High Court rejects certificate of leave to appeal on asylum review due to clerical drafting errors.

Neutral Citation Number: [2010] IEHC 408

THE HIGH COURT

JUDICIAL REVIEW

2008 1117 JR

BETWEEN

V. C. B. L.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

JUDGMENT of Mr. Justice Cooke delivered on the 16th day of November, 2010

1. On 15th October, 2010, the Court gave its judgment on an application by the above named applicant for leave to seek judicial

review of an appeal decision of the Tribunal of 16th September, 2008, which had affirmed a negative recommendation made upon his

application for asylum by the Refugee Applications Commissioner. As appears from that judgment, the case turned upon two issues.

First, there had been an admitted mistake in the Tribunal decision under appeal in that the text of the decision referred in several

places to the applicant as having a “D.R. Congolese” nationality, and his country of origin as being “D.R. Congo”. The applicant was,

in fact, a national of the other part of the former Belgian colony, the “Republic of Congo (Brazzaville)”. The second issue arose out of

the fact that there had been an exceptional delay between the hearing of the appeal and the issue of the Tribunal decision which had

occurred only after a threat of judicial review had been made. For the reasons set out in the judgment, the Court held that neither of

these issues gave rise to a substantial ground justifying the grant of leave. The applicant now applies for a certificate for leave to

appeal against the judgment in accordance with s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000.

2. As the basis of the application, two points of law are put forward as being of exceptional public importance as follows:

“(1) Whether the High Court, when determining an application for leave to apply for judicial review, may decline to follow

an earlier High Court judgment on a substantive judicial review application, not on a finding that it was decided on a

wrongful interpretation of the law, but on the basis that the earlier High Court judgment did not set out sufficient detail

concerning the facts of the decision quashed:

(2) Whether a decision of the Refugee Appeals Tribunal that fails to name correctly the applicant’s country of origin is

thereby invalid and liable to be quashed as containing an error on the face of the record.”

3. Leave to appeal can only be granted by the High Court when it is satisfied 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”. The criteria for

the application of that test are well settled in the case law to which the parties have referred on this application and it is

unnecessary to repeat them here. This Court endeavoured to summarise the position in its judgment in I.R. v. MJELR [2009] IEHC 510.

Amongst the criteria identified by the Court in that judgment, it noted that the point of law raised must arise out of the court’s

judgment, and not merely out of some discussion at the hearing.

4. In moving the application, senior counsel for the applicant submitted that the first point of law proposed concerned the apparent

departure in the judgment from an established practice of judicial comity whereby a judge of the High Court was required to follow an

earlier judgment. This was so because, he argued, this Court had declined to follow the judgment of O’Donovan J. in A.B-M. v. MJELR

and Others (Unreported, 23rd July, 2001), in which precisely the same error had occurred in a decision of the corresponding asylum

appeals authority as regards the confusion between the two Congo states. Counsel laid particular emphasis on the fact that there is

now a very large number of High Court judges and that there had been no pronouncement on the part of the Supreme Court giving

guidance as to the circumstances in which individual members of that bench ought to regard themselves as bound by earlier

judgments of the same court.

5. Flattered as any court will be at the suggestion that its judgment involves a point of law of exceptional public importance, this

Court feels obliged to disappoint the expectations of the applicant by saying that it fears the present application is based upon a

misunderstanding and (it is to be hoped,) a misreading of the judgment in question. In effect, the present application appears to be

distracted by the coincidence of the particular mistake common to decisions considered in the cases, namely, that of confusing the

names of the two now independent states, Democratic Republic of Congo and Republic of Congo (Brazzaville).

6. Contrary to the submission made, this Court did not intend to dissent from the approach of O’Donovan J. to the legal concept of

“error on the face of the record”. The Court endeavoured, and had intended to distinguish, the particular circumstances of the

present case from those which were before O’Donovan J. in the A.B-M. case so far as the Court was able to discern what those

circumstances were from the text of the judgment. In effect, this Court felt that the deficiency in the RAT decision was attributable

to a series of failures to proof-read the terminology of the Tribunal’s decision because, in a number of places, the state in question

was correctly named and, more importantly, the underlying background facts and information had been correctly addressed. Secondly,

the Court had pointed out that the error in question was an error of fact and, as such, could only lead to an error of law if it was

material to the validity of the jurisdiction which was being exercised. It cannot, in the judgment of the Court, be said to be a point of

law of exceptional public importance that an error on the face of the record must be an error of law, and that an error of fact will only

satisfy that criterion if it leads to an error of law. This Court did not therefore refuse to follow any precedent of law which might be

said to have been established by O’Donovan J. in the A.B-M. case: the Court endeavoured to apply the same law to the distinct

factual features of the present case.

7. The second point of law proposed to be raised does not, in the judgment of the Court, qualify either as one of exceptional public

importance which renders it necessary or desirable in the public interest that there be an appeal. The reason for so holding is to be

found in the judgment in question. As is pointed at paragraph 14 of the Court’s judgment, the identity of the particular country of

origin can indeed be “vital” to the validity of the determination of the asylum application because the Geneva Convention requirement

of the refugee being “outside the country of nationality” by reason of a fear of persecution recognised by the Convention, is

fundamental. But the primary consideration in this regard is the identity of the particular source of persecution claimed rather than

the official designation of the state title in question. In the present case, the applicant’s country of origin was, in fact, correctly

named in the Tribunal decision in some places, while being mistakenly designated in other places. The reality of the present case was,

in the Court’s view, that such confusion as arose from the text of the decision was attributable to sloppy draughtsmanship and an

absence of proof-reading of Tribunal decisions before they are signed and not to any substantive mistake in the examination of the

asylum application.

8. For these reasons, the Court is satisfied that the present application does not fulfil the criteria required by s. 5(3)(a) of the Act of

2000, for the grant of a certificate of leave to appeal.

9. The application is rejected.