The High Court has refused three applicants leave to appeal to the Court of Appeal after it dismissed their challenge to a deportation order concerning the third applicant.
In a judgment delivered on 5 December 2017, Mr Justice Richard Humphreys considered four proposed questions of law under section 5 of the Illegal Immigrants (Trafficking) Act 2000. The underlying judicial review had sought certiorari of a deportation order against the third applicant. The court had dismissed that application in an earlier judgment, Wang v Minister for Justice and Equality (No. 1) [2017] IEHC 652.
The first proposed question concerned whether the court could find the order valid because the applicants had not shown that the children could not live in China, when the Minister had not based the decision on that issue. Justice Humphreys said the Minister’s decision on whether to make a deportation order and the court’s later task of deciding whether to quash it involved different questions. He also said the proposed issue was fact-specific and that the children were not intended to be sent to China.
The second question alleged that the court departed from judicial review principles by considering an affidavit filed during the case, which said the Irish citizen children would not relocate to China. The judge rejected that characterisation, noting that the affidavit was filed by the applicants themselves. He said his reference to it was a comment, and the decision did not turn on that point.
A third proposed question concerned family rights. The applicants’ counsel did not press it strongly or make oral submissions on it, the judgment said. The judge found it failed the statutory test, introduced arguments not made at the hearing and did not arise on the facts, given the Minister’s express consideration of the applicants’ constitutional family rights.
The final question concerned the Minister’s view that the children were of an adaptable age. The judge said the point had not been pleaded or argued at the hearing and was a factual issue rather than a question of law. The children were 11 and 13 when the Minister made the decision. He described adaptability as relative, while adding that any error in using the phrase would not affect the result because the children were not being sent to China.
The court refused leave to appeal. It said the proposed points included matters not argued, contradicted the applicants’ own affidavit evidence, did not sufficiently transcend the facts and were not points on which the earlier decision turned. The order was limited to refusing permission to appeal; the judgment did not determine a new deportation decision.