Deportation of Chinese national did not infringe his rights

Judicial review – asylum and immigration – Chinese national challenging the decisions of the Minister for Justice refusing to give him a visa and proposing to deport him – arrived with student immigration status - permission to remain was renewed from time to time – convicted of drugs offences – allowed his premises to be used for the cultivation of cannabis - unlawfully in the State at all material times following the expiry of his permission to remain – met his partner when he was unlawfully present in the State – she had two Irish citizen children from a previous relationship – began living together - applied for permission to remain in the State with an entitlement to work – did not come within the scheme - ad hoc application - did not enclose the sort of documentary evidence of cohabitation envisaged by the Minister’s published scheme – overstated cohabitation period - Minister refused the application - lack of “evidence” of the relationship with his partner – Minister issued him with a proposal to deport – typographical error in the proposal – stated that he entered the state illegally - error of fact – argued that the finding that he had not presented “evidence” of a long term relationship was erroneous – Minister distinguished between an “assertion” and “evidence” - types of documentary evidence which are required to support an application by a partner - lack of evidence in the terms required by the published policy - importance of context - solicitors knew that he did not qualify under the published policy - lack of a two-year period of cohabitation at the time of making the application - 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 - harmless error - application did not come close to the guidelines - applicant must be of good character - Minister’s consideration of the application was based not on the lack of evidence alone – argued that the Minister failed to “have regard to” the letter from the applicant’s partner confirming the existence of the relationship - 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 - nothing on the face of the decision to suggest that the letter was not considered - an obligation to have regard to a particular matter does not automatically create an obligation to refer to it in narrative form – argued that there is a lack of clarity as to what precise official made the decision - 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 - no infirmity attaches to the Minister’s failure to identify the ultimate decision maker – it has not been established that the ultimate decision maker did not have all relevant information – not properly pleaded – errors in the letter proposing to deport him – he objected to the explanation of this error on the grounds that it was hearsay – affidavit sworn by department official – does not state that he prepared the letter proposing to deport himself - and therefore his explanation as to how the error occurred of a hearsay nature - Minister argued that it was routine that a civil servant could take up a file and swear an affidavit as to its contents - letter is merely a proposal to deport - does not in and of itself infringe any rights - 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 - 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 - 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 - error not material - discretionary factors which would militate against the grant of relief - failure of the applicant to issue any pre-action letter - if the Minister knew the applicant had misunderstood the guidelines as to evidence required, the matter could have been clarified in correspondence - illegally present in the State at all material times - abused the hospitality of the State by becoming involved in an indictable offence – errors in his papers - countervailing questions - balance of discretion is very firmly against him.