High Court refuses leave to appeal on exceptional public importance grounds due to lack of full investigation into asylum claim.

Neutral Citation Number: [2008] IEHC 395

THE HIGH COURT

JUDICIAL REVIEW

2005 868 JR

IN THE MATTER OF THE REFUGEE ACT 1996, (AS AMENDED),

IN THE MATTER OF THE IMMIGRATION ACT 1999,

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

J. I.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

Judgment delivered by Mr. Justice Herbert on the 5th day of December 2008

1. The respondents in this application seek leave, pursuant to the provisions of s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act

2000, to appeal to the Supreme Court from the judgment of this Court delivered in the instant case on the 11th December, 2007. The

subsection, which is in very categorical terms, provides as follows:-

“The determination of the High Court of an application for leave to apply for judicial review as aforesaid or for an

application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme

Court in either case except with the leave of the High Court which leave shall only be granted where the High Court

certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public

interest that an appeal should be taken to the Supreme Court.”

2. The wording of the subsection, in my judgment conveys a very clear and unambiguous intention on the part of the Legislature that

such appeals should not be allowed as a matter of course, or because some party to the application feels aggrieved by a particular

decision of the High Court. (Raiu v. The Minister for Justice, Equality and Law Reform and Others (Unreported, High Court, Finlay

Geoghegan J., 26th February, 2003)).

3. The rule of law which was formerly referred to as “cause of action estoppel” and, is now regarded as part of the law of “res

judicata” was stated by Wigram V.C. in Henderson v. Henderson (1843) A.E.R. (1843-60) 378 at 381-2, as follows:-

“I believe I state the rule of the Court correctly, when I say, that where a given matter becomes the subject of litigation

in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring

forward their whole case, and will not (except under special circumstances) permit the same parties to open the same

subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but

which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of

their case.”

4. Apart from the stated exception of “special circumstances” the courts have always been concerned that this rule of the courts,

which appears to be based on the public policy consideration that there should be an end to litigation, should work justice and equity

and not injustice. In Carl Zeiss Stiftung v. Rayner and Keeler Limited [1966] 2 A.E.R. 536 at 537, Lord Upjohn held that:-

“All estoppels are not odious but must be applied so as to work justice and not injustice . . . “

5. In Yat Tung Investment Company Limited v. Dao Heng Bank Limited [1975] A.C. 581 at 590, Lord Kilbrandon held that:-

“The shutting out of a ‘subject of litigation’ - a power which no court should exercise but after a scrupulous examination

of all the circumstances - is limited to cases where reasonable diligence would have caused a matter to be earlier raised;

moreover, although negligence, inadvertence or even accident will not suffice to excuse, nevertheless ‘special

circumstances’ are reserved in case justice should be found to require the non-application of the rule.”

6. In Moorgate Mercantile Company v. Twitchings [1975] 3 A.E.R. 314 at 323, C.A. Lord Denning, M.R., stated that:-

“Estoppel is not a rule of evidence. It is not a cause of action. It is a principle of justice and of equity.”

7. In the case of The Mekhanic Evgrafou (No. 2.) [1988] 1 Lloyds Reports, 303, the court referred to special circumstances of law or

fact and again referred to what was just and unjust.

8. The concerns expressed by Lord Kilbrandon about shutting out a “subject of litigation”, is a matter of even greater concern in this

State, where the non-citizen as well as the citizen enjoys a constitutionally guaranteed right of access to the Courts, (see Re. Article

26 and s. 5 and s. 10 of the Illegal Immigrants (Trafficking) Bill 1999, [2000] 2 I.R. 360 at 385 per. Keane C.J.).

9. On the facts which I found in the instant case, I was fully satisfied that there were special circumstances which required the non

application of the rule in Henderson v. Henderson and, that to apply that rule would in those special circumstances work a serious

injustice.

10. In Arklow Holidays Limited v. Wicklow County Council (Unreported, High Court, 2nd February, 2008), Clarke J. held in the context

of s. 50(4)(f) of the Planning and Development Act 2000, that the rule of law stated in Henderson v. Henderson (above cited),

applied to an application for leave to seek judicial review in relation to a planning decision by An Bord Pleanála. The learned Judge

therefore held that the applicant for judicial review in that case, was estopped from raising issues before the Court which it had failed

to raise during the course of an earlier application for judicial review in relation to the decision of the Planning Authority in respect of

the same development.

11. In my judgment in the instant case, delivered on the 11th December, 2007, I held that the same rule of law did not apply on the

specific facts which I found to exist in that case. I am unable to accede to the argument so ably advanced by Mr Barron S.C. on

behalf of the respondents, that this has resulted in an uncertainty as to the state of the Law in this State, which transcends the

facts of the instant case, giving rise to a point of law of exceptional public importance and, which it is desirable in the public interest,

should be taken before the Supreme Court on appeal.

12. An uncertainty with regard to the application or not of a particular rule of law in different factual situations is not necessarily a

matter of, “exceptional public importance”. In my judgment, to meet that criterion the point of law involved would have to be a

frequently recurring one, determinative of important rights or obligations of the public generally, or of a particular clearly identifiable

and numerous section of the public.

13. It is a rule of statutory interpretation that every word of an Act of the Legislature must be given its due weight. Further, the

words “exceptional public importance” must be given their natural and ordinary meaning since they are not given any special definition

in the Act and, do not in my judgment, acquire any such meaning from their context. The primary dictionary definition of “exceptional”

is “unusual”. It is therefore clear that the Legislature intended that the point of law arising must be one of more than usual general

importance.

14. Even that is not sufficient. As was pointed out by McKechnie J. in Kenny v. An Bord Pleanála (Unreported, High Court, 2nd March,

2001), the Legislature imposed a dual test. This Court must additionally be persuaded to certify that, “it is desirable in the public

interest” that the opinion of the Court of Final Appeal be obtained on the particular point of law, despite the general provision in the

subsection that the determination of the High Court should otherwise be final.

15. The rule of law in Henderson v. Henderson is now probably too well settled to be overruled or to admit of any variation or change.

However, the question of whether it will or will not be applied in any particular case must depend entirely upon the specific facts

found in the individual case. The decision of this Court in the instant case was that the rule should not apply by reason of the special

circumstances disclosed by the specific facts found to exist in that case. No new rule of law was stated in reaching that decision, nor

was the existing rule of law applied in any novel way.

16. As was pointed out by MacMenamin J. in Glandore Teo., v. An Bord Pleanála [2006] I.E.H.C. 205, the law does not become

uncertain simply because a dissatisfied party raises a question as to a point of law. Further, even if the decision of this Court in the

instant case involved a point of law capable of general application, there was no evidence before the Court that it had ever

previously arisen in the past or was ever likely to arise again in the future with any frequency. In my judgment the point of law which

arose in the instant case might in ordinary course raise an interesting argument on Appeal to the Supreme Court but, I decline to

certify that it is a point of law of exceptional public importance which it is desirable in the public interest should be taken on appeal to

the Supreme Court.

17. In Hamid-Yacef v. The Minister for Justice, Equality and Law Reform and Dympnia Cusack, (Unreported, High Court, 4th October,

2002), Smyth J. held that the Scheme established by the Refugee Act 1996, is inquisitorial in nature and, that the process of enquiry

is not that of a lis inter partes. This is further reflected in the judgment of Edwards J. in D.V.T.S. v. The Minister for Justice, Equality

and Law Reform [2007] I.E.H.C. 451 at 457.

18. In Thoday v. Thoday [1964] 1 A.E.R. 341 at 351, Lord Diplock held that:-

“If this Court is required to exercise an inquisitorial function and may inquire into facts which the parties do not choose to

prove, or would under the rules of the adversary system be prevented from proving, this is a function to which the

common law concept of estoppel is alien.”

19. In the course of my judgment in the instant case I did not decide and, I do not now decide, whether this Court in determining an

application for judicial review in an asylum matter is or is not exercising an inquisitorial function.

20. As a general rule, the Refugee Appeals Tribunal has no obligation to go behind the specific terms of a notice of appeal submitted

to it. It is a matter for the applicant and, his or her legal advisers, to ensure that the notice of appeal is fully comprehensive. Unless

expressly raised as a ground of appeal before it, there is generally no duty on the Refugee Appeals Tribunal to determine whether the

case made by the applicant to be afforded refugee status was fully and properly considered and determined by the Refugee

Applications Commissioner.

21. However, where, as in the instant case, in the course of adjudicating upon the specific grounds of appeal contained in the notice

of appeal and, acting strictly within the confines of s. 16(16)(e) of the Refugee Act 1996, (as amended), it must be obvious to the

Refugee Appeals Tribunal, that the actual case made by the applicant in the Application for Refugee Status Questionnaire to be

granted asylum in this State, was not considered at all, or became sidelined and overlooked and was effectively disregarded by the

Refugee Applications Commissioner, I found that a very different situation arises. In such circumstances, having regard to the purpose

and object of s. 16 of the Refugee Act 1996, (as amended), and the entire Code of Refugee Law, as giving effect to the obligations

assumed by this State pursuant to the Geneva Convention of 28th July, 1951, the New York Protocol of 31st January, 1967 and the

Dublin Convention of 15th June, 1990, in respect of persons seeking asylum in this State, to the gravity of the matter under

consideration, involving as it does issues of important human rights and fundamental freedoms and, also to the possible consequences

for an asylum seeker of being wrongfully returned to his or her country of origin, I considered that the Refugee Appeals Tribunal had a

duty to at least inquire whether the applicant had abandoned his or her original grounds for seeking asylum in the State.

22. If requested, the Refugee Appeals Tribunal should afford the applicant an opportunity of amending the grounds of appeal. An

applicant without legal representation should be given an opportunity of seeking legal advice if he or she so wishes. The Refugee

Appeals Tribunal should not otherwise involve itself in the matter.

23. It is only on such clear and unequivocal facts being found that this obligation on the part of the Refugee Appeals Tribunal will

arise. The original claim and the total or effectively total failure to consider it, must both be manifest on the face of the documents

which the Refugee Appeals Tribunal is obliged to consider by virtue of the provisions of s. 16(16)(e) of the Refugee Act 1966, (as

amended). There can be no question of construing or interpreting the claim made or of arguing that the claim was not considered

because of the quality of the consideration given, or any other form of submission based on any alleged constructive failure to

consider the applicant’s actual story.

24. In granting leave to seek judicial review in the case of Imoh and Others v. Refugee Appeals Tribunal and Another (Unreported,

High Court, 24th June, 2005), Clarke J. held that:-

“Where the applicant chooses not to raise the issue in the notice of appeal or to refer to the matter at the appeal

hearing, I do not believe that there is any basis for suggesting that there was any inappropriate failure on the part of the

Refugee Appeals Tribunal to deal with the matter in the course of its determination.”

25. While that judgment was not opened to this Court at the hearing of the application for judicial review in the instant case, the

court was aware of it. The fact that it was overlooked by careful and learned counsel practising in the field of Asylum Law is scarcely

surprising as almost all of the judgments of the High Court on this topic remain unreported.

26. I am satisfied that there is no confusion as to the state of the Law arising from the judgment in that Application and the judgment

in the instant case. The decision in the Imoh case is entirely distinguishable on its facts from the instant case.

27. In the Imoh case the applicant for leave to seek judicial review claimed to have a well-founded fear of persecution in her alleged

country of origin on the grounds that, her daughters would be subjected to female genital mutilation, that she would be forced to

marry against her wishes and, that state and police protection was not available to her in the capital city of the that country. It is

clear from the judgment of Clarke J. that the female genital mutilation and, lack of state and police protection aspects of her claim

were fully considered, as was the issue of her general credibility. Clarke J. found that the Report of the Authorised Officer of the

Refugee Applications Commissioner, made pursuant to the provisions of s. 13 of the Refugee Act 1996 (as amended), did not make

any specific mention of the applicant’s claim that she feared a forced marriage if returned to her alleged country of origin. The learned

Judge also found that no ground of appeal was put forward to the Refugee Appeals Tribunal that the Refugee Applications

Commissioner had failed to deal with that issue.

28. The extent to which the applicant’s case was otherwise extensively considered and determined may be gathered from the

following findings of Clarke J. He held, that the applicant had substantial grounds for contending that the Refugee Appeals Tribunal

had erred in fact in concluding that state and police protection from female genital mutilation would be available, where there was no

evidence to that effect and, the obvious inference from the evidence was to the contrary. He held, that properly analysed, the

decision as to her credibility was based on a range of factors which taken cumulatively had potential to justify the decision reached.

He held, that some degree of adverse inference could be drawn from the absence of any identity documents and, the lack of any

reasonable explanation for their absence. He held, that the applicant’s account of her reception at Dublin Airport ran contrary to well-

known facts in relation to immigration procedures at that Airport and, was based on matters of common knowledge which did not

require evidence and, was not mere conjecture.

29. There can, in my judgment, be no doubt but that the applicant’s claim and the evidence in the Imoh case, were substantially and

very carefully considered. By way of complete contrast, I found as a fact, in the instant case, that the decision recommending that

the applicant should not be granted asylum in this State was reached without fully and properly investigating all, or some very

material aspects of the claim made by him. The situation went far beyond a failure to observe the rule stated by Finlay Geoghegen J.

in Traore v. The Refugee Appeals Tribunal [2004] 2 I.R. 607, and extensively followed and applied since. It was only because of this

specific finding of fact that I concluded that to permit a form of estoppel by pleading would be contrary to the concept of refugee

recognition and the intent and purpose of the recommendations and guidelines contained in the United Nations High Commissioner for

Refugees Handbook on Procedures and Criteria for Determining Refugee Status. Had the situation been in the instant case, as I am

satisfied it was in the Imoh case, that the applicant’s claim was substantially and carefully considered but that a single aspect of

that claim was not the subject of any determination in the report of the Refugee Applications Commissioner and, this had not featured

as a ground of appeal in the Notice of Appeal to the Refugee Appeals Tribunal, it is more than probable that I should have reached

the same decision as Clarke J. in the Imoh case with regard to the estoppel issue.

30. I am therefore unable to accede to the submission made on behalf of the respondents that the requirements of s. 5(3)(a) of the

Illegal Immigrants (Trafficking) Act 2000, have been satisfied in this case and, I must therefore decline to certify that an Appeal

should be taken to the Supreme Court.