High Court refused certificate of leave to appeal on judicial review grounds regarding materiality of factual errors.

Neutral Citation Number: [2010] IEHC 374

THE HIGH COURT

JUDICIAL REVIEW

2010 93 JR

BETWEEN

S.O. & O. O. AND 5 MINORS

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

JUDGMENT of Mr. Justice Cooke delivered the 28th day of October, 2010.

1. This Court having given its judgment in this case on 1st October, 2010, the applicants now apply under s. 5 (3) (a) of the Illegal

Immigrants (Trafficking) Act for a certificate of leave to appeal.

2. The Court has therefore been exposed to the inevitable discomfort of having its own judgment analysed and explained to it as

having two diametrically opposed effects. Counsel for the applicant, Mr. Kelly, generously emphasised the importance and

thoughtfulness of the judgment while diplomatically explaining that it was in the public interest to have it overturned on appeal. Mr.

O’Reilly, on the other hand, on behalf of the respondent, acknowledged the soundness and correctness of the judgment while

necessarily suggesting that it was so devoid of controversy or innovation as to be deprived of any need for reconsideration on appeal

in the public interest.

3. When the application was first before the Court Counsel for the applicant put forward a number of proposed points of law or

grounds for the appeal certificate. With a view to concentrating the argument before the Court, the Court modified those proposals

and the two grounds which it put forward were accepted as the basis for proceeding with the argument and were as follows:

(i) Where it is established or conceded that the respondent decision maker has erred in a matter of fact in the course of

making an assessment which requires the balancing or proportionality of opposing interests, is it permissible at the leave

stage or at any other stage of a judicial review application for the court, without substituting its view for that of the

decision maker, to determine that the error was not material to the overall consideration such that a “substantial ground”

for the grant of leave based on that error has not been made out?

(ii) Whether the High Court was correct in law in construing the term “substantial ground” as employed in the context of

the Illegal Immigrants Trafficking Act 2000 and in the wording of s. 5 (2) (b) in particular, to the effect that it was

entitled to have regard on an application for leave not only to whether a ground was “reasonable, arguable and weighty”

but also as to whether it was susceptible of a definitive answer which would not be altered by the adducing of evidence,

the filing of grounds of opposition or by being reargued at a further substantive hearing?

4. Counsel for the applicants informed the Court that since the delivery of the judgment one change of circumstance had occurred in

that Mr. O. had voluntarily returned to Nigeria so that no formal execution of the deportation order by the State was now necessary.

Although this could be said to render the issue as to the validity of the deportation order moot, Counsel told the Court that Mr. O.

had instructed his solicitor that he wished to proceed with an appeal if the certificate for that purpose was issued. Given that one of

the consequences of a deportation order is that the addressee may never re-enter the State unless the order is quashed or revoked,

it is clear the Mr. O. has the necessary locus standi to proceed with an appeal and to seek a certificate for that purpose. The

application therefore falls to be decided on the basis of the criteria laid down in the section for such a certificate namely “that the

judgment of the court ‘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’.”

5. The approach of the Court to the application of these criteria as apparent from the case law was reviewed by this Court in its

judgment of 26th November, 2009, in I.R. v. MJELR [2009] IEHC 510. The principles distilled from that case law were sought to be

summarised in para. 6 of that judgment and it is unnecessary to repeat them here.

6. As indicated in that summary, the point of law to be certified must be of exceptional importance and arise in an area of law which

is sufficiently uncertain for its clarification by an appeal to be desirable in the public interest.

7. Attractive though it may be for a court of first instance to satisfy its curiosity as to the correctness of its judgments, this Court

finds it difficult to concede that the judgment in the present case either created or reflected any important issue of legal uncertainty.

In truth, most of the judgment was devoted to issues that arose during argument in the case as to how the concept of “substantial

ground” should be approached in the context of judicial review directed at a decision involving a balancing exercise between the

rights of the proposed deportee and his family and the interests which the State sought to protect by the deportation. This debate

was provoked by the judgments of the Supreme Court in the case of Meadows v. MJELR.

8. Insofar as the first of the above points of law is concerned, the Court considers it very clear that no novelty of jurisprudence was

involved. The file note explaining the reasons for the deportation order was admitted to contain a mistake of fact. Having assessed

the appraisal made of the application in its entirety and considered the reasons given, the Court judged that the mistake was not so

important or material as to jeopardise the legal basis for the decision. The principle that only a material mistake of fact will vitiate the

legality of an administrative or quasi-judicial decision is not new law.

9. So far as administrative law generally is concerned, the Court takes it to be well settled that an error of fact by an administrative

or quasi-judicial decision maker will not render the decision unlawful unless it leads to an error of law and results in the decision maker

exercising a jurisdiction it did not otherwise have. As Kearns J. said in Ryanair Ltd v. Flynn [2000] 3 I.R. 240 at 361:

“It is a fundamental rule of administrative law that bodies entrusted with executive tasks are entitled to err within

jurisdiction without having the High Court act as a court of appeal. Accordingly, the court can only intervene where an

error has as its consequence the making of an order which the tribunal had no jurisdiction to make or the decision is

wholly grounded on an erroneous view of the law.”

10. It is true that in recent years a distinction has been suggested in cases where human or constitutional rights of an applicant are

involved notably in the area of asylum law. (See, for example, the judgment of Finlay Geoghegan J. in AMT v. Refugee Appeals

Tribunal [2004] 2 I.R. 607.) Even there, however, it is only a material error of fact vitiating the issue the decision-maker is required to

decide which may have this effect. In that case it had been conceded that the tribunal member had been mistaken in understanding

that the applicant had given evidence of having travelled from France to Germany by bus. Finlay Geoghegan J. pointed out that this:

“… was not a factual issue in dispute upon which the tribunal member was adjudicating. Rather, the tribunal member

was required to adjudicate upon the credibility of the applicant and his story…. The error of fact made is as to what was

the story told or the evidence given.”

She also pointed out however:

“In reaching the above conclusion I do not wish to suggest that every error made by a tribunal member as to the

evidence given will necessarily render the decision invalid. It will obviously depend on the materiality of the error to the

decision reached.”

That point of law could not therefore be said to be of public importance let alone of exceptional importance.

11. So far as concerns the second point of law proposed, the answer is to be found in para. 39 of the judgment. The Court did not

purport to alter the construction to be given to the term “substantial ground” as originated in the MacNamara case but merely to

apply that concept in the context of s. 5 of the Act of 2000. The judgment of Carroll J. in MacNamara was never authority for the

proposition that a ground which was on its face and taken in isolation “reasonable, arguable and weighty” should necessarily be

remitted to a substantive hearing. The passage from which those often quoted words come explicitly acknowledged that such a

ground would not be substantial if the point upon which it was based had already been decided in another case. Clearly, the point in

question must necessarily have been “substantial” when first raised but then ceased to be “substantial” when decided in the earlier

case.

12. What this Court intended to convey in that regard was that a ground put forward as “substantial” in that sense may, upon full

debate at a leave hearing, be capable of answer for reasons other than its having been “decided in another case” and thereby not

merit being characterised as substantial.

13. The Court’s judgment is, at most, a gloss upon the MacNamara test. It is confined to one specific aspect of judicial review and

one statutory context. It does not therefore transcend the present case to an extent that would bring it into the realm of a point of

law of exceptional public importance rendering an appeal desirable in the public interest.

14. For these reasons, accordingly, the certificate will be refused.