B.W. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 833
• Docket Number: [2012 No. 335 J.R.]
• Court: High Court
• Date: 21 December 2015

[2015] IEHC 833

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2012 No. 335 J.R.]

IN THE MATTER OF THE REFUGEE ACT 1996, AS AMENDED, AND

IN THE MATTER OF THE IMMIGRATION ACT 1999, AND

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

B.W.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL, MINISTER FOR JUSTICE AND EQUALITY, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

(No. 3)

Asylum, Immigration & Nationality – The Refugee Act 1996 – The Immigration Act 1999 – The Illegal Immigrants (Trafficking) Act 2000 – The European Convention on Human Rights Act 2003 – Leave to appeal to the Court of Appeal – Issue of utmost public importance – Conflict of opinion between two High Court judgments – To what extent severance of the decision of the Refugee Appeals Tribunal permissible – Award of costs

Facts: Following the liberty given to the applicant by the High Court to amend her statement of grounds while refusing all the reliefs, the applicant now came to the Court seeking a certificate to appeal to the Court of Appeal on the basis that an exceptional point of law had arisen in the present case. The respondents contended that they should be awarded costs of the proceedings as no fruitful result would follow even after the grant of leave.

Mr. Justice Richard Humphreys granted leave to appeal to the Court of Appeal. The Court granted an order to award the costs of the proceedings including the reserved costs to the applicant on the condition that the applicant would expeditiously file an appeal before the Court of Appeal subject to a stay of 28 days from the date of perfection of the said order. The Court held that if the applicant failed to file an appeal within the prescribed time, there would be a permanent stay on the order for costs. The Court held that the question as to whether the final decision of the Refugee Appeals Tribunal, supported by minor invalid reasons not going to the core of the claim but impacting the core claim, could be upheld was a question of exceptional public importance and needed to be resolved to bring finality to the conflict of opinion between judgments of the High Court. The Court found that the resolution of the aforesaid question was desired for the common good and refugee dispute resolution bodies and it had far-reaching complications. The Court opined that there would be a departure from the normal rule "costs follow that event" in the present case.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of December, 2015

1 In B.W. v. RAT (No. 1) [2015] IEHC 725, I allowed the applicant to amend her statement of grounds in certain respects. In B.W. v. RAT (No. 2) [2015] IEHC 759, I refused all reliefs to the applicant, including those introduced by the amendment. The present judgment deals with an application by the applicant for leave to appeal, and also with the questions of costs.

Leave to appeal

2 In the judgment given today in R.A. v. Refugee Appeals Tribunal (No. 2) (21st December, 2015), I identify a number of issues relevant to the question of whether a conflict between two High Court judgments is capable of giving rise to a point of law of exceptional public importance. In my view, similar considerations apply in this case. The substantive judgment in the present proceedings has endeavoured to identify two separate streams of potentially conflicting High Court authority. Furthermore, as Mr. Michael Lynn, S.C., who appears (with Mr. Gary O'Halloran, B.L.) for the applicant points out, these authorities deals with an issue that arises considerable frequency, and will continue to arise with the same frequency, namely the extent to which a cumulative decision of the Refugee Appeals Tribunal can be severed in the event of it including one or more invalid elements.

3 Ms. Silvia Martinez, B.L., who appears for the respondent submits that it can be anticipated that the decision in B.W. v. RAT (No. 2) will be followed and that, therefore, 'there is no uncertainty which needs to be resolved' because 'this Court has clarified the position'. While it is possible that this outcome may be achieved, such a position of legal certainty will not be known for a considerable period of time, and will depend on the outcome in numerous further future cases before other High Court judges. As in R.A. (No. 2), the quickest and most satisfactory way in which this matter, which in the circumstances is a point of law of exceptional public importance, can be resolved, is by way of an appeal to the Court of Appeal. I am satisfied that it is, therefore, in the public interest that an appeal be taken to that court. I have considered all of the elements of the Glancré Teoranta v. An Bord Pleanála [2006] IEHC 205 test and I consider them satisfied in this case.

4 I will, therefore, grant the applicant leave to appeal, and for that purpose will certify a question of law as follows, namely whether, in the case of a decision that is supported by a number of reasons, one or more of which are unsustainable, the overall conclusion can be upheld if the court considers, as a matter of reason and common...