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Cite as: [2002] IEHC 155

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THE HIGH COURT

JUDICIAL REVIEW

Rec. No. 283/2002/JR

BETWEEN

Y. V.

APPLICANT

AND

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM

RESPONDENT

JUDGMENT of Ms. Justice Finlay Geoghegan delivered the 17th day of October 2002.

By Notice of Motion dated the 16^th May, 2002 the applicant seeks leave to bring an application for Judicial Review seeking the following reliefs:

A. An Order of Certiorari quashing the conclusion and recommendation of the Refugee Applications Commissioner that the applicant's application for a Declaration of refugee status is manifestly unfounded;

B. An Order of Certiorari quashing the decision to expel or otherwise return the applicant to the frontiers of territories where his life, freedom or person would be threatened;

C. A Declaration that the applicant is entitled to legal assistance for

(i) his application of a declaration of his refugee status;

(ii) application to this court;

D. If necessary an Order referring to the Court of Justice of the European Communities any question arising out of these proceedings involving a point of European Union Law;

E. An Order as necessary extending the time for the making of this application;

F. An Order for Costs.

The application is grounded upon the proposed statement of grounds and the affidavit of Anthony Conleth Pendred solicitor for the applicant filed on the 16 May, 2002. The application is brought in accordance with the provisions of section (5)(2)(b) of the Illegal Immigrants (Trafficking) Act 2000 and was brought on notice to the Minister as required by that subsection. An affidavit of Mr. Joe Gleeson, an Executive Officer in the Department of Justice, Equality and Law Reform was filed on behalf of the Minister on the 22^nd August, 2002. No separate application was brought seeking an extension of time pursuant to section (5)(2)(a) of the 2000 Act and at the hearing before me Counsel for the applicant indicated that he was seeking an extension of time and seeking leave to bring the application for Judicial Review.

Having regard to the conclusion reached on the substantive application for leave it is unnecessary for me to reach a decision on the application to extend time.

The primary relief to be sought by the applicant in the intended proceedings is an Order of Certiorari quashing the conclusion and recommendation of the Refugee Applications Commissioner. This is a decision made on the 7^th November 2001 and appears to have been communicated to the applicant by a letter of that date. A letter dated 12^th December, 2001 from the Refugee Legal Service to the Refugee Applications Commissioner exhibited in the affidavit of Mr. Gleeson suggests that the applicant had received notice of the decision by that date.

In the proposed statement of grounds the applicant also seeks an Order of Certiorari of the Deportation Order made the 25^th April, 2002 and communicated to applicant and his solicitor by letters of 3^rd May, 2002. In the course of the hearing counsel for the applicant indicated that he was not relying on any specific grounds challenging the legality of the Deportation Order. The challenge to that order is consequential upon the challenge to the conclusion and recommendation of the Refugee Applications Commissioner.

Counsel for the applicant relies on three separate grounds in support of his application for leave.

1. In the absence of the delivery of a statement of opposition by the Minister, the Minister is not entitled to oppose leave or put in an affidavit and in the event that the Minister does not oppose leave that the applicant should be granted leave.

2. The conclusion and recommendation of the Refugee Applications Commissioner that the application for refugee status was "manifestly
unfounded" is ultra vires the Refugee Act 1996 (as amended).

3. The conclusion and recommendation of the Refugee Applications Commissioner was bad in law as the applicant did not have legal assistance at the time of his application for refugee status and for the purpose of his interview by an official of the Commissioner's office.

In support of his first proposition counsel for the applicant makes three separate arguments. He firstly contends that as section S(2)(b) requires the application for leave to be on notice to the Minister that the provisions of Order 84 Rule 22(4) of the Superior Court Rules applies. This provides:

"(4) Any respondent who intends to oppose the application for judicial review by -way of motion on notice shall file in the Central Office a statement setting out concisely the grounds for such opposition and, if any facts are relied on therein, an affidavit verifying such facts..."

Order 84 Rule 22 specifies the procedure to be followed once leave is granted to bring an application for Judicial Review. It does not in its express terms apply to an application for leave to apply for Judicial Review.

Counsel for the applicant secondly and separately contends that if the express terms of Order 84 Rule 22 (4) do not apply then a constitutional interpretation of section 5(2)(b) of the 2000 Act requires that fair procedures be followed and that such fair procedures require a notice of opposition to be served by the Minister where he proposes opposing the application for leave. Section 5(2)(b) does of course require that the court to which the application is made must apply fair procedures to the hearing. It does not appear however to me to follow that such fair procedures require the service of a statement of opposition as a precondition to the Minister being entitled to oppose the application for leave. Fair procedures clearly require that the applicant should not be taken by surprise by matters sought to be relied upon by the Minister in opposing the application for leave. It is appropriate to distinguish between facts to be relied upon by the proposed respondent and legal argument.

Fair procedures seems to require that if the Minister is going to rely upon any fact (other than an agreed fact) in opposing the application for leave that such fact should be deposed to on affidavit and that the affidavit be served on the applicant so that the applicant has an opportunity of considering the matter and deciding whether he or she requires to put in any further affidavit dealing with the relevant fact. Such procedure was followed in this case. In relation to any legal argument to be relied upon by the respondent the following appears to me to be the position in general. An applicant who seeks leave pursuant to section (5)(2)(b) of the 2000 Act is aware that he is obliged to satisfy the High Court that there are "substantial grounds" for contesting the validity of the matter in question. As the procedure is on notice to the Minister it must be considered as envisageable by applicants and their legal advisors that the Minister will oppose such an application upon the basis that the grounds set out in the proposed statement of grounds and the facts deposed to by affidavit on behalf of the applicant do not constitute substantial grounds for challenging the validity of the matters in question. Fair procedures do not in general appear to require any notice to be given to an applicant that the Minister will oppose the application for leave upon such a basis.

I do not exclude the possibility that fair procedures might require in certain exceptional circumstances that an applicant be put on notice by the Minister of an intention to rely upon a particular legal ground in opposing the application for leave. It could for example arise where it was apparent to the respondent from the statement of grounds and affidavit of the applicant that a particular statutory provision had been totally overlooked by the legal advisors to the applicant. In such circumstances a judge hearing an application, if the point were taken by counsel for the applicant that he W8S surprised by an argument sought to be made might well grant an adjournment and allow the point to be considered and dealt with by counsel for the applicant.

No such circumstances arises in relation to this application. The argument made by counsel on behalf of the applicant was made on a matter of principle. No argument was made that he was in any way taken by surprise or prejudiced in any way by a lack of a statement of opposition from the Minister having regard to the arguments made in opposing the application for leave. Accordingly on the facts of this application there does not appear to me to have been any breach of the constitutional obligation placed on me of applying fair procedures in the application for leave before me by reason of the simple fact that no notice of opposition had been served by the Minister.

The third and again distinct argument made by counsel on behalf of the applicant was that in the absence of the service of a notice of opposition, the Minister was not entitled to file a replying affidavit. The submission was that the only entitlement to file an affidavit in Judicial Review proceedings arose under Order 84 rule 22(4) and that such affidavit must be in support of a notice of opposition. I have already decided that Order 84 rule 22 does not apply to the application for leave. I can see no basis upon which it can be considered in the procedure envisaged by section (5)(2)(b) of the 2000 Act on the application for leave that the Minister is not entitled to put in an affidavit setting out facts which it considers should be before the court on the application for leave and upon which it will seek to rely in opposing leave. On the contrary as already indicated it appears to me as a matter-of fair procedures any facts to be relied upon must be put on affidavit and the applicant must have an opportunity of considering same.

I am supported in the conclusions reached by that fact that there has been in existence for some time, analogous statutory schemes requiring applications for leave for judicial review to be on notice to a proposed respondent. The Planning Acts are one such example. The practice has been for proposed respondents to put in affidavits and to be heard in opposition to an application for leave without filing a statement of opposition. I am not aware of any complaint of an absence of fair procedures from applicants in that scheme.

For each of the above reasons therefore I conclude that the arguments sought to be made that in the absence of the filing of a notice of opposition that I should not hear the Minister in opposition to the application for leave and should simply by reason of the lack of the notice of opposition grant leave to the applicant are not sustainable.

If the applicant is to be granted leave to apply for Judicial Review to challenge the validity of the conclusion and recommendation of the Refugee Applications Commissioner then in accordance with section 5(2)(b) of the 2000 Act he must satisfy the court that there are substantial grounds for contending that such conclusion and recommendation is invalid or ought to be quashed. The meaning of substantial grounds in section 5(2)(b) was considered by the Supreme Court in re: The Illegal Immigrants (Trafficking) Bill 1999 21.R. 360 where it approved the interpretation of that phrase by Carroll J. in McNamara -v-An BordPleanala (1) 1995 21.L.R.M. 125 as being equivalent to "reasonable ", "arguable " and "weighty⁹ and further that such grounds must not be "trivial or tenuous." Counsel for the applicant seeks to rely upon the explanation of the conclusion and recommendation given to the applicant in a letter dated 7^th September 2001 from Mr. Butler of the office of the Refugee Applications Commissioner where he stated in sub paragraph:

"It has been concluded by the Refugee Applications Commissioner that your application is manifestly unfounded in accordance with Section 12 (4) of the Act for the following reason:

The grounds for this decision are that you have not demonstrated a well founded fear of persecution for a Convention reason.

I enclose a copy of the reports in relation to your application, together with the recommendation made under Section 12. Copies of the information used in regard to your application are also enclosed "

That letter is exhibited by Mr. Pendred in his affidavit at paragraph 4 without the enclosures referred to in the above cited paragraph. Mr. Gleeson in his replying affidavit exhibits the report and recommendation of the Refugee Applications Commissioner referred to as an enclosure in the letter of the 7^th November 2001. Counsel for the applicant accepts that on any consideration by the court of the vires of the conclusion and recommendation of the Commissioner it would consider the full report and recommendation. In that report under a heading of findings it is stated:

"2.11 find that the provisions of paragraph 12(4) (a) apply: the application does not show on its face any grounds for the contention that the applicant is a refugee because his stated grounds for being discriminated against are not related to a Convention reason and because of this cannot relate to persecution as defined in the Refugee Act 1996 (as amended). It seems apparent that his difficulties relate to personal conflict within his own extended family and his own inability or reluctance to resolve these family related problems.

I find that the provisions of paragraph 12(4)(c) apply: lam satisfied that the applicants reason for leaving or not returning to his country of nationality does not relate to a fear of persecution because the evidence as presented by Mr. V. suggests that he was fleeing personal difficulties in Moldova and not persecution as defined in the Act. His fear of returning could not reasonably be related to persecution as his wife is no longer seeing him and this was one of the main reasons for his claim that his ex- in- laws were persecuting him. That issue would appear now to be an irrelevant one in this case.

2.2 Accordingly I am satisfied that the applicant has not established a case such as to qualify him/her for refugee status as defined in section 2 of the Refugee Act 1996 as amended."

Counsel for the Minister submits that the above findings demonstrate that the Commissioner considered the definition of refugee in section 2 of the Refugee Act 1996 and having done so came to the conclusion as he was entitled to do on the evidence before him that the application on its face did not show any grounds for the contention that the applicant is a refugee as defined. The stated reason for the conclusion being that the applicant had not demonstrated a well founded fear of persecution for a convention reason i.e. the reasons of race, religion, nationality, membership of a particular social group or political opinion. These are the reasons specified in section 2 of the Refugee Act 1996 and are commonly referred to as convention reasons.

It is further submitted that it was open to the official to conclude that he was satisfied that the applicants reason for leaving or not returning to his country does not relate to a fear of prosecution.

Counsel for the applicant did not refer to any specific evidence which was before the Commissioner which precluded the making of the above findings as a matter of law.

Accordingly I am not satisfied that there are substantial grounds for contending that the conclusion or recommendation of the Commissioner is ultra vires and invalid.

The second ground relied upon in support of the application for certiorari of the Commissioner's conclusion and recommendation is an asserted right to legal representation of the applicant's choice in connection with his application and in particular the interview conducted on behalf of the Commissioner. The applicant has sworn no affidavit in these proceedings. Mr. Pendred in bis affidavit does not make any complaint in relation to the alleged lack of legal representation or refer to any prejudice alleged to have been suffered by the applicant in connection therewith. Mr. Gleeson in his replying affidavit at paragraph 5 stated that he believes "that the documentation exhibited at paragraph 3 hereof discloses that the applicant was advised from the time of his initial application for refugee status that he was entitled to legal representation." He further states that "the applicant was legally advised and represented from sometime shortly after the conduct of his interview under section 11 of the Refugee Act 1996 as amended". No affidavit has been sworn disputing this averment. The documents exhibited by Mr. Gleeson include the initial application dated the 2^nd May 2001 which appears to have been completed on arrival at Shannon Airport and which includes an acknowledgement signed by the applicant that verbal advice was given of his right to consult a solicitor.

The documents exhibited also include a letter dated 18* September 2001 from the office of the Commissioner to the applicant informing him of the date for interview Of the 18 October, 2001. That letter contained a paragraph to the following effect:

"If you wish to obtain legal advice or assistance in relation to your application, you may contact the Refugee Legal Service (RLS), Timberlay House, 79-83 Lower Mount Street, Dublin 2, telephone 6310800. The RLS information leaflet which outlines the services provided and thefee(s) charged for its services is enclosed for your information. You also have the option to engage, at your own expense, private legal representation to advise you in relation to your application. "

The first letter written by the Refugee Legal Service on behalf of the applicant amongst the papers exhibited is a letter dated the 12^th December 2001. This post dates the decision of the Refugee Applications Commissioner. Notwithstanding, having regard to the evidence adduced by the Minister of the fact that the applicant was notified of his entitlement to consult a solicitor and seek advise from the Refugee Legal Service and the fact that that evidence is not sought to be contradicted by or on behalf of the applicant it does not appear to me that the applicant has substantial grounds for contending that the conclusion and recommendation of the Commissioner is invalid by reason of any lack of legal advice or representation at the time of his application to the Commissioner or his subsequent interview.

Counsel for the applicant sought to rely upon the decision of the European -Court of Human Rights in the case of Ezeh and Connors -v- the United Kingdom (Judgment of 15^th July 2002). Having regard to the view which I have formed on the facts of the application it is not necessary for me to consider whether the principles stated in that judgment apply to an application for refugee status before the Commissioner.

It is also important to note in connection with this issue that the applicant did have legal advice and assistance from shortly after the decision of the Commissioner; he was legally represented in his appeal to the Refugee Appeals Tribunal and at the oral hearing held by it The Tribunal affirmed the recommendation of the Commission. The decision of the Tribunal is not sought to be challenged in the intended proceedings.

Accordingly I refuse the application for leave herein.