The High Court refused Bing Leng leave to seek judicial review of the Minister for Justice and Equality’s refusal to extend his permission to remain in Ireland and a later proposal to deport him. The court extended the time for filing the application and treated a notice of motion seeking substantive relief as an application for leave. It did not decide whether a deportation order should be made.
Mr Justice Richard Humphreys said the Minister was entitled to find that Mr Leng had not provided the documentary evidence of his relationship required by the published policy for de facto partners. Mr Leng had submitted a letter from his partner, Bing-Bing Miao, but the court said the application lacked the supporting documents contemplated by that policy. His solicitors accepted that he did not meet the scheme’s two-year cohabitation requirement and had made an ad hoc application instead.
The judge also said that, even if the Minister’s reference to a lack of evidence had been an error, it would not have changed the result. The application faced other grounds for refusal, including a contradiction between the claimed cohabitation and an HSE letter saying Mr Leng lived with friends, his criminal conviction and sentence, and his unlawful presence after his permission expired in March 2011.
Mr Leng had entered Ireland from China on a visa in January 2002. His student permission was renewed until March 2011. He was later convicted, after pleading guilty, of an offence relating to allowing premises to be used for cannabis cultivation. In January 2014, he received a two-year prison sentence, with one year suspended.
The judge accepted that the March 2014 proposal-to-deport letter wrongly said Mr Leng had entered Ireland without permission. He ruled that an official’s explanation for the drafting error was hearsay and inadmissible in the circumstances. But the letter was only a proposal, and the judge said the error did not make judicial review an appropriate first response. Mr Leng could make representations to the Minister, and his unlawful presence was sufficient for the proposal to issue even though his original entry was lawful.
The court also rejected the challenges concerning whether the partner’s letter had been considered and the lack of clarity about which official made the residence-permission decision. It said the papers did not establish that relevant information had been withheld from the decision-maker. The judge considered the applicant’s procedural errors, failure to send a pre-action letter, unlawful presence and offending in weighing whether relief should be granted. He concluded that the balance was firmly against Mr Leng.
The order extended time to the date the application was made, refused leave to seek judicial review, and adjourned any consequential applications to a date to be fixed. Any party intending to make such an application was required to give the other party advance written notice of its particulars.