Minister properly carried out analysis of Nigerian grandmother’s application to revoke her deportation order

Charleton J (majority): Judicial review – family appealing against the decision of the High Court (Hedigan J) to refuse them leave to judicially review the decision of the Minister for Justice not to revoke a deportation order against their grandmother – grandmother has been deported – must seek leave to enter the State - argued that no proper regard was had by the respondent Minister to the right of the children to the company of their grandmother – mother is a Nigerian national who came to this State – two of her children are Irish citizens by virtue of their birth in the State – mother and children have a right to remain in the State – father and mother separated – asked the grandmother to help with the children – grandmother had not applied for a visa beforehand - applied for asylum applied for asylum - stated that she had no grounds to fear persecution as such but that, instead, the focus of her desire to stay in Ireland was the need to look after her daughter and her grandchildren - refused asylum – deportation order issued – submitted representations relating to her family and domestic circumstances in Ireland - matter was reconsidered but decision to deport was not overturned – initiated challenge to the deportation - sought injunctive relief against the deportation - action was settled by consent of the parties - whether the terms of settlement were later breached – terms of the settlement were that the grandmother’s application to revoke the deportation order would be considered - application to have her deportation order refused – High Court refused her leave to judicially review this decision – mootness – whether the appeal is moot - grandmother has already been deported - courts do not grant advisory judgments - presumption against issuing judgments on moot points – deportation order has an enduring effect on her eligibility to return to Ireland - wrong simply due to the fact that a deportation has occurred to rule that any application as to the legality of the process leading to that ostensibly final stage of the asylum system was rendered moot - deportation from the State makes a non-national subject to a continuing disability should that person wish to return - test for leave to commence judicial review - an application to the Minister to revoke or reconsider a deportation order is not subject to the more stringent test applied in asylum and immigration matters of substantial grounds - the test to be applied is the general test at common law for allowing leave to commence judicial review proceedings - nothing to suggest that the test was not properly applied - general rule applied by the courts in the conduct of litigation is that parties should make the entire case that is available to them based on the facts which they assert entitle them to a remedy - parties to litigation cannot expect to achieve a different result by repeating the same facts or arguments - in administrative law, a body or person charged with making a decision is entitled to rely upon a previous fair and appropriately structured analysis of the essential circumstances of an applicant for relief - re-analysis may only become necessary where there has been a change of circumstances or new facts have come to light which were not readily obtainable on the earlier application - the Minister is not obliged to entertain an application for revocation under s. 3(11) unless it is based upon some new fact or information - the only delay which has arisen is attributable to their litigation - the requirement for some new information - correspondence invited the decision maker to engage in correspondence whereby further information might be forthcoming - obligation is on the applicant seeking that the deportation order be overturned to put whatever relevant material exists before the Minister - no obligation on the Minister to engage in correspondence – family rights - rights of the family based on marriage may need to yield to the entitlement of the State to legitimately provide for a rational and considered immigration policy - the rights of the family are not absolute - there is no general entitlement of non-nationals to establish a domicile absent appropriate national permission - obligation on a person seeking to overturn a deportation order by representation to the Minister is to make their best case then; and not to seek to make a better case only when leave to commence a judicial review application is sought.

Clarke J (dissenting): Judicial review - appeal against a refusal to give leave to seek judicial review in immigration proceedings - whether these proceedings are moot whether these proceedings are moot - if it were to be the case that a challenge to a deportation order (or, indeed, as here, a challenge to a refusal to revoke same) were always to be considered moot once the relevant deportation had taken place, then this could have a very significant effect on injunction proceedings - settlement of the previous proceedings - parties did not agree that the deportation order should be revoked - agreed that there should be a fresh consideration of whether that order should continue in force - threshold which must be met before leave can be granted - not one of those cases where substantial grounds need to be established - threshold is placed at a low level - some prospect of success - whether the full case, now sought to be relied on, was put before the Minister on the occasion when the decision to refuse to revoke - matter is being considered only for the purpose of establishing whether there is a stateable case – arguable that proper consideration was not given to the additional factor of the potential psychological harm to the relevant children – additional ground of: the Minister failed to give adequate consideration to the effect which the departure of their grandmother from Ireland at the relevant time might have had on the infant applicants in the particular context of the assertion that such a departure would have an effect of particular and professionally verifiable emotional trauma on those children.