Judgment of Ms. Justice Dunne delivered the 16 day of May 2018
1. F.G. and X.G. are the daughters of I.G. They are nationals of Albania. Each applied to the Refugee Applications Commissioner for refugee status. They were refused. Following the refusal of their applications for asylum, the appellants were concerned as to the manner in which their applications for asylum were processed. As a result, an ex parte application for leave to apply for judicial review was made in separate proceedings by each of the appellants. Leave was refused in each case on foot of the judgment of the High Court (Humphreys J.) of the 14th November, 2016 and a certificate of leave to appeal that decision was refused by the order of the High Court of the 13th February, 2017.
2. Curiously, the respondent was put on notice of the application for a certificate of leave to appeal to the Court of Appeal and was heard on that application, despite not having been put on notice for the originating application for leave, made as one would expect, on an ex parte basis, and which was refused on the 14th November, 2016 as mentioned previously. Even more curiously, an order for costs of the proceedings was made in favour of the respondent even though its participation was confined to the hearing on the application for leave to appeal. No doubt, no costs would have been incurred by the respondent in respect of the ex parte application for leave to appeal, nonetheless it does seem odd that an order was made for costs of the proceedings as a whole rather than simply in relation to the hearing at which the Refugee Applications Commissioner was present.
3. All three appellants having been refused leave to apply for judicial review and thereafter having been refused a certificate of leave to appeal made a “leapfrog” application for leave to appeal to this Court. In determinations of the 23rd June, 2017, the three appellants were granted leave to appeal to this Court on the following grounds:
"(a) That the trial judge erred, in all the circumstances of the case, in determining that I.G., [F.G. and X.G.] had not established substantial grounds for the contention that, on the evidence before the High Court, it was sufficiently arguable that the RAC had not itself carried out the investigation required by s.11 of the Refugee Act, 1996 in the manner required by that statute; and
(b) that the trial judge did not properly apply the law concerning the obligation not to depart from a decision of a colleague judge of the same rank, without sufficient reason, as identified by this Court in Kadri."
The appeals in respect of each of the appellants came on for hearing together and for that reason it is appropriate to deliver a joint judgment in respect of the issues raised herein.
The issue that gave rise to the ex parte application for judicial review
4. The issue giving rise to the application for leave to apply for judicial review concerns the processing of applications for asylum. Section 11 of the Refugee Act 1996 provides for the Refugee Applications Commissioner ("the RAC") to investigate applications for asylum. Section 11(1) provides as follows:
"(1) Where an application is received by the Commissioner under section 8 and the application is not withdrawn or deemed to be withdrawn pursuant to this section or section 9 or 22, it shall be the function of the Commissioner to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given.
(2) In a case to which subsection(1) applies, the Commissioner shall, for the purposes of that provision, direct an authorised officer or officers to interview the applicant concerned and the officer or officers shall comply with any such direction and furnish a report in writing in relation to the interview concerned to the Commissioner."
It is provided in paragraph 9 of the First Schedule of the Act of 1996 as follows:
"The Commissioner may delegate to any members of the staff of the Commissioner any of his or her functions under this Act save those conferred by section 7."
Once an investigation is carried out by the RAC, he or she in accordance with the provisions of s. 13 of the Act of 1996, is obliged to
". . .prepare a report in writing of the results of the investigation . . . and shall set out the findings of the Commissioner together with his or her recommendation whether the applicant concerned should or, as the case may be, should not be declared to be a refugee."
5. It would appear that in or around 2013, the RAC established a "case processing panel of legal graduates" to perform the role of "case processing" initially in relation to subsidiary protection claims. In 2015, the remit of this panel was expanded so that panel members would "process applications for refugee status and carry out other support work". The "case processing panel members" were engaged as contractors under a contract for services and were made up of solicitors, barristers or other law graduates.
6. Complaint is made as to the way in which the investigation mandated by s. 11 of the Act of 1996 was being carried out by panel members on the basis that the RAC had no power to delegate the functions under the Act to panel members. It was also pointed out that each "recommendation" from the Commissioner to the Minister was accompanied not only by a s. 13 report (as was the norm prior to that) but also by a draft s. 13 report. It is contended that the two versions of the s. 13 report would invariably be identical to one another albeit that the "draft" report was signed by a panel member whereas the "final" report was signed by two civil servants. This is contrasted with the practice in relation to the Commissioner's responsibilities in relation to subsidiary protection or Dublin III transfer decisions. Accordingly, it is contended by the appellants that the only "investigation" of their asylum claims and the only analysis of their credibility was one carried out by an outside contractor retained by the RAC. All that was done by the staff of the RAC was to amend the heading of the s. 13 report so as to remove the word "draft" and to add to the body of the report the following statement:
"I agree with and adopt/approve the draft findings of the panel member."
7. The application for leave to apply for judicial review of the decision of the RAC in these cases is one to which the provisions of s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000, as amended, applies so that 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". Not surprisingly, the respondent takes issue with the contention of the appellants that they have established substantial grounds in relation to the use by the RAC of independent contractors to carry out the investigative function provided for in s. 11 of the Act of 1996.
The judgment of the High Court
8. In order to consider the issues, the subject of this appeal, it is necessary to look at the judgment of the learned High Court judge in relation to these appeals.
9. The learned High Court judge in the course of his judgment summarised the issue as follows that "while the commissioner can delegate an interview to an authorised person such as a panel member, he cannot lawfully delegate any element of the investigation or the preparation of a draft report". He referred to the relevant statutory provisions in relation to the duty to investigate an application. He referred to the fact that it had been submitted that "there is no express provision for delegation along the lines of reg. 30 of the European Union (Subsidiary Protection) Regulations 2013, which applies only to subsidiary protection and not to asylum". The learned trial judge concluded that the points raised were without substance.
10. It was also pointed out to the learned trial judge that leave had been granted previously on the same point in a case entitled M.U.R. v. Refugee Applications Commissioner [2016 No. 364 J.R.] on the 18th July, 2016 and in other cases. It was suggested that a test case should be selected in relation to the point. Nevertheless the learned trial judge concluded that the fact that one applicant had obtained leave on the particular point is not a guarantee that the next applicant must also do so if "upon examination, the point is found to be without merit". He concluded that the point before him was one without merit and accordingly refused the application for leave.
Discussion
Issue 1
11. An applicant for leave to apply for judicial review must establish substantial grounds in accordance with the provisions of s. 5(2) of the Act of 2000 as set out above. In considering whether or not the appellants herein have established grounds, it is useful to bear in mind the fact that an experienced colleague of the learned trial judge had granted leave on the same grounds. That fact, of itself, suggests that the grounds relied on by the appellants herein are not without substance. I will return to the question of the reliance to be placed on the fact that leave has been granted in other cases when I come to consider Issue 2 shortly. Leaving aside for a moment the fact that leave has been granted on the same grounds by another judge of the High Court, do the matters relied on by the appellants herein amount to substantial grounds?
12. Counsel for the appellants referred to the well known decision of the High Court in relation to the use of the phrase "substantial grounds" in the Planning Act 1992. In McNamara v. An Bord Pleanála (No. 1) [1995] 2 I.L.R.M. 125, Carroll J. at page 130 of her judgment stated as follows:
"What I have to consider is whether any of the grounds advanced by the appellant are substantial grounds for contending that the Board's decision was invalid. In order for a ground to be substantial it must be reasonable, it must be arguable, it must be weighty. It must not be trivial or tenuous. However, I am not concerned with trying to ascertain what the eventual result would be. I believe I should go no further than satisfy myself that the grounds are 'substantial'. A ground that does not stand any chance of being sustained (for example, where the point has already been decided in another case) could not be said to be substantial . . ." (emphasis added)
13. The analysis of Carroll J. as to the "substantial grounds" test was considered in the case of Meadows v. Minister for Justice [2010] 2 IR 701 and applied in the High Court in that case. Denham J. in the course of her judgment at paragraph 130 stated:
"The High Court in this case, having reviewed the law, held:-
'Accordingly, I take the view that as a matter of law, the applicant has to satisfy this court that the grounds as made out for seeking leave to apply for judicial review are reasonable, arguable and weighty, with the added proviso that they must not be trivial or tenuous.'
I would affirm this analysis taken by the High Court Judge as to the term 'substantial grounds'."
14. Accordingly there cannot be any doubt as to the requirements of an applicant for leave to apply for judicial review as to what must be established in order to obtain leave to apply for judicial review. Thus, it is clear that the grounds made out must be reasonable, arguable and weighty and must not be trivial or tenuous.
15. The learned High Court judge in this case specifically stated that he had regard to the relevant test set out in McNamara approved thereafter in a number of other cases.
16. I have referred above to the statutory provisions in relation to the rule of the RAC in conducting an investigation in accordance with the provisions of s. 13 of the Act of 1996 as to whether an individual applicant should or should not be declared a refugee. I have also referred to the express power conferred on the RAC to delegate to any members of the staff of the RAC any of the functions under the Act. It is interesting to note that when the functions of the RAC in relation to subsidiary protection determinations are being carried out, it is provided by Regulation 30 of the European Union (Subsidiary Protection Regulations 2013) S.I. No. 426 of 2013 as follows:
17. It will thus be seen that the express power of delegation in relation to the investigation carried out in accordance with the provisions of s. 13 of the Act of 1996 is confined to members of the staff of the RAC while the functions of the RAC carried out in respect of applications under the subsidiary protection regulations can be delegated to contractors. That distinction is at the heart of the application for leave to apply for judicial review coupled with the fact that it would appear that the recommendation from the RAC to the Minister was accompanied not only by a s. 13 report but also by a draft s. 13 report, in identical terms, albeit that the draft report would be signed by a panel member whereas the "final" report would be signed by two civil servants. It is the contention on behalf of the appellants that the RAC has unlawfully delegated the function under s. 13 to contractors, as opposed to members of the staff of the RAC. The point made on behalf of the respondent is that the process of gathering information pursuant to s. 13 can properly be carried out by assistants. It is further pointed out that the fact that the RAC approves the narrative provided by the contractor does not mean that the RAC did not investigate the application.
18. I am conscious of the fact, as indeed was pointed out on behalf of the respondent, that there was no evidence from the respondent before the High Court when the application for leave was made. The application for leave was made as one would anticipate on an ex parte basis. Therefore the only evidence before the Court was that provided by the appellants and, of course, the availability of evidence from the respondent could change the picture.
19. There is a clear distinction between the power of delegation by the RAC in respect of an investigation under s. 13 and the power of delegation under Regulation 19 referred to above. Whether the steps taken by the contractor in a s. 13 investigation is ultimately found to be an unlawful delegation or not can only be determined on an application for judicial review, having heard evidence and argument from both sides. Thus, it seems to me that the point raised on behalf of the appellants in this case is one which meets the test provided for in McNamara referred to above and I am satisfied that the grounds raised by the appellants are reasonable, arguable and weighty and are not trivial or tenuous.
Issue 2
20. If there was any question mark over whether or not the appellants had established substantial grounds, the fact that another judge of the High Court had granted leave on the same grounds in a number of other cases surely has some relevance? It is the case that the learned trial judge was told that leave had been granted on the same grounds in more than one other case and specific reference was made to the case of M.U.R. referred to above. The learned trial judge took the view that he was not bound to follow the approach of his colleague "if upon examination, the point is found to be without merit;".
21. A number of authorities were referred to by the parties in this context. Counsel on behalf of the appellants placed particular reliance on the decision of the High Court in In Re Worldport Ireland Limited [2005] IEHC 189 in which Clarke J. stated at page 7/8 as follows:
"I have come to the view that it would not be appropriate, in all the circumstances of this case, for me to revisit the issue so recently decided by Kearns J. in Industrial Services. It is well established that, as a matter of judicial comity, a judge of first instance ought usually follow the decision of another judge of the same court unless there are substantial reasons for believing that the initial judgment was wrong. Huddersfield Police Authority ûv- Watson [1947] K.B. 842 at 848, Re Howard's Will Trusts, Leven & Bradley [1961] Ch. 507 at 523. Amongst the circumstances where it may be appropriate for a court to come to a different view would be where it was clear that the initial decision was not based upon a review of significant relevant authority, where there is a clear error in the judgment, or where the judgment sought to be revisited was delivered a sufficiently lengthy period in the past so that the jurisprudence of the court in the relevant area might be said to have advanced in the intervening period. In the absence of such additional circumstances it seems to me that the virtue of consistency requires that a judge of this court should not seek to second guess a recent determination of the court which was clearly arrived at after a thorough review of all of the relevant authorities and which was, as was noted by Kearns J., based on forming a judgment between evenly balanced argument. If each time such a point were to arise again a judge were free to form his or her own view without proper regard to the fact that the point had already been determined, the level of uncertainty that would be introduced would be disproportionate to any perceived advantage in the matter being reconsidered. In the absence of a definitive ruling from the Supreme Court on this matter I do not, therefore, consider that it is appropriate for me to consider again the issue so recently decided by Kearns J. and I intend, therefore, that I should follow the ratio in Industrial Services and decline to take the view, as urged by counsel for the Bank, that that case was wrongly decided." (sic)
22. Reference was also made to the decision in Kadri v. Governor of Wheatfield Prison [2012] 2 ILRM 392.
23. In his judgment in that case with which MacMenamin J. concurred, Clarke J. stated at page 400 as follows:
"2.1 The jurisprudence of the High Court regarding the proper approach of a judge of that Court when faced with a previous decision of another judge of that Court is consistent. The authorities go back to the decision of Parke J. in Irish Trust Bank v. Central Bank of Ireland [1976-7] I.L.R.M. 50. Similar views have been expressed in my own judgment in In Re Worldport Ireland Limited (In Liquidation) [2005] IEHC 189, by Kearns P. in Brady v. D.P.P. [2010] IEHC 231, and most recently by Cross J. in B.N.J.L. v. Minister for Justice, Equality & Law Reform [2012] IEHC 74 where Worldport was expressly followed.
2.2 It seems to me that that jurisprudence correctly states the proper approach of a High Court judge in such circumstances. A court should not lightly depart from a previous decision of the same court unless there are strong reasons, in accordance with that jurisprudence , for so doing."
Reference was made in that passage to the earlier decision in the case of Irish Trust Bank Ltd. v. Central Bank of Ireland and to the judgment of Parke J. in that case. Reliance is placed on that judgment by the respondent and to a passage at page 53 when Parke J. stated:
"Mr. O'Neill S.C. on behalf of the defendants urged me that I should not follow or apply the principles quoted from the judgment of Cannon J. I fully accept that there are occasions in which the principle of stare decisis may be departed from but I consider that these are extremely rare. A Court may depart from a decision of a Court of equal jurisdiction if it appears that such a decision was given in a case in which either insufficient authority was cited or incorrect submissions advanced or in which the nature and wording of the judgment itself reveals that the Judge disregarded or misunderstood an important element in the case or the arguments submitted to him or the authority cited or in some other way departed from the proper standard to be adopted in judicial determination."
24. Reference was also made to a decision of the Court of Appeal in the case of Clark v. University of Lincolnshire and Humberside [2000] 3 ALL ER 752 which concerned the status of judgments on applications for permission to appeal to the Court of Appeal. In that case it was concluded that judgments given on applications for permission to appeal are not binding authorities and the Court did not encourage reference to be made to them. Lord Woolf M.R. stated at page 762 as follows:
"Until recently it would be unusual for any judgment on an application for permission to be reported. However, as a result of the development of specialists reports, even in relation to applications for permission, judgments are now commonly reported. However, the fact that they are reported does not alter the consideration which the judge can give to the terms in which his judgment is couched. Further more the judge is not usually referred to reports of other cases, or if he is referred to reports, he will have them drawn to his attention in a much more summary manner than would be the case on the hearing of an appeal.
Even if Mr Vineall had been right, when he submitted there is no decision which directly deals with the status of judgments of this court on applications for permission to appeal, it is well established that the court does not regard them as binding authorities. This is confirmed by the case of Robinson v. Secretary of State for the Home Department [1997] Imm AR 568 at p. 580 where there is reference to the judgment of Simon Brown LJ in R. v. Kensington and Chelsea LBC, ex parte Kihara [1996] 29 HLR 147. The court does not therefore have to follow the decisions given on applications for permission to appeal. They are at best only of persuasive weight. The court does not encourage reference to judgments given on applications for permission. However, if a court is prepared to be referred to such judgments, it should be clearly understood that they are not binding."
It would appear from that judgment that a judgment on an application for permission to appeal is not entirely dissimilar to a determination of this Court on an application for leave to appeal to this Court and as has been stated many times in such determinations, the determination will not save in the rarest of cases have a precedential value in relation to the substantive issues in the context of a different case. Therefore, I do not find that decision to be of assistance in the context of this case.
25. It should be noted that the judgment delivered in this case in the High Court was a composite judgment dealing with a number of applicants. The ex parte application was first made on the 9th September, 2016 and was before the Court on a number of occasions before judgment was delivered. It is important to acknowledge that an ex parte application, however lengthy and detailed the hearing may be, is not the same as a full hearing with both sides represented. Nevertheless, applications in the asylum ex parte list regularly result in detailed written judgments which are of importance in developing the jurisprudence of this area of the work of the High Court. The number of areas in which judicial review is the appropriate method of challenging an administrative decision has expanded significantly over the years. That being so, one can understand how judgments on the ex parte side can be of significance in terms of the matters which will give rise to leave to apply for judicial review. Just as in the asylum list, the law in relation to a number of areas has developed significantly because of the way in which more appeals from administrative decision makers are being dealt with by way of judicial review. The gateway to an appeal is the ex parte application for leave to apply for judicial review. Many such applications result in a detailed, written judgment. The point to be made is that such decisions and judgments should not be disregarded simply because they are based on an ex parte application.
26. In the case of Worldport to which reference was made previously, Clarke J. indicated a number of reasons why one might not follow the decision of another judge of the same court. He referred to the reasons for not doing so as involving substantial reasons for believing that the initial judgment was wrong. He noted a number of factors that could give rise to a decision to come to a different view such as the fact that the initial decision was not based upon a review of significant relevant authority, where there was a clear error in the judgment or where the judgment sought to be revisited was delivered a sufficiently lengthy period in the past giving rise to the possibility that the jurisprudence of the court in that area could be said to have advanced in the intervening period. He emphasised the importance of consistency in relation to the approach by one judge to the decisions of another. However, I do not think that the it could be said that the Worldport line of authority is entirely apposite in relation to judgments, however detailed, made on ex parte applications. Nevertheless, generally speaking it would be prudent for one judge of the same court to take the same approach on an application for leave to apply for judicial review when the same issue or issues arise in the same way
27. It is, of course, important to point out that in the context of this case the learned trial judge was merely told that leave had been granted on the same point in a number of other cases. The learned trial judge expressed the view that the fact that one applicant has obtained leave on a particular point is not a guarantee that the next applicant must also do so if "upon examination" the point is found to be without merit. There are a number of observations to be made in relation to that view of the learned trial judge. It is obviously the case that he did not have the benefit of a written judgment from a colleague of the same rank in relation to the point raised. In many situations where an ex parte application for leave to apply for judicial review is considered, the fact that in similar circumstances leave has been granted may not, indeed, require that the next application will also merit the grant of leave to apply for judicial review for the very good reason that there may be factual differences or other elements in relation to the matter which would mean that it would be inappropriate for judicial review to be granted. However, the issue that arises in this case is an issue of law and relates to the statutory powers given to the RAC in relation to the manner in which it carries out an investigation. It may be a trite observation to say that the mere fact that another judge of the same level has seen fit to grant leave to apply for judicial review on the same point in not just one but a number of cases would at the very least suggest that the point raised was one which had the necessary substantial grounds as required under the Act of 2000. The use of the phrase by the learned trial judge "upon examination" seems to suggest a view that his colleague had not in fact examined the matter appropriately. Unfortunately, as mentioned previously, it does not appear that the learned trial judge had available to him a written judgment of his colleague. However, there is no basis for suggesting that the original decisions to grant leave on this point were based on an inadequate consideration of the applications. In my view in circumstances such as this, where it appears that one judge of the High Court has given leave to apply for judicial review in respect of a legal point as to the powers of the RAC, it would be difficult to envisage circumstances in which a colleague would not do likewise. One could envisage circumstances where it might be appropriate to refuse leave, if, for example, the first judge to grant leave had not been provided with all the relevant facts, circumstances or authorities dealing with the point. It might be that in the particular circumstances, the point at issue had been decided in a full hearing so that it was no longer necessary to decide the issue. There may be other good reasons. However, none appear to be present in this case.
28. A number of cases are affected by the issue said to arise. One might well understand the sense of injustice that would be felt by the appellants in this case, having been refused leave to apply for judicial review of the decision in their case, if, ultimately, the other judicial reviews in which the same point was raised were successful. Surely that would lead to an injustice in respect of these appellants.
29. This case does not fit into the terms of the decision in Worldport. Nevertheless, in circumstances where one judge of the High Court has granted leave to apply for judicial review on a net legal issue which arises in more than one case, it is difficult to see how the requirements of judicial comity would permit another judge of the same level to express a different view on an ex parte application for leave to apply for judicial review. The point having been raised in a number of cases in which leave has been granted seems to me to merit the grant of leave in all cases where the same issue of law arises unless there is a cogent reason for not doing so. Here, the issue is a very net point of law. In many cases, the application for leave to apply for judicial review will concern the facts of the case. Obviously, a variation in the facts of a case may be the explanation for a variation in the outcome of an application for leave to apply for judicial review. It is not unusual for a series of applicants to seek judicial review on the same issue when one applicant has been successful in applying for leave. It is difficult to see how they could be refused if they come within the same factual and legal circumstances
30. None of this is to say that the point at issue in these proceedings is one which will succeed following a full hearing. It may or may not. However I can see no basis for having refused leave in circumstances where leave had already been granted on the same point in other cases.
Conclusions
31. I have come to the conclusion that the learned trial judge erred in deciding that the appellants had not established substantial grounds for their applications for leave to apply for judicial review. I am also satisfied that in the circumstances of this case the learned trial judge erred in not following the decisions of his colleague to grant leave on the same issue where was no apparent basis for him to come to a different view.
In the circumstances, I would allow the appeal and thus, the appellants are entitled to apply for judicial review of the decision of the RAC.
