address the appellant’s claimed apprehension of the risk of being subjected to FGM. The Ministers decision expressed the matter differently by stating that section 5 (prohibition of refoulement) were “complied with” in the appellant’s case. The Minister did not give the reason which had been given by the Refugee Appeals Tribunal, namely that the appellant had not established a credible connection between her circumstances and forced marriage or FGM.”

“Two fundamental principles must, therefore, be respected in the rules for the judicial review of administrative decisions. The first is that the decision is that of the administrative body and not of the court. The latter may not substitute its own view for that of the former. The second is that the system of judicial review requires that fundamental rights be respected.”

“Where a right is not considered at all or is misdescribed or misunderstood by the decision-maker, the decision will be vulnerable to attack on the grounds of a mistake of law or failure to respect the rules of natural justice. In such cases, it may not be necessary to establish that it is unreasonable. It may, however, affect fundamental rights to such a disproportionate degree, having regard to the public objectives it seeks to achieve, as to cross a threshold, and to be justifiably labelled as so unreasonable that no reasonable decision-maker could justifiably have made it.”

Hardiman J (dissenting): Appeal from refusal of leave to apply for judicial review - attempt to extend scope of judicial discretion in immigration matters - waste of time and resources - principles of judicial review - failure to challenge decisions of immigration officer or Refugee Appeals Tribunal - separation of powers - background facts - unchallenged nature of previous decisions - female genital mutilation - discretion of the Minister - criteria for judicial review - ‘anxious scrutiny’ -

“In the present proceedings the appellant seeks to set aside the decision of the Minister to deport her following these unchallenged rejections. To this end, she seeks to change the long accepted criteria for obtaining Judicial Review in what I consider to be a very fundamental way, extending as I see it the scope of judicial discretion in immigration matters and diminishing that of the Executive, which is conferred by law, and creating a new, expensive and time consuming level of substantive appeal.”

“There are many countries in the world where practises which are widely considered unacceptable by Irish, European or American opinion are nonetheless commonplace either as a matter of government policy or (as in the case of female genital mutilation) as a matter of tradition or custom. It is plainly impossible to grant asylum simply on the basis that unacceptable practices occur in an applicant’s country of origin: that would commit the receiving country to accept for asylum every person who, in theory, might be the victim of such a practice. On the contrary, it is necessary for the applicant to go further and to establish a personal “well founded fear”. Any other policy would represent an open door for asylum seekers.”

“This court has already unanimously held, in a passage quoted above, that the Minister’s responsibilities do not include a duty to revisit the earlier decisions. Nor, I would add, does it include a duty to address issues which amount in substance to a revisiting of the earlier decision, unless perhaps a case can be made that the position has changed in the time between the decision of the Refugee Appeals Tribunal and the Minister’s later decision. No attempt that I can see has been made to take this latter point here.”

“I see a great difficulty in the application of an “anxious scrutiny” test whether under that name or any other. It seems to me to confer on the court a power of substantive, merit-based review of the essence of the Minister’s decision. The search for an objective justification ... of the impugned decision is very hard to distinguish from an appeal. I believe, with McGuinness J. in the passage cited above, that the proposed test lowers the standard of unreasonableness in judicial review.”

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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