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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> J. C. E & Ors v Minister for Justice and Equality & Ors (Approved) [2025] IEHC 183 (28 March 2025) URL: https://www.bailii.org/ie/cases/IEHC/2025/2025IEHC183.html Cite as: [2025] IEHC 183 |
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THE HIGH COURT
JUDICIAL REVIEW
[2025] IEHC 183
Record No. 2024 1611 JR
BETWEEN
J. C. E., A. C. E., A MINOR SUING BY THEIR MOTHER AND NEXT FRIEND J. C. E., A. C. E., A MINOR SUING BY THEIR MOTHER AND NEXT FRIEND J. C. E. AND A. A., A MINOR SUING BY THEIR MOTHER AND NEXT FRIEND J. C. E.
APPLICANTS
AND
THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
RULING of Ms. Justice Siobhán Phelan, delivered on the 28th day of March, 2025.
INTRODUCTION
1. This case comes before me as a challenge to the decision of the Minister that removing the Applicants to Nigeria is not contrary to s. 50 of the International Protection Act 2015 (hereinafter "the 2015 Act").
BACKGROUND
2. By way of general background, the First Named Applicant made an application for International Protection in the State on the 20th of January, 2021. The Applicant's protection claim was based on her political affiliation and association with the Indigenous People of Biafra. An International Protection Officer investigated and considered the application which by then included her infant children, triplets, born in February, 2021.
3. The International Protection Officer recommended that the Applicant should be given neither a refugee declaration nor a subsidiary protection declaration. Following this, the Minister then considered in accordance with s. 49 of the 2015 Act whether to give the Applicant a permission to remain under that section. The Minister decided to refuse to give the Applicant (together with her children) permission to remain.
4. The Applicant was notified of the International Protection Officer's recommendation to refuse to give a refugee declaration or a subsidiary protection declaration and the Minister's decision in respect of permission to remain under s. 49(4) on the 1st of August, 2022.
5. The Applicant appealed to the International Protection Appeals Tribunal (hereinafter "the IPAT") and the appeal was heard on the 11th of November, 2022. The Applicant was legally represented at the appeal. In addition to her political affiliation, she referred to her infant daughter, one of triplets, born in Ireland in February, 2021, and a risk of Female Genital Mutilation (hereinafter "FGM.") This was raised as a risk for the first time just 17 days before the appeal hearing. The First Named Applicant referred to the tradition of FGM in her husband's family and the fact that her sister-in-law's child had been subjected to FGM.
6. In its decision, the IPAT accepted that country of origin information (hereinafter "COI") supports a conclusion that FGM may present a risk to a child notwithstanding that her mother is an educated woman who objects, as the First Named Applicant does. The IPAT concluded, however, that the risk did not arise in the case of the Applicant's daughter relying on the complete failure of the Applicant to mention the risk at any stage before the appeal hearing without a reasonable explanation for the omission. The IPAT considered evidence of postpartum depression and exhaustion in caring for children alone in reaching this decision. This decision has never been challenged. It is noted that the First Named Applicant's account of events leading to her claiming international protection was rejected as not credible by both the IPO and the IPAT.
7. Following the rejection of the appeal by the IPAT, the Minister reviewed the previous permission to remain decision under s. 49(7) of the 2015 Act, on foot of submissions made on behalf the Applicant under s.49(9) of the 2015 Act. The First Named Applicant was notified of the decision to refuse permission to remain on the 25th of June, 2024.
8. As part of the leave to remain process, the First Named Applicant had submitted evidence in relation to a medical matter and this was considered under s. 49(3)(b) of the 2015 Act, where it was found that it did not breach either Article 3 or Article 8 of the ECHR and did not give rise to a basis for the grant of permission to remain. There is no evidence that any further mention of a risk of FGM or new information in relation to risk of FGM was made on behalf of the First Named Applicant in submissions made in support of the leave to remain application. This is striking in circumstances where it appears that the First Named Applicant's legal representatives continued to rely on her political involvement in the submissions made.
9. The First Named Applicant also made representations during the International Protection Process regarding the prohibition of refoulement. These representations do not appear to have been put before me in evidence, but it was confirmed in response to questioning from me that no reliance was placed on the risk of FGM in the refoulement representations made. By email on the 26th of March, 2025, after I had finished hearing the leave application, representations made on behalf of the Applicant under s. 49 following the IPAT refusal of protection were sent to the Registrar. These representations were not put on affidavit in support of the leave application. I have read them simply to confirm my understanding that a risk of FGM was not referred to.
10. The First Named Applicant was advised of a decision in respect of the s. 50 representations made by letter dated the 4th of October, 2024. At that time, she was also served with a deportation order made on the 2nd of October, 2024, pursuant to s. 51 of the 2015 Act.
11. In response to this correspondence, it appears that an application was made pursuant to s. 3(11) of the Immigration Act, 1999 (hereinafter the "1999 Act") seeking revocation of the deportation order. Although the grounding affidavit refers to this and says it is exhibited, the said s. 3(11) application is not contained in the exhibits to the affidavits before me. I have no further information in relation to this application although I note that in her affidavit sworn on the 18th of March, 2025, immediately in advance of a fourth adjourned date, the Applicant confirms that the application was made on the basis of risk of FGM and concerns for another child due to a diagnosis of autism. The autism concern had already been addressed, it seems, in the leave to remains submissions advanced.
PROCEDURAL MATTERS
12. This matter first came into the Monday list as an ex parte leave application on the 10th of February, 2025, on foot of papers filed in the Central Office on the 23rd of December, 2024. When the matter first came before me on the 10th of February, 2025, neither soft nor hard copy papers were available to the Court, despite a practice requirement in the asylum and immigration list to file them in advance of the leave application. It was adjourned for one week for papers to be lodged.
13. On the 17th of February, 2025, the matter was again adjourned as Counsel and Solicitor were not available and had requested a later date through the Registrar, which request was facilitated.
14. When it next came before me on the 24th of February, 2025, I queried as to where the missing exhibits were with reference to the leave to remain and refoulement submissions and specifically asked whether submissions in reliance on FGM had been made. On that date the application was adjourned to the 10th of March, 2025. A further adjournment was granted on the 10th of March, 2025, for an affidavit addressed to delay in moving the application to be filed. This supplemental affidavit was sworn by the Applicant on the 18th of March, 2025.
15. Soft copy papers finally appear to have been delivered to the List Registrar on the 19th of March, 2025. No written submissions were lodged in support of the application contrary to the practice in this list.
16. The leave application came back before me on the 24th of March, 2025, when I indicated that I would take an opportunity to consider the affidavit handed into court that day because it introduced a new medical report and went beyond the issue of delay and warranted further consideration. I indicated that I would rule on the matter on the 28th of March, 2025.
17. To ensure no injustice to the Applicant, I directed enquiries through the Registrar subsequently as to whether written submissions had been lodged as I was concerned that through some inadvertence, they may have been lost in the system. By email received by the List Registrar on the 26th of March, 2025, written submissions dated that same day were delivered. No submissions had been prepared previously in support of the application, again contrary to the practice in the asylum and immigration list. It is noted that in their terms, factual matters addressed in the belatedly delivered written submissions go beyond what had been averred to on affidavit on behalf of the Applicant, albeit not in any way material to my decision.
APPLICABLE LEGAL PRINCIPLES ON LEAVE APPLICATION
18. As the Applicant maintains that s. 5 of the Illegal Immigrants Trafficking Act, 2000 (hereinafter the "2000 Act") does not apply to the Minister's refoulement considerations under s. 50 of the 2015 Act and s. 50 is not identified expressly under s. 5 of the 2000 Act (as amended), I propose to assess this application based on the lower threshold for leave, namely that of mere arguable grounds as specified by the Supreme Court in G. v. D.P.P. [1994] 1 I.R. 374.
19. The Supreme Court in G v. DPP was dealing with an unopposed application where leave had been refused in the High Court. Finlay C.J., with whom the other two judges agreed, set down the test in the following terms at pp. 377 to 378:
"An applicant must satisfy the court in prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:- (a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20(4). (b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review. (c) That on these facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks. (d) That the application has been made promptly and... within the ... [relevant] time limits... (e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be in order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, in all the facts of the case, a more appropriate method of procedure."
20. The aim of the leave application is to effect a screening process of litigation against public authorities and officers so as to prevent an abuse of the process or trivial or un-stateable cases proceeding, thus impeding public authorities unnecessarily. It is now well settled law that for a prima facie case to be established, it must be arguable. This is a low threshold. The applicable principles are clear. A point of law is only arguable if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success (see O.O. v. Min for Justice [2015] IESC 26). To meet the test of arguability, the Applicant must identify facts upon which a prima facie claim that the decision is unlawful can be advanced based on a stateable legal complaint. These are the two related questions to which I must now turn.
DISCUSSION AND DECISION
21. As already noted, the IPAT decision was made on the 2nd of October, 2024, but proceedings were only filed in the Central Office of the High Court on the 24th of December, 2024, some 2 1/2 months later. Counsel for the First Named Applicant contends that the time limit is three months because a decision under s. 50 is not captured by s. 5 of the 2000 Act. Counsel further contends that an arguable grounds threshold applies. This may be debatable. I anticipate that the Minister might contend that the decision constitutes a collateral challenge on the deportation order and is captured by the line of caselaw which extends s. 5 to such decisions. This question may not yet be settled. Rather than engage further with this issue on an ex parte basis, I propose to deal with this application for leave on the basis that it is governed, as contended on behalf of the Applicant, by the requirements of Order 84 of the Rules of the Superior Courts, 1986 (as amended) as to time and leave threshold rather than s. 5 of the 2000 Act.
22. Even if s. 5 of the 2000 Act has no application, there is nonetheless a clear imperative for an application to be moved promptly. Delay in circumstances where the Applicant is at risk of enforcement action on foot of an extant deportation order and seeks leave to apply for an order restraining such enforcement action requires some explanation in my view. Such explanation was absent in these proceedings as instituted.
23. The First Named Applicant has sought to address this lacuna at my request in the supplemental affidavit sworn on the 18th of March, 2025. She explains her delay on the basis that she had made an application under s. 3(11) of the 1999 Act and liaised with her local TD. She did not wish to "antagonize that process" in circumstances where she had been advised that there was a three-month time limit. Ultimately, she says she was left with no alternative but to commence proceedings because a decision under s. 3(11) had still not been made and the three-month time-limit would have expired without taking steps.
24. Based on what has been put forward, this application for leave to proceed by way of judicial review is not rejected on grounds of delay and I have decided that I should consider the application on its merits.
25. While several arguments are advanced, the core ground of challenge in these proceedings is that the Minister failed to have regard to the Applicant's belief that her dependent daughter was at risk of FGM if she were to be deported to Nigeria in the s. 50 refoulement considerations and therefore failed to properly consider the level of risk arising. It is claimed that this failure to consider the level of risk rendered the s. 50 decision unlawful.
26. In the first instance, it requires to be acknowledged that s. 50 considerations took place in this case at the end of a decision-making process involving several stages. In accordance with s. 50(1) of the 2015 Act, a person shall not be expelled or returned in any manner whatsoever to the frontier of a territory where, in the opinion of the Minister:
(a) the life or freedom of the person would be threatened for reasons of race, religion, nationality, membership of a particular social group or political opinion, or
(b) there is a serious risk that the person would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.
27. In forming his or her opinion of the matters referred to in subsection (1), s. 50(2) of the 2015 Act requires the Minister to have regard to—
(a) the information (if any) submitted by the person under subsection (3), and
(b) any relevant information presented by the person, including any statement made by him or her at his or her preliminary interview and any information presented for the purpose of an appeal by the person under section 21(6).
28. Section 50(3) states a person shall, where he or she becomes aware of a change of circumstances that would be relevant to the formation of an opinion by the Minister under this section, inform the Minister forthwith of that change. Section 50(4) states that a person who, but for the operation of subsection (1), would be the subject of a deportation order under s. 51 shall be given permission to remain in the State.
29. Section 51(1) of the 2015 Act provides for the making of a deportation order in the following terms:
"(1) Subject to section 50 and subsection (1A), the Minister shall make an order under this section ("deportation order") in relation to a person where the Minister— (a) has refused under section 47 both to give a refugee declaration and to give a subsidiary protection to the person, and (b) is satisfied that section 48(5) does not apply in respect of the person, and (c) has refused under section 49(4) to give the person a permission under that section."
30. Accordingly, a deportation order under s. 51(1) of the 2015 Act, such as that made in respect of the Applicants on the 2nd of October, 2024, is only made following a process which involves multiple occasions for substantive consideration of the protection needs, if any, identified. The entitlement of the Minister to rely on the earlier negative decisions of protection bodies was confirmed in E.N. v. Minister for Justice [2021] IEHC 585. It is established that the Minister is entitled to rely on the integrity of earlier un-impugned parts of the process, albeit applying the legal test appropriate to the stage, unless new material or information is advanced requiring separate consideration.
31. Section 51(4) of the 2015 Act deems a deportation order made under s. 51 to be a deportation order made under s.3(1) of the 1999 Act, and accordingly subject to a power of revocation as prescribed under s. 3(11) of that Act. Under s. 3(11) of the 1999 Act, the Minister may by order amend or revoke a deportation order.
32. Section 51(3) of the 2015 Act requires that where the Minister makes a deportation order, he or she shall notify the person specified in the order of the making of the order and of the reasons for it and, where necessary and possible, the person shall be given a copy of the notification in a language that the person understands.
33. On the evidence before me, the prescribed statutory process was followed in this case with the Applicants benefitting from consideration of their application for protection by the IPO and the IPAT before further consideration was given to leave to remain considerations under s. 49 and culminating in a consideration of the prohibition on refoulement under s. 50. By email dated the 27th of March, 2025, submissions prepared on behalf of the Applicants by their then legal representatives dated the 3rd of March, 2023, were delivered, albeit not on affidavit, confirming that extensive submissions, silent as to risk of FGM, were put before the Minister on the Applicants' behalf after the negative IPAT decision to inform subsequent decision making under ss. 49 and 50. At each stage of the process, the Applicants were afforded the opportunity to participate through submissions and this opportunity was availed of.
34. My single greatest difficulty with this application for leave at this juncture is the fact that while it is true that the risk of FGM was not considered in express terms in the s. 50 decision, it appears that no case was ever made to the Minister after the IPAT rejection of the claim that a refoulement risk arose by reason of a risk of FGM. The fact that no such submission had been made was only clarified upon further enquiries made in response to questions I asked when the application was opened before me and was not disclosed on the papers initially filed to ground the application. While not exhibiting the s. 49 review form nor the further representations made by her legal representatives in March, 2023 when first initiating these proceedings notwithstanding that these representations were presumably lodged with the Minister on her instructions and available to her, the First Named Applicant maintains that she was unaware that they did not refer to FGM risks. The issue having been raised by me following a preliminary consideration of the papers, it is now accepted by her that the submissions made no such reference.
35. Frankly, it does not seem plausible that the First Named Applicant was unaware of the contents of the representations made on her behalf, particularly when it is apparent that she engaged through her representatives in the process by providing evidence of various courses undertaken in the State, obtaining character references from various sources in support of her application and submitting evidence in relation to pre-school attendance of the children.
36. The Applicant suggests in her latest affidavit that she never changed her instructions and believes reference to FGM was omitted through oversight and overwork on the part of her former solicitors. She says she did not have sight of the submissions before they were made. Even at that late stage, however, the said submissions were not exhibited although it appeared that her current solicitors had been able to confirm that no reference to FGM was contained in them in response to queries raised by me (and a copy has since been received uninvited through the Registrar without being put on affidavit).
37. Notably, while the issue of FGM risk was raised, considered and rejected by the IPAT, the IPAT decision has not been challenged. For whatever reason, noting without accepting as either plausible or legitimate the Applicant's claim that she was unaware that it was not, the issue of FGM risk was not pursued further in leave to remain representations or in the refoulement representations.
38. The Applicant contends that she was not aware that her claim in this regard was not pursued on her behalf but even if this is so, it seems to me that this is a significant omission. The omission does not suggest that she attached weight to it in her ongoing instructions. The omission is particularly significant when viewed against a background of a previous omission to refer to the FGM risk until immediately before the IPAT hearing and a finding by the IPAT that the claim of risk of FGM lacked credibility, not least because of the Applicant's failure to mention it sooner.
39. Accordingly, the Applicant now seeks to challenge the s. 50 decision based on a failure to consider an FGM risk properly when she herself did not see fit to ensure that mention of her concerns appeared in the representations made on her behalf in either the leave to remain or the s. 50 decision making process in the face of the IPAT's rejection of the credibility of that claim and the clear imperative to put forward a better case if a risk of FGM were to weigh as a factor in the Minister's decision under s. 50.
40. It would be surprising that if the Applicant had a genuine concern about a risk of FGM in respect of her infant daughter that this concern would not have been the focus of further attention in the submissions made during the leave to remain consideration process and the refoulement consideration process. Of course, I accept that the Minister is under a duty to consider the underlying facts of a protection claim which, in this case, included a late claim of risk of FGM made before the IPAT hearing and addressed in the decision of the IPAT following that hearing. That said, it seems to me that it is unarguable but that the Minister was entitled, in circumstances where no further representations were made and the IPAT decision was not challenged, to rely on the rejection by the IPAT of the Applicant's claim for protection (which included an FGM risk) as lacking in credibility, as he did.
41. Nothing further or new in relation to this risk of FGM had been advanced after the IPAT decision requiring separate consideration by the Minister. Nothing was put before the Minister to support a finding on the Minister's part that notwithstanding rejection of the claim on credibility grounds by the IPAT, a basis for considering risk of FGM as a refoulement consideration had nonetheless been established.
42. The incongruity of her position in these proceedings is underlined by the fact that while silent about a risk of FGM following the IPAT decision, the First Named Applicant repeated her reliance on risks because of her political affiliation which had similarly been rejected and continued to rely on medical issues concerning herself and another child.
43. Even if the Applicant's implausible averment that she did not know that risk of FGM did not form part of further submissions made on her behalf is truthful and keeping an open mind in this regard, it is not permissible to mount a challenge against a decision of the Minister under s. 50 of the 2015 Act based on a claim which was never previously made. The Applicant quite simply failed to put anything before the Minister which would have caused him to assess whether a risk of FGM had been substantiated against a background of the IPAT adverse credibility findings and no further representation in this regard.
44. In grounding her application by way of judicial review before me on foot of a late supplemental affidavit, the Applicant appears to rely on information or material that was never relied on previously. For example, she refers to an escalation in violence towards her family in Nigeria and the fact that her uncle was recently killed in an attack motivated by his involvement with IPOB. She exhibits no documentation in respect of this. Where it has not already been put before the Minister as part of the leave to remain or s. 50 consideration process, this is the type of new information which falls to be considered in the context of an application under s. 3(11) of the 1999 Act or a request for reconsideration of s. 50 refoulement risk. Again, it is not clear whether the Applicant has, in fact, relied on the death of her uncle in such submissions as have been made in support of her application that the deportation order be revoked because even now, I have not had sight of these submissions. This new information is not a factor which can be raised for the first time in support of these proceedings.
45. A new claim of familial stigma as a result of one of the triplet's autism also appears to be advanced in these proceedings, supported by exhibited COI which appears never to have been placed before the Minister or, if I am wrong in this regard and the material was put before the Minister previously, then there has been a failure on the part of the Applicant to establish a proper evidential basis for her claim by exhibiting the submissions made to the Minister to demonstrate that this material was presented but was not considered. On the papers before me, it is, in fact, not possible to be satisfied as to what exact case has been made on behalf of the Applicant as part of the leave to remain, refoulement and revocation of deportation order decision making processes, because that material has not been exhibited, as it ought to have been on behalf of the Applicant. It is unsatisfactory that as late as yesterday, additional material, not on affidavit, was being submitted to the Court through the Registrar.
46. Indeed, to further illustrate the difficulties with this application, in her Affidavit sworn on the 18th of March, 2025, the First Named Applicant refers for the first time, at least in these proceedings, to a medical report dated the 10th of September, 2024, which she says she obtained and gave to her TD in response to a request from him for any evidence she could provide of a risk of her daughter being exposed to FGM. This medical report purports to confirm that the First Named Applicant's niece was circumcised aged 2 weeks and presented to a medical centre in Nigeria on the 5th of November, 2023, several months after the IPAT decision in this case.
47. It is unclear from the First Named Applicant's affidavit whether this medical report relates to a second niece, recalling that she had mentioned her niece during the IPAT hearing. On its face, the date of the report post-dates the events referred by the First Named Applicant before the IPAT which means if the report is correct, the First Named Applicant must now have two nieces who were circumcised despite the mother's objection, one of whom died (or at least the IPAT decision records the claim that a niece was "lost"). Without further evidence from the First Named Applicant, one might speculate in the alternative that the report purports to relate to the niece she mentioned during the IPAT hearing but is misdated, gives an incorrect date for presentation before the clinic and discloses either a misunderstanding as to whether the child was "lost" or required medical attention or an inconsistency in the First Named Applicant's evidence.
48. It is also unclear from her Supplemental Affidavit when exactly the First Named Applicant obtained the medical report dated the 10th of September, 2024, or when she gave it to her TD or indeed what her TD did with it. If she obtained it contemporaneously with the date of the report then it would have been possible to provide the report to the Minister before a deportation order was made and the Minister might have been requested to consider it as part of his s. 50(1) considerations. There is nothing to suggest that this happened.
49. If I understand her affidavit correctly, the Applicant did not even provide this medical report to her legal representatives when she gave it to her TD, notwithstanding its apparent relevance to the claim she makes of a risk of FGM. It is indeed extraordinary that this medical report should be exhibited for the first time in these proceedings in March, 2025, several months after the proceedings were initiated by lodging papers in the Central Office in December, 2024, and more than five months after the refoulement decision was communicated in early October, 2024, without there being any evidence that it was ever furnished to the Minister either before making the deportation order or since.
50. For completeness, I note that reference is made to this medical report in the written submissions delivered to me through the Registrar on the 26th of March, 2025 (some three months after proceedings were initiated by filing papers in the Central Office and almost six months after the decision which it is sought to impugn in these proceedings was made). In the submissions (but not on affidavit), it is stated with reference to the date of the deportation order (at para. 17):
"By this time the Applicant was being supported by her local TD, Peter Fitzpatrick TD and who had asked the applicant to provide evidence of FGM in her husband's family. The applicant furnished a medical report dated 24th September 2024 in relation to a medical assessment and treatment of a two week old female child said to be the applicant's husband's niece recently then fallen victim to FGM. The applicant instructs to confirm that this is a second incidence of FGM and that the incidence referred to at the IPAT hearing occurred before her marriage and to another of her husband's nieces. As appears in the applicant's supplementary affidavit of 18th March 2025, the applicant omitted to provide this evidence to her representatives as they communicated with her TD and she believed there was a single file."
This is the first time the First Named Applicant confirms that the medical report relates to a second niece, and she did not make this clear in the terms in which she swore her Supplemental Affidavit when exhibiting the report on the 18th of March, 2025.
51. It appears clear that not only was this information not presented to the Minister as part of the ss. 49 or 50 consideration process notwithstanding that the First Named Applicant was legally represented at all material times and engaged in that process, but it may not even have been put before the Minister as part of the s. 3(11) revocation application. At the very least ambiguity arises in this regard in circumstances where the said application has not been exhibited. My understanding from her affidavit is that the Applicant gave it to her lawyers for the first time for the purpose of her affidavit sworn on the 18th of March, 2025. In this regard, the Applicant avers (at para. 12 of her further Affidavit sworn on the 18th of March, 2025):
"...I believed that I would get a good outcome through my then TD and or my s.3(11) application. I say that while I overlooked to provide my solicitor with a copy of the foregoing Medical Report directly, as he was in contact with (name)TD and had also sent a s3(11) application to the Minister on my behalf, I believed that everything from my solicitor and my then TD would be together in the same file with the Minister."
52. The Minister's decision under s. 50 of the 2015 Act communicated in October, 2024, cannot properly be impugned on the basis of new information or material never before relied upon and produced for the first time in these proceedings. The First Named Applicant's reliance on post-natal depression and difficulties in caring for three infants on her own can carry little sway in respect of the ss. 49 and 50 decision making processes given her apparent ability to engage in other ways as apparent from the material which was advanced (in the form of references and certificates of participation in further training etc). Furthermore, these difficulties whilst understandable on a human level are no answer to the fact that the Minister's decision falls to be scrutinised based on material before him and not material in the Applicant's possession (or power of procurement) which was not put forward before the decision was made. Where she fails to put forward that material having been afforded a reasonable opportunity to do so, she is bound by the consequences of her failure to do so, whatever the reason. Her recourse in such circumstances is to put the information before the Minister, explain why it was not presented before and beg the Minister to reconsider based on the new information. The explanation for the failure to present the material earlier may be relevant to the Minister's approach to accepting to consider the documentation at such a late stage and, indeed, its probative value and the weight to be attached to it.
53. Self-evidently any new, relevant information falls for consideration by the Minister in the context of an application pursuant to s. 3(11) of the 1999 Act that the deportation order be revoked or a further application for fresh consideration under s. 50 of the 2015 Act in the first instance and not by the Court in judicial review proceedings challenging the decision made without the benefit of the information which had not yet been shared with the Minister. Indeed, in the belatedly delivered written submissions send by email on the 26th of March, 2025, reference is made to the yet further avenue of an application under s. 22 of the 2015 Act for consent to submit a subsequent application for protection notwithstanding the refusal of a first application and it seems that an application under s. 22 may also be in train in this case. It is impermissible to maintain a challenge to a decision made before the information or material relied upon was provided to the Minister without first affording the Minister an opportunity to consider that information as part of the decision-making process. It is well established that a failure to consider and weigh material which the Applicant had not put before the Minister at the time the decision was made does not render the decision liable to be quashed.
54. Insofar as there appears to be a typographical error in the recording of the date of birth of the triplets in the papers before me and this is relied upon to suggest a lack of care in the decision making, I do not accept this submission. No significance attaches to the error identified and an error of this kind, which has no impact on the decision made, does not affect the lawfulness of the decision.
CONCLUSION
55. When considering whether a basis for challenging the Minister's refoulement decision has been demonstrated at an arguable ground's threshold, sight cannot be lost of the fact that the First Named Applicant did not seek to maintain or substantiate the asserted risk of FGM in any way as part of her leave to remain or refoulement representations. Where there has been a rejection of the claim by the Tribunal on credibility grounds, it is difficult to get around the fact that there is no evidence before me that the Applicant herself ever referred to it again until after she was served with a deportation order. If the Minister is to be faulted for failing to consider a relevant matter, a basis in fact for this consideration must first be demonstrated.
56. I have concluded that by the standards of a rational, preliminary analysis, the First Named Applicant does not have a prospect of success on the case advanced in these proceedings. For the reasons set out, I must refuse the application for leave in this case.