High Court of Ireland Decisions

R. (L.) v. Minister for Justice, Equality and Law Reform [2001] IEHC 208 (20 December 2001)

THE HIGH COURT

JUDICIAL REVIEW

2000 123JR

BETWEEN

L R AND L T

AND L T AND L T

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND EAMON CAHILL SC APPEALS AUTHORITY

RESPONDENTS

JUDGEMENT of Mr. Justice William M. McKechnie delivered on the 20th day of December, 2001.

1. On the 13th March, 2000 this Court (Mr. Justice O'Higgins) granted leave to the Applicants to seek by way of an application for Judicial Review the reliefs specified at paragraph D, 1 to 4 inclusive, of the Statement grounding the application and did so on the grounds mentioned at paragraph E(vii)(a) and (vii)(b) of the said Statement. The said reliefs as sought, included, as against the Respondent Minister, an Order of Certiorari quashing his decision of the 11th January, 2000 wherein he refused the appeal of each of the Applicants for refugee status within this State, and as against the second named Respondent, a Declaration that he entertained irrelevant considerations when dealing with the aforesaid appeals. The grounds upon which permission was given, to pursue these reliefs, were as follows:-

"(vii) In that recommendation which is exhibited in the grounding Affidavit to these proceedings the Appeals Authority states at paragraph 1, p. 3 of his recommendation as follows:-

"The objective information on Romania is that Roma are constantly harassed to the point of persecution. Additionally the Appellants were pentecostalists and they were persecuted for their religious beliefs:-

(a) The Appeals Authority having accepted that evidence on behalf of the Applicants was obliged to recommend the Applicants herein for refugee status.

(b) The Appeals Authority failed to do so and thereby allowed irrelevant considerations to influence him, the recommendation he ultimate made is not consistent with the findings accepted on the evidence."

The recommendation referred to was one of two made by the Appeals Authority in this case dealing with the Applicants who are all members of the same family and whilst the extract as quoted, appeared in one only, nevertheless the hearing of this application proceeded as if it was contained in both and accordingly this judgment likewise proceeds on that basis.

2. The following is a brief summary of the more relevant facts, matters and circumstances giving rise to this application. Having arrived in Ireland some days earlier, the Applicants, who are respectively husband and wife and daughter and son, applied on the 21st February, 1997 for refugee status. On the 6th May, 1999 their applications were refused on the basis that they had failed to demonstrate a well founded fear of persecution for a Convention reason. As was their right, Messrs Terence Lyons and Company Solicitors, on the 11th June, 1999 appealed on their behalf against that refusal. On the 19th October, an oral hearing took place before the duly appointed Appeals Authority, namely Mr. Eamon Cahill SC. On that occasion the first three named Applicants attended and their appeal was heard. On the 9th November, Mr. Cahill SC issued his report which had as its conclusion, a recommendation that the appeals should not be allowed. On the 30th November, an oral hearing into the appeal of the fourth named Applicant was held. The recommendation in that case issued on the 13th December with a similar conclusion. On the 11th January, 2000 Ms. Linda Greeley, from the Asylum division of the Respondent Ministry, informed each Applicant that, "as the officer authorised by the Minister I have considered the recommendation of the Appeals Authority and have decided to uphold the original decision and refuse your appeal." She went on to point out that the Minister proposed to make a deportation order under Section 3 of the Immigration Act, 1999 and that in accordance with subsection (3) (b) of that section, any written representations made within 15 working days by the Applicants to the Minister seeking his leave to remain within the State on humanitarian grounds, would be considered by him. Such representations were not to my knowledge made but instead these Judicial Review proceedings were instituted and leave given on the date above specified.

3. In the Statement grounding the application for Judicial Review, there were, in addition to the reliefs specified at paragraph D 1 to 4 inclusive, further reliefs specified at paragraphs 5 to 10 thereof, some of a substantive nature. At paragraph 5 a Declaration was sought, that the requirements of the UN Convention relating to the Status of Refugees, 1951 and a protocol thereto of 1976 and the criteria for determination of refugee status as stated in UNHCR Executive Committee Resolutions and the UNHCR Handbook relating to the Criteria for determining Refugee Status, had not been complied with. At paragraph 6, it was claimed, by way of Declaration that the Appeals Authority misdirected himself in law as regards the issues relating to creditability on the asylum applications and at paragraph 7, a Declaration was prayed for that the recommendation lacked proportionality. Moreover, an Order was also sought that the Applicants were entitled to be granted Refugee Status within the meaning of the relevant Section of the 1996 Act and the relevant articles of the Geneva Convention and the protocol done at New York on the 31st January, 1967. As with the reliefs claimed the grounds relied upon, in this Statement, were much more expansive then those referred to at paragraph 1 above. Such grounds alleged inter alia that the Appeals Authority had misdirected himself in law in applying the burden and standard of proof which he had adopted, that he had failed to adhere, in his recommendation to the findings made by him on the evidence, that he had arrived at a decision which was irrational in all of the circumstances and at grounds (viii) and (ix) respectively it was asserted, that:-

"(viii) The Recommendation of the Appeals Authority upon which the First Named Respondent relies was taken in an unfair and unreasonable manner. The Appeals Authority at the hearing of the Applicants appeal appeared to reject evidence tendered by the Applicants without any lawful basis for doing so. The subsequent conclusions arrived at by the Appeals Authority were unreasonable and unfair.

(ix) The duly authorised officer of the Minister in turn allowed irrelevant considerations to influence her decision refusing refugee status and as a consequence her decision is wrong in law owing to its reliance on the flawed recommendation of the Appeals Authority."

As can therefore be seen, a substantial number of reliefs and a substantial number of grounds included in the Statement, were not captured by the Order of the 13th March, 2000 granting leave to apply in these judicial proceedings. As a result and as a direct consequence of this, Mr. Peter Finlay SC, on behalf of the Applicants, at an early part of this hearing, sought to advance a case and make submissions on matters which on any interpretation of the Leave Order were not covered by it. Objection resulted. Hence, the first issue for my consideration is whether or not, on the subsequent application to amend the grounds by the reinstatement of those not covered by the Order of the 13th March, this Court, if otherwise so minded, would have power to so do.

4. In DPP -v- Corbett (1992) ILRM p. 674, Mr. Justice Lynch, in commenting upon an application made to the District Court to amend offences in the manner therein specified had, by way of general observation, this to say on the question of amendments. At p. 678 of the Report it is stated:-

"As regards the second amendment changing the date of the alleged offences from 19th September, 1989 to the 18th September, 1989 I start by setting out the general principles of law relating to amendment whether in criminal or civil proceedings.

The day is long passed when justice could be defeated by mere technicalities which did not materially prejudice the other party. While Courts have a discretion as to amendment, that discretion must be exercised judicially and where an amendment can be made without prejudice to the other party and thus enable the real issues to be tried the amendment should be made. If there might be a prejudice which could be overcome by an adjournment then the amendment should be made and an adjournment also granted to overcome the possible prejudice and if the amendment might put the other party to extra expense that can be regulated by a suitable order as to costs or by the imposition of a condition that the amending party shall indemnify the other party against such expenses. The foregoing principles apply in the application of Rules 21 and 88 of the District Court Rules, 1948 and corresponding provisions as to amendments are to be found in Order 57 of the Rules of the Circuit Court, 1950, in Order 28 and Order 58 Rule 6 and 8 of the Rules of the Superior Courts and in relation to indictments in Section 6(1) of the Criminal Justice (Administration) Act, 1924. It seems to me that Section 6(1) of the 1924 Act neatly encapsulates the law as to amendment in relation to any form of proceedings civil or criminal and is therefore worth quoting:

"Where, before trial, or at any stage of a trial, it appears to the Court that the indictment is defective, the Court shall make such Order for the amendment of the indictment as the Court thinks necessary to meet the circumstances of the case, unless the required amendments cannot in the opinion of the Court be made without injustice, and may make such order as to payment of any costs incurred owing to the necessity for amendment as the Court thinks fit."

See also State (Duggan) -v- Evans (1978) 112 ILTR 61."

5. These principles, in the context of High Court proceedings and in particular Order 28 Rule 1 of the High Court Rules have been considered by the Courts in several decisions. Mr. Justice Kinlen in Bell -v- Pederson (1995) 3 IR 511 agreed expressly with the extract as quoted from the judgment of Mr. Justice Lynch. As did the Supreme Court through the judgment of Mrs. Justice McGuinness in O'Leary -v- Minister for Transport (2001) 1 ILRM 132. In addition see the judgment of Keane J., as he then was, in Krops -v- The Irish Forestry Board Ltd and Anor, (1995) 2 ILRM 290 where in a negligence action, the representative Plaintiff was permitted to amend his pleadings by inserting a claim in nuisance, notwithstanding an objection by the first named Defendants that such an amendment would deprive them of a defence that could otherwise be open to them under the relevant limitation enactment, which in that case, was Section 48(6) of the Civil Liability Act, 1961. In Rubotham (Infant) -v- M & B Bakeries Ltd 1993 ILRM 219, where the infancy of the Plaintiff was a factor which Mr Justice Morris, as he then was, took into account in permitting, what he described as a fundamental amendment to the Statement of Claim. These and other such similar cases are not, however, directly in point in this case as the nature of the within proceedings are in principle quite different to the nature of the proceedings in the cases above mentioned, whether such cases be on the civil or criminal side.

6. The instant application is and remains one seeking Judicial Review, and has been moved procedurally under the Order next mentioned. Any amendment to the grounds thereof must therefore fall to be determined in accordance with Order 84 of the Rules of the Superior Courts. Mr. Justice Blayney in Ahern v Minister for Industry and Commerce (1990) 1 IR 55 held that the definition of "Pleading" in Order 125 of the Rules, did not include a Statement grounding an application for Judicial Review and accordingly, Order 28 is not available as a mechanism in seeking an amendment to such a Statement. Though the decision of the Supreme Court in Molloy -v- The Governor of Limerick Prison, (UR 12/7/91) clarified that part of this judgment which related to the time at which an application to amend can be made under Order 84 Rule 23, I cannot find anything in the judgment of the Chief Justice which casts any doubt on the correctness of Ahern when dealing with Order 28. Accordingly, whilst the position would be different if the matter had been remitted for Plenary Hearing, see O'Leary, supra, it seems to me, as I have previously said, that the application as constituted must be considered solely under and in accordance with Order 84 of the Rules.

7. Order 84 Rule 20(3) reads:-

"The Court hearing an application for leave may allow the Applicants' statement to be amended whether by specifying different or additional grounds of relief or otherwise, on such terms, if any, as he thinks fit."

Rule 23 of the same Order reads:-

"23(1) A copy of the statement in support of an application for leave under Rule 20, together with a copy of the verifying Affidavit must be served with the notice of motion or summons and, subject to paragraph (2), no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement.

(2) The Court may, on the hearing of the motion or summons, allow the applicant or the respondent to amend his statement, whether by specifying different or additional grounds of relief or apposition or otherwise, on such terms, if any, as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

(3) ......................"

It is clear that paragraph 3 of Rule 20 is dealing with a situation where an amendment is sought during the making of an application for leave, whereas, following the decision in Molloy's case, Rule 23 is dealing with any and all other applications to amend, provided that where the originating document is a Motion Paper the application is made after the return date has passed and that where the originating document is a Summons, the application is made after the Summons has issued.

8. There is no doubt but that the Court has jurisdiction to amend a Statement in Judicial Review proceedings and can do so either "by specifying different or additional grounds of relief or opposition or otherwise......". The question as to when and in what circumstances it would be appropriate to exercise this jurisdiction has been considered by the High Court with the following extract from McCormack -v- Garda Siochána Complaints Board (1997) 2 IR 489, suggesting, that the standard is higher and the requirement greater in seeking an amendment in Judicial Review proceedings, then in Plenary Proceedings. Mr. Justice Costello, as President, at p. 503 of the Irish Reports said:-

"Only in exceptional circumstances would liberty to amend a grounding statement be made because the Courts jurisdiction to entertain the application is based on or limited by the Order granting leave. But when facts come to light which could not be known at the time leave was obtained and when the amendment will not prejudice the Respondents, then it seems a proper exercise of the Courts power of amendment to permit the amendment rather than require the new "grounds" be litigated in fresh proceedings."

9. It seems to me that the point truly in issue in the present application is not as such covered in or by any of the decisions above mentioned. Undoubtedly it is the case that there stands before me an application to amend the Statement of Grounds. Undoubtedly it is sought to specify either different or additional grounds and thus at first sight might be thought to come within Order 84 Rule 23(2). However, a crucial difference is, in the nature of the grounds sought to be included. No question arises as to whether those grounds are "new grounds", as mentioned by Costello P in McCormack's case. In fact these are very much original grounds because they were expressly included in the original Statement grounding the application. It is not, as it were, if what is sought to be included was not covered by and therefore not within the statement of March 2000. In this case the very opposite is the position. All of the grounds sought to be reintroduced were in the documentation when the leave application was moved. Therefore, these grounds were, I must assume urged upon the Court as being appropriate grounds upon which permission should issue to proceed with this action. However, having heard the application and based on the resulting Order it is clear, in an affirmative sense that leave was granted only to seek the orders sought at paragraph D 1 to 4 and then only on the grounds contained in paragraph E(vii)(a) and (b), and none other. By not granting leave on these other grounds one must conclude that the application, made on behalf of the Applicants was therefore refused by the learned Judge who granted the leave Order. This being the situation it seems to me that in the same proceedings and on identical grounds, another Judge of the High Court does not have jurisdiction to effectively overrule an earlier Order of the same Court. Such authority or power does not in my view exist. The only Court which could but was not invited to do so would be the Supreme Court. It is not now I feel possible for this Court to reinsert or reinstate grounds which previously a Judge of this Court refused to grant leave on.

10. It was suggested in argument that the following passage from the Judgment of the Chief Justice in Molloy's case was authority for this Court being vested with the jurisdiction in question. This extract reads as follows:-

"Counsel for the Respondent had argued that it was undesirable that Applicants, who had been granted leave to apply for Judicial Review on a limited number of grounds, could, by a casual application to amend the pleadings extend greatly the nature and character of the application. The Chief Justice said that this objection was met by a proper understanding of the rule. An Applicant who sought to amend the pleadings must discharge the same onus as an Applicant seeking liberty to apply for Judicial Review on an originating application under Order 84 would have to do."

This part of the judgment, I believe was dealing with a situation where the grounds sought to be added had not previously been advanced, and had not been the subject matter of any application to this Court and thus had not met with any judicial scrutiny. Such a situation is quite unlike the present application. Accordingly, in my view this passage does not lend support to the proposition as urged and as a result I will have to refuse the application to amend and in consequence confine the Applicants to the grounds upon which leave was originally obtained.

11. The Applicants claim for refugee status was considered in accordance with the procedures for processing asylum claims in Ireland, such procedures being those as notified to the UNHCR on the 10th December, 1997 as amended on the 13th March, 1998 and on the 27th January, 2000 and which are known as the "Hope Hanlon" procedures. These rules and their predecessor, which were contained in what is known as the "Von Arnim letter" have been the subject matter of several judgments in both this Court and the Supreme Court in the past decade. See Fakih -v- Minister for Justice (1993) 2 IR 406 and Gutrani -v- Minister for Justice (1993) 2 IR 427, P.L.B. -v- Minister for Justice HC UR 2/1/01 and SC UR 31/7/01, and Laurentiu -v- The Minister for Justice, Equality and Law Reform, (2000) 1 ILRM p. 1. Therefrom, in the context of the only live issue remaining in this case, it seems to me that in proceedings of this nature:-

(a) This Court is a Court of review, with a supervisory jurisdiction, of the decision making process and not of the decision itself, and

(b) This Court is not an appellate body to review or reconsider the merits of the decision reached or to substitute it's own views or conclusions for those of the decision maker, or to assess and evaluate the evidence whether of fact or inference, (that is save perhaps for the claim based on irrrationality) - all of these are matters for the person who is nominated to hear the application, who is appointed to reach a conclusion and who is designated to make a recommendation.

See Tang -v- The Minster for Justice, (1996) 2 ILRM 46 and in addition and in particular the Judgement of Mr. Justice Geoghegan in the Laurentiu case, supra.

12. The dominant point on this appeal, as appears from paragraph 1 above, arises from what is contained in the recommendation of the Appeals Authority dated the 9th November, 1999 when dealing with the applications of the first three named Applicants. On page 3 of the recommendation it is recorded "the objective information on Romania is that Roma are constantly harassed to the point of persecution. Additionally the Appellants were pentecostalists and they were persecuted for their religious beliefs". Alleging that this constitutes a finding of fact by the Appeals Authority, it is therefore claimed that as the only logical and indeed necessary consequence thereof, Mr. Cahill SC was obliged to recommend the Applicants for refugee status. By refusing to so do it follows, it is urged that his ultimate conclusion to the contrary can only be interpreted as having been arrived at by a consideration of irrelevant matters which by law he is not entitled to so do. It is said that his recommendation cannot stand side by side with this alleged finding as it is evidently inconsistent with it.

13. In opposing the application two Affidavits have been filed on behalf of the Respondents. One by the Appeals Authority himself and the second, on behalf of the Minister by Mr. Michael Quinn, an Assistant Principal Officer in the Asylum division. Having referred to the aforesaid extract from his recommendation, Mr. Cahill at paragraphs 7 and 8 of his Affidavit avers as follows:-

"7 I have read the documented reports of Roma people in Romania. These established that there has been a long standing hostility to the Roma in that country. These are documented reports of harassment of Roma and in some cases of persecution of Roma. It was submitted on behalf of the Applicants that they had been persecuted for ethnic and religious reasons.

8 In arriving at a decision, I had considered the evidence heard at the appeal, the submissions made on behalf of the Applicants and the relevant and independent documented investigations of the plight of Roma people in Romania. My recommendation was that I was unable to accept that the Applicants had established a well founded fear of persecution."

Whilst this Court is grateful for the receipt of such Affidavit and whilst, in the absence of debate I would express no concluded view on the appropriateness or otherwise of a named Appeals Authority in swearing such an Affidavit, nevertheless, because the recommendation in my view speaks for itself and because the evidence tendered and procedures adopted at the oral hearing, can all be placed before this Court through the Affidavit of Mr. Quinn, I do not propose to rely on the Affidavit of the said Appeals Authority.

14. The recommendation in question runs to 5 pages. Its format is to commence with some "Background Information" and then has a heading "evidence of ...", with each Appellant then being named. There follows in narrative form, what appears to be a recording or recital of the evidence so given by that identified individual. The evidence of L R Husband of the second named Applicant and the father of the other two, is recited first. Many of the sentences commence with "he was ..., he intervened ..., he said ...", and so forth. In between however, there are bold statements, an example of which occurs on page 2. It reads "They started beating the congregation with their bantons ... the police harassed the family continuously because they were envious of his wealth ... it was necessary to bribe them from time to time". This type and style of recording continues under the heading of "Evidence of L T" and her daughter L. It is in the section dealing with the evidence of the latter that the words above relied upon appear. The sentence immediately preceding the alleged finding reads, "On behalf of the Appellants it was claimed that they had suffered ill treatment and the medical report of Dr. O'Carroll was an objective support for physical brutality." There then immediately follows "The objective information on Romania is that ...Roma are constantly harassed to the point of persecution. Additionally the Appellants were Pentecostalists and they were persecuted for their religious beliefs". Some two lines later the next sentence commences with the words "On behalf of the Department it was claimed that relocation was a feasible option". The recommendation then continues, with the heading "The Law", whereunder the Appeals Authority sets out what in his view are the relevant principles. And then, there follows "The Decision". This covers about 2 pages in total. It is in part discursive, is in part making findings, is in part making observations, is in part drawing inferences and in part refusing to make findings or draw inferences. The learned Appeals Authority deals with the issue of creditability as it appears to him. He then ultimately concludes in the manner set forth above.

15. The second report dealing solely with L T, the son of the first and second Applicants, follows precisely the same format as the first Recommendation. It commences with "Background Information", then has the heading "Evidence", where it sets out what that particular Applicant was alleging. The precise method of recording differs and varies from place to place and is a direct replica of the type and style of recording which appears in the first Recommendation. The Law is then dealt with and ultimately the Decision which is about a page and a half.

16. Having viewed and considered the 1st and 2nd Recommendations both in their individual parts and in their totality, I am absolutely satisfied, beyond question that the Applicants are incorrect in their suggestion that the extract above quoted constitutes a finding of fact by Mr. Cahill SC. It is utterly clear in my opinion, from reading that section of the recommendation itself and certainly from the totality of the document, with its format, style and sequence, that the section under review is simply a recording of the information or evidence as given by L. A comparison between that recording and the other evidence given, comprehensively supports this view. In addition, it is clear when one contrasts where and how that is noted with where the decision is and its wording, that on no reasonable interpretation of this recommendation could the suggested construction be placed on this, the disputed section. Accordingly, in my opinion, there is no basis in fact for the belief and thus the allegation made by the Applicants. In consequence, since there is no factual basis upon which this case can be made, the relief sought will have to be refused. To do otherwise would be to allow this Court to be used as a vehicle for a further appeal on the merits of this application, a facility which in a very definite way I am prohibited from so offering. The application is therefore refused.

cflire(jmk)