Supreme Court allows appeal from High Court dismissal of infant's judicial review on abuse of process grounds.

THE SUPREME COURT

Appeal No: 9/2012

Denham C.J.

Murray J.

Clarke J.

Between/

A. (an infant suing by her mother and next friend)

Applicant/Appellant

v.

Minister for Justice and Equality, Refugee Applications Commissioner, Ireland and the Attorney General

Respondents

Judgment delivered on the 14th day of March, 2013 by Denham C.J.

Preliminary Issue

1. This judgment addresses a preliminary issue on the appeal.

2. The Minister for Justice and Equality, the Refugee Applications Commissioner, Ireland and the Attorney General are the respondents

in this appeal before the Court, and are referred to as “the respondents”.

3. The respondents brought a motion before the High Court on the 12th December, 2011, seeking an order dismissing the proceedings

which had been brought on behalf of A, an infant suing by her mother and next friend, the applicant/appellant, referred to as the

“appellant”, on the basis that they were frivolous, and/or vexations, and/or doomed to fail, and/or an abuse of process.

4. An application for leave to apply for judicial review had been brought on behalf of the appellant. By Notice of Motion dated the

22nd August, 2011, the appellant had issued proceedings seeking to quash the recommendations of the Refugee Applications

Commissioner, referred to as “the Commissioner”, dated the 12th July, 2011, and notified to the appellant by letter dated the 2nd

August, 2011, that she should not be declared a refugee.

5. By order of the 19th December, 2011, the High Court dismissed the proceedings on foot of the respondents’ motion, on which date

the High Court delivered a written judgment.

6. The appellant has appealed that decision to this Court.

Appellant’s proceedings – Notice of Motion

7. The appellant brought an application seeking leave to apply by way of judicial review for a number of reliefs, including an order

quashing the decision of the Commissioner that the appellant failed to establish a well founded fear of persecution as defined under s.

2 of the Refugee Act, 1996, as amended. This is referred to as “the decision”.

8. There were also a number of generic reliefs sought, including declarations sought as to the procedures, the transposition of Council

Directive 2004/83/EC of 29 January, 2004, the absence of fair proceedings; a mandamus compelling the respondents to refer the

appellant’s application for asylum for full reconsideration de nova; an injunction restraining the respondents from taking any further

steps in relation to the appellant’s refugee status pending the determination of the proceedings; a declaration that the decision was

in breach of statute, the qualification directive, Statutory Instrument 518/2006, the Procedures Directive, national justice, fair

procedures and was disproportionate.

9. The affidavit sworn for the purpose of verifying the facts set out in the statement required to ground the application for judicial

review was by the appellant’s mother. She deposed inter alia in paragraph 8:-

“I say that adequate State protection would not be available for the [appellant] in Nigeria in the event of her being sent

there and that internal relocation would not be a viable option for her without undue hardship”.

10. The grounds upon which relief was sought in the judicial review were as follows:-

(a) The appellant herein sought asylum in Ireland. Following interviews with servants or agents of the Commissioner

with the appellant’s mother, the application was refused in a decision of the Commissioner dated the 1st June/12th

July 2011. The decision was received by the appellant’s mother and next friend on or about the 5th August 2011.

(b) The Commissioner erred in law and in fact and in breach of fair procedures in failing to have due regard for its

obligations pursuant to the European Communities (Eligibility for Protection) Regulations 2006 and/or Council

Directive 2004/83/EC of 29th April 2004.

(c) The appellant’s claim for a declaration of refugee status under s. 17(1) of the Refugee Act, 1996 (as amended)

has not been, nor cannot by reference to the terms of the Refugee Act, 1996 (as amended), and Council Directive

2005/85/EC of 1st December, 2005 lawfully determined by means of procedure which complies with the minimum

standards required to be met by Council Directive 2005/85/EC of 1st December, 2005 in that the said procedure

deprives or will deprive the appellant of an effective remedy against the first instance determination of her

application for asylum before a Court or Tribunal in compliance with requirements of Ch 5 of the said Directive.

(d) The Decision was reached without consulting sufficiently precise, relevant and up to date country information

from various sources as required by Article 8(2)(b) of the Procedures Directive and is thus invalidated.

(e) No adequate regard has been had to the minimum standards mandated by the Procedures Directive and/or the

Qualification Directive and/or S.I. 518/2006. In particular and without prejudice to the generality of the foregoing no

cooperation took place as between the Commissioner as required by the terms of the Qualification Directive. The

decision should have been provided in draft form to the appellant’s mother prior to its finalisation.

(f) The decision is irrational. Without prejudice to the generality of the foregoing, the decision relies upon the

findings of the appellant’s mother’s claim/refusal. The rejection of the appellant’s claim was based inter alia upon

the following finding: “Given the applicant’s mother has failed to establish that she has a well-founded fear of

persecution in Nigeria, it follows that a well-founded fear of persecution has not been established in this case”. This

is irrational in circumstances where the claims are not identical.

(g) No independent assessment of the appellant’s claim took place. No reliance should have been placed on her

mother’s refusal, particularly, but without prejudice to the generality of the foregoing, in circumstances where the

mother’s application was not subject to the minimum standards demanded by the Procedures Directive.

(h) The Commissioner failed to carry out any or any proper forward looking test as is required by, inter alia the

UNHCR Handbook.

(i) Internal Relocation was not assessed in compliance with the Procedures Directive and/or Qualification Directive

and/or relevant UNCHR Guidelines.

(j) The best interests of the child were not properly taken into account as required by domestic and European Law.

(k) State Protection was not properly assessed in accordance with The Qualification Directive. In particular the

effectiveness of any laws in place was not assessed at all. The availability of any assistance that might be available

to the appellant from NGO’s should not have been considered given the weight that it was.

(l) Insufficient or inadequate or no consideration of the appellant’s application.

11. The return date for the appellant’s motion was the 3rd October, 2011. On that date it was adjourned. There is a lengthy delay in

the High Court in hearing such applications. The appellant’s application for leave to apply for judicial review was never heard.

Respondents’ Notice of Motion

12. By Notice of Motion dated the 11th November, 2011, made returnable for the 12th December, 2011, the respondents sought an

order dismissing the proceedings of the appellant on the grounds that they were frivolous, and/or vexatious, and/or doomed to fail,

and/or an abuse of the process. The respondents’ motion was grounded on a short affidavit of a civil servant in the Office of the

Commissioner. She referred to the ASY 1 Form completed in relation to the appellant on the 28th January, 2008.

13. She deposed:-

“I am advised and believe that the within proceedings are frivolous and/or vexatious and/or doomed to fail, and that they

appear to have been instituted for an improper purpose, namely to create delay in dealing with the [appellant’s] asylum

application.

Strictly without prejudice to the foregoing, I am advised and believe that any complaint about the effectiveness of an

appeal to the Refugee Appeals Tribunal cannot invalidate the recommendations of the Commissioner pursuant to section

13 of the Refugee Act, 1996, as amended.”

Refusal of the reliefs sought by the appellant was sought.

ASY 1 Form

14. The ASY 1 Form referred to in the above affidavit was exhibited. The ASY 1 Form information was provided by the appellant’s

mother. The additional information collected during the s. 8 interview included the following:-

“[Appellant’s] mother stated that she doesn’t know where the baby’s father is living now, she met him in Dublin and used

to call him Danny, he is from Nigeria. [Appellant’s] mother stated that the [appellant] would be in danger in Nigeria.

[Appellant’s] mother stated that the M. (appellant’s mother’s family) can harm the [appellant]. [Appellant’s] mother stated

that after one month if the M. hasn’t seen the baby the baby is in danger. [Appellant’s] mother stated that the M. can

harm her baby they would disable the [appellant] or give it their blood and make the [appellant] sick. [Appellant’s] mother

stated that in Nigeria they usually do circumcision a week after the baby is born, but after if the baby isn’t circumcised

after a week, there is a 50/50 chance of living if it is done later. [Appellant’s] mother stated that this is the reason the

[appellant] cannot go to Nigeria. [Appellant’s] mother stated that the problem is a cultural problem.”

High Court

15. The High Court heard the respondents’ motion on the 12th December, 2011, and a reserved judgment was delivered on the 19th

December, 2011.

High Court Judgment on Respondents’ Motion

16. (i) The High Court stated clearly that it was ruling on the respondents’ motion to dismiss the application for leave to seek judicial

review of a report made by the Commissioner under s. 13 of the Refugee Act, 1996, upon the ground that the application for leave is

either frivolous and vexatious, or doomed to fail, or an abuse of process.

16. (ii) The High Court recited that the appellant is an infant born in the State on either the 25th October, 2010 (according to the

asylum application made on the 28th January, 2011) or on the 28th January, 2011 (according to the s. 13 report).

16. (iii) The appellant’s mother is a national of Nigeria who came to Ireland in 2005, and claimed asylum, which was rejected in a s. 13

report dated the 1st November, 2005.

16. (iv) The High Court recited that the appellant’s claim for asylum was based on the mother’s fear that if she returned with her

daughter to Nigeria the appellant would be subject to forcible circumcision as a result of pressure from the mother’s family and the

village.

16. (v) In the s. 13 report, for which leave to seek judicial review was sought, the claim was rejected; it was stated:-

(a) The appellant was born here and has never been to Nigeria and has never suffered persecution;

(b) State protection would be available to the appellant against circumcision if her mother opposed it, according to

country of origin information;

(c) the threat from the family in the village could be avoided by returning to another location in Nigeria such as Edo

State.

16. (vi) The Court was of the opinion that the grounds proposed in the statement of grounds as to why the s. 13 report was unlawful

and ought to be quashed, was generic and largely unrelated to any specific findings of fact in the report sought to be challenged.

16. (vii) The High Court detailed the grounds of the judicial review and was of the view that the generalised grounds, divorced from

any specific flaws in a challenged decision, raise a prima facie implication that the judicial review proceeding had been commenced as

a delaying tactic only. The learned trial judge went on to say:-

“However, it is not necessary in this case to reach any definitive conclusion on that issue because the Court has

been informed that a notice of appeal to the Tribunal has in any event been lodged as a precautionary measure”.

16. (viii) The learned High Court judge held:-

“It is now well settled in law that where the statutory appeal is available and has been invoked in good time, it is only in exceptional

cases that the High Court will entertain an application for judicial review of the s. 13 report and then only when the report is shown

to have some potentially independent consequence for an applicant which is incapable or inapt to be dealt with by the statutory

appeal”.

16. (ix) The learned High Court judge then continued to hold:-

“Having regard to the fact that the only issue in this case is the reality of the alleged fear that this infant might be

exposed to risk of forcible circumcision against the wishes of her mother if returned to Nigeria, the Court is satisfied that

no valid reason has been advanced as to why the statutory appeal in this case would be inadequate, ineffective, or

inconvenient. In practical terms, as this child has never been to Nigeria and whose existence may not even be known to

her mother’s husband (who has in any event disappeared), the only appealable aspects of the s. 13 report will appear to

turn upon the possibility of a general threat to the child of circumcision in Nigeria and the availability of local protection

against the specific alleged threat from the family or the village, if the mother and child relocated elsewhere. These are

issues that turn upon consultation of country of origin information at this stage and are clearly dealt with adequately and

more conveniently by the statutory appeal.

This therefore is a case in which the leave application is bound to fail because, quite apart from the absence of prima

facie of [sic] substantial grounds for the grant of leave, it is clearly a case in which the Court would in any event require

the applicant to pursue the statutory appeal instead.

The motion is therefore allowed. The proceeding is dismissed.”

17. The appellant appealed against that judgment and order. The appellant seeks an order setting aside the judgment and order of

the High Court.

Respondents’ Motion on the Appeal

18. The respondents have brought a motion seeking an order pursuant to the inherent jurisdiction of the Court dismissing the said

appeal for failure to comply with s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000. In essence, the issue was whether the

appellant required a certificate to appeal the decision of the High Court on the respondents’ motion.

Decision - Is a Certificate Required?

19. It is common case that a recommendation of the Commissioner, which is impugned in the judicial review proceedings, is a decision

within the meaning of s. 5(1)(h) of the Illegal Immigrants (Trafficking) Act, 2000, such that the provisions of s. 5 apply to that

decision.

20. Thus, the issue is whether s. 5(3)(a) applies to these proceedings. Section 5(3)(a) provides:-

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

[Emphasis added.]

21. The net point is whether the order of the High Court of the 19th December, 2011, dismissing the proceedings, is a “determination

of the High Court of an application for leave to apply for judicial review as aforesaid”.

22. In construing the above I am satisfied that the words “as aforesaid” is a reference to an application for leave to apply for judicial

review.

23. Section 5(2) of the Act of 2000 is relevant to this case and it provides:-

“An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in

subsection (1) shall—

(a) be made within the period of 14 days commencing on the date on which the person was notified of the decision,

determination, recommendation, refusal or making of the Order concerned unless the High Court considers that

there is good and sufficient reason for extending the period within which the application shall be made, and

(b) be made by motion on notice (grounded in the manner specified in the Order in respect of an ex parte motion for

leave) to the Minister and any other person specified for that purpose by order of the High Court, and such leave

shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the

decision, determination, recommendation, refusal or order is invalid or ought to be quashed.”

24. The facts of the case, as set out earlier, are that the appellant’s application for leave to apply for judicial review was not heard

by the High Court. What the High Court heard was the motion brought by the respondents seeking an order that the appellant’s

proceedings be dismissed on the grounds that they were frivolous, vexatious and/or doomed to failure. Thus, to decide if the decision

of the High Court on that motion was a “determination” under s. 5(3)(a) requires an analysis of the law and facts.

25. An analysis of s. 5(3)(a) was made in A.B. v. Minister for Justice [2002] 1 I.R. 296. In that case the applicants sought orders

pursuant to s. 5(2)(a) of the Act of 2000 extending time within which to seek relief by way of judicial review. The extension of time

was refused. The applicants appealed to this Court. It was argued that the applicants needed the leave of the High Court before they

could appeal. On the other hand, the applicants submitted that an appeal could be brought without the leave of the High Court. This

Court held that the appeals could be heard, that the issues involved in an application for an extension of time might be substantially

different from those on an application for leave to apply for judicial review, and that there was no ouster of the right of appeal of

such under the Act of 2000.

26. Geoghegan J. considered the various ways an application for an extension of time might arise. He stated at 319:-

“In either event the issues involved on the application for an extension of time may be substantially different from those

involved in the application for leave. Under the express terms of the Act the restrictions on the right of appeal to the

Supreme Court apply to the application for leave or the application for judicial review and as a matter of ordinary grammar

and syntax, I find it difficult to see how it could be argued that there is an ouster of the right of appeal from a refusal to

extend time. If the Oireachtas had intended that, it should have said so. Until the extension is granted there is no

application for leave in existence. But even if as a matter of grammar and syntax, such an argument could be made, there

is certainly not a clear and unambiguous ouster of the right of appeal which is required under the constitutional

jurisprudence …”

27. I would apply that analysis to this case. The issues involved in a motion to dismiss may be substantially different from those

involved in an application for leave to apply for judicial review. I agree and apply the reasoning of Geoghegan J. that the wording of s.

5(3)(a) does not clearly ouster an appeal from such a motion. Further, even if such an argument could be made, there is certainly not

a clear and ambiguous ouster of the right of appeal, such clear language being necessary under the constitutional jurisprudence.

28. Consequently, I am satisfied that the appellant has a right of appeal from the judgment and order on the motion to dismiss

brought by the respondents and decided upon by the High Court.

Conclusion

29. Thus, the appellant is entitled to bring an appeal, without a certificate of the High Court, from the decision of the High Court to

allow the respondents’ motion to dismiss her proceedings on the grounds that the proceedings were frivolous, and/or vexatious,

and/or doomed to fail, and/or an abuse of the process.

30. For the reasons given, I would dismiss the respondents’ motion brought in this appeal seeking to dismiss the appellant’s appeal for

failure to comply with s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000.

31. Thus the substantive appeal, which was adjourned pending the determination of this motion, may proceed. I would hear counsel

on how this matter should proceed in view of the changed circumstances.