Judgment Title: A. [a minor] -v- MJE & Ors
Neutral Citation:  IESC 18
Supreme Court Record Number: 09/2012
High Court Record Number:
Date of Delivery: 14/03/2013
Court: Supreme Court
Composition of Court: Denham C.J., Murray J., Clarke J.
Judgment by: Denham C.J.
Status of Judgment: Approved
Notes on Memo: Motion Dismissed
THE SUPREME COURT
Appeal No: 9/2012
(an infant suing by her mother and next friend)
Minister for Justice and Equality, Refugee Applications
Commissioner, Ireland and the Attorney General
Judgment delivered on the 14th day of March, 2013 by Denham C.J.
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
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:-
(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.
Respondents’ Notice of Motion
13. She deposed:-
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.”
ASY 1 Form
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. (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:-
(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:-
“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:-
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
Decision - Is a Certificate Required?
20. Thus, the issue is whether s. 5(3)(a) applies to these proceedings. Section 5(3)(a) provides:-
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:-
(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.”
25. An analysis of s. 5(3)(a) was made in A.B. v. Minister for Justice  1 IR 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:-
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.
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.