Judgment Title: Lofinmakin (a minor) & ors v Minister for Justice Equality & Law Reform
Neutral Citation:  IESC 49
Supreme Court Record Number: 138/11
High Court Record Number: 2009 946 JR
Date of Delivery: 20/11/2013
Court: Supreme Court
Composition of Court: Denham C.J., Murray J., Fennelly J., McKechnie J., MacMenamin J.
Judgment by: Denham C.J.
Status of Judgment: Approved
THE SUPREME COURT
Appeal No. 138/2011
Orelu Oluwabunmi Semilore Jedidiah Lofinmakin (an infant acting by her father and next friend Akintola Lofinmakin)
Ebun-Oluwa Motunola Peace Ore-Oluwa Lofinmakin (an infant acting by her father and next friend Akintola Lofinmakin)
Rachel Yinka Amonusi
The Minister Justice, Equality and Law Reform, Ireland and the Attorney General
The Human Rights Commission
Judgment delivered on the 20th day of November, 2013, by Denham C.J.
1. There are two issues before the Court in this matter. The first issue is whether the appeal is moot. Secondly, if it is held that the appeal is moot, the question arises as to whether this is one of the exceptional cases where a court will hear an appeal even though the matter is moot.
2. The original proceedings in this appeal arose out of a deportation order, but there no longer exists a deportation order in respect of any of the appellants.
4. Originally, there were issues as to whether the third named appellant was entitled to reside in Germany. The Minister made a deportation order on the 20th August, 2009, which was affirmed on the 3rd November, 2009, to deport the third named appellant.
5. The appellants applied to the High Court for reliefs, including leave to seek an order of certiorari of the deportation order. The appellants raised issues as to family rights and the test set out in O’Keeffe v. An Bord Pleanála 1 I.R. 39.
6. On the 1st February, 2011, in a reserved judgment the High Court (Cooke J.) refused leave to seek any relief. He adjourned the application for a certificate for leave to appeal.
7. On the 7th March, 2011, the European Court of Justice delivered judgment in Zambrano v. Belgium (Case C-34/09)  All ER (EC) 491. The rights of citizen children of the European Union were held to derive from Article 20 of the Treaty on the European Union.
8. The High Court granted a certificate for leave to appeal to the Supreme Court on the 25th March, 2011, noting that the appellants had not relied on Article 20 of the Treaty on the European Union, which was the basis for the Zambrano decision; and the High Court also granted a certificate relating to the O’Keeffe test, and the interpretation of the decision of this Court in Meadows v. Minister for Justice, Equality and Law Reform  2 IR 701.
9. The appellants appealed against the refusal of leave to apply for judicial review on the points certified by the High Court.
10. Thereafter, the Minister decided to revoke the deportation order made in respect of the third named appellant, and so informed him by letter of the 21st February, 2012. The third named appellant has been granted temporary residency until the 24th February, 2014.
11. Thus, there is no longer a deportation order in respect of any of the appellants. The first two appellants are Irish citizens and are entitled to reside in Ireland. The third and fourth named appellants have permission currently to reside in Ireland.
12. If the situation were to arise where either the third or fourth named appellant were in danger of deportation, the Minister would have to make a fresh deportation order. That could give rise to fresh proceedings with new issues arising which were not part of these proceedings.
14. As the deportation order has been revoked, there is no basis upon which to proceed. Furthermore, any decision by this Court would be based on a hypothesis, and would be an advisory opinion. It has long been the jurisprudence of this Court that it will not give advisory opinions, except in exceptional circumstances, such as under Article 26 of the Constitution, or as identified in the case law of the Court.
15. Thus, while the parties had a real dispute when the proceedings were commenced, this is no longer the case.
16. As has been cited by this Court previously, including by Hardiman J. in Goold v. Collins  IESC 38, the dictum of the Supreme Court in Borowski v. Canada  1 S.C.R. 342 reflects the law of this jurisdiction where it is stated:-
18. In Irwin v. Deasy, Murray C.J. said:-
21. The issue of mootness was analysed by Clarke J. in Okunade. In that case the issue was, as he stated, “strictly speaking moot”. However, it was a test case. Clarke J. stated:-
23. In making submissions to this Court, advocating that the Court should hear the appeal, counsel for the appellants relied on Caldwell v. Mahon Tribunal  IESC 21. .
24. Counsel submitted that there was an outstanding order for costs made in the High Court against the appellants and that that order was appealed against by the appellant in their notice of appeal. It was submitted that in order to determine whether that costs award against the appellants should stand, be reversed, or varied, the merits of this appeal must be decided by the Court.
25. It is not the jurisprudence of this Court that a moot appeal should be heard to determine an issue of costs. If such were the case, it would render at nought the discretion of the Court on a moot appeal. In moot cases on appeal there may be an issue of costs in both this Court and the High Court. However, that is not a factor in determining whether such exceptional circumstances exist, that a moot appeal should be heard by the Court.
26. I would distinguish Caldwell v. Mahon Tribunal  IESC 21. In general it is not necessary to hear an appeal simply to determine if the costs order was properly made or ought to be set aside. I consider Caldwell to have unique circumstances which do not apply in general and do not apply to this case. Consequently, I would not exercise discretion to hear the moot appeal simply because a costs order was in issue.
28. There is no matter left in issue between the parties. Thus, the appeal is moot and, accordingly, the general rule should apply and the appeal should not be heard. While the Court has a discretion to hear and determine a moot case in exceptional circumstances, no such exception arises in this case.