AW v Minister for Justice and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 24 June 2016
• Neutral Citation: [2016] IEHC 422
• Docket Number: [2013 No. 928 J.R.]
• Court: High Court
• Date: 24 June 2016

BETWEEN

A.W.

APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENT

(No. 3)

[2016] IEHC 422

[2013 No. 928 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Leave to appeal to the Court of Appeal – Point of law of exceptional public important – Award of costs – Restraint on deportation

Facts: The applicant sought leave to appeal to the Court of Appeal against the substantive order of the Court, along with an order of costs in their favour, alleging that the questions raised needed immediate redressal on the basis that they were points of law of exceptional public importance. The applicant raised the questions namely, whether the respondent was mandated to consider the submissions made by the asylum-seeker as to why the adverse credibility findings made by asylum decision-makers should not be adopted while making a deportation order and whether the detention of the failed asylum-seeker was a threat to the human rights of the applicant.

Mr. Justice Richard Humphreys refused to grant leave to the applicant. The Court held that the questions raised did not involve an element of exceptional public importance and the law had been well-settled in the case that the respondent was not bound to consider the adverse credibility findings of the decision-maker unless there were compelling circumstances, which were not present in the instant case. The Court held that there was no evidence that the applicant would be meted out ill-treatment upon his return to the country of origin in gross violation of human rights. The Court held that there were no special circumstances to depart from the normal rule that costs should follow the events.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 24th day of June, 2016

1 Following the substantive judgment in this case ( A.W. v. Minister for Justice and Equality (No. 2) [2016] IEHC 111 (Unreported, High Court, 15th February, 2016)) Mr. Colm O'Dwyer S.C. (with Mr. Colin Smith B.L.) for the applicant has applied for leave to appeal to the Court of Appeal. In support of that application he has identified two proposed questions of law which he submits are of exceptional public importance such that it is in the public interest that an appeal should be brought.

2 I have had regard to the caselaw on the issue of leave to appeal, including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (Unreported, High Court, MacMenamin J., 13th July, 2006) and Arklow Holidays Limited v. An Bord Pleanála [2007] 4 I.R. 112 (Clarke J.). In particular in Arklow Holidays at para. 4(ii), Clarke J. emphasised that ‘the importance of the point must be public in nature and must, therefore, transcend well beyond the individual facts and parties of a given case’, citing Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 704 (McKechnie J.). It was also emphasised that the point must be one in respect of which some uncertainty arises making it appropriate for resolution on appeal.

The first proposed question

3 The applicant's first proposed question of law is ‘whether the Minister, in considering the issue of refoulement and deciding whether to make a deportation order in respect of a person, is obliged to consider and assess submissions made by the person as to why adverse credibility findings made by asylum decision-makers ought not to be adopted’.

4 Mr. O'Dwyer submits that this question affects virtually every applicant. But that does not seem to me to be the case. It is only of potential relevance where the person has firstly been through the asylum process and secondly where an applicant's credibility has been found wanting during that process. In any event, as I noted in the substantive judgment, the Minister did not blindly follow the finding of the Tribunal, but gave a reason for doing so, namely that the Tribunal had heard the applicant and was in a better position to assess her credibility than the Minister, who was conducting a paper exercise. There is, it seems to me, a certain lack of reality in suggesting that a Minister can meaningfully reassess a credibility finding previously made by someone who had actually heard the applicant.

5 The substantive judgment in this case held that there was no general obligation to reconsider adverse credibility findings, made earlier in the process, at the deportation order stage. Even assuming that that is a point of public importance, no uncertainty has been demonstrated in relation to it.

6 Hypothetically it may be argued that if some future applicant comes forward in exceptional circumstances with some very compelling new feature supportive of credibility that is introduced at the deportation stage, it might be argued that there be a greater onus on the Minister to consider this. But even assuming in favour of the applicant that such a contention could be made, that is very much a fact-specific situation that would only arise in very limited cases. On the facts this...