FA v The International Protection Appeals Tribunal, The Minister for Justice and Equality, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Murray |
| Judgment Date | 09 November 2021 |
| Neutral Citation | [2021] IECA 296 |
| Docket Number | Court of Appeal Record No. 2021/66 Court of Appeal Record No. 2021/74 High Court Record No. 2017/310JR Court of Appeal Record No. 2021/75 High Court Record No. 2017/211JR Court of Appeal Record No. 2021/87 High Court Record No. 2017/181JR Court of Appeal Record No. 2021/69 High Court Record No. 2017/138JR Court of Appeal Record No. 2021/76 High Court Record No. 2020/193JR |
| Court | Court of Appeal (Ireland) |
[2021] IECA 296
Donnelly J.
Power J.
Murray J.
Court of Appeal Record No. 2021/66
High Court Record No. 2017/265JR
Court of Appeal Record No. 2021/74
High Court Record No. 2017/310JR
Court of Appeal Record No. 2021/75
High Court Record No. 2017/211JR
Court of Appeal Record No. 2021/87
High Court Record No. 2017/181JR
Court of Appeal Record No. 2021/69
High Court Record No. 2017/138JR
Court of Appeal Record No. 2021/76
High Court Record No. 2020/193JR
THE COURT OF APPEAL
CIVIL
JUDGMENT of Mr. Justice Murray delivered on the 9 th day of November 2021
. This should not be a complicated matter. Each of these judicial review proceedings was transferred to a holding list pending the outcome of another case raising similar legal issues, NVU v. Refugee Appeals Tribunal (‘ NVU’). The effect of the decision in NVU when ultimately determined by the Supreme Court ( [2020] IESC 48) was that the principal issue in these proceedings could never have been decided in the applicants' favour. This notwithstanding, the applicants say that they are entitled to the full costs of these actions.
. The applicants based that claim on the fact that subsequent to the judgment of the Supreme Court in NVU — and before any application was brought to dismiss their proceedings as being bound to fail — the Minister for Justice and Equality (‘the Minister’) made a decision which rendered the proceedings moot. Although that decision of the Minister conferred a significant benefit on the applicants, they say that because the mootness of their actions was brought about by a unilateral action of the Minister, the decision in Cunningham v. President of the Circuit Court [2012] IESC 39, [2012] 3 IR 222 (‘ Cunningham’) dictates that they are entitled to their costs from her.
. The applicants acknowledge that following the decision in NVU they could never obtain the principal relief claimed in their proceedings, and they accept that they secured an outcome from the decision of the Minister which they could never have gained from their legal actions. They say, however, that they should be awarded their costs because the Minister has failed to properly explain why she reached the decision she did and thus that the Court must assume her decision was a response to the proceedings and therefore an ‘ event’ triggering an entitlement to costs. They also contend that they should be awarded their costs because the Minister changed her position as to the substantive legal issue in the proceedings following their institution, because had she not made the decision in question they would have applied to amend their proceedings so as to seek different relief, and because their proceedings incorporated other reliefs which they claim justify their application for costs.
. Burns J. refused the applicants' application for their costs. I agree with her conclusion. The costs of proceedings (including the costs of proceedings that have become moot) are generally a matter for the discretion of the court. The decision of the Supreme Court in Cunningham provides guidance as to how that discretion should be exercised in many moot cases. However, nothing in the decision in that case or in the large number of reserved judgments applying it justifies the proposition that a party to judicial review proceedings whose action is clearly doomed to fail following the decision of the Supreme Court in a ‘ pathfinder’ or ‘ lead’ case can expect to obtain their legal costs when the State makes a subsequent decision in their favour of the kind in issue in this case.
. Nor can I see any basis in principle for that contention. As of the date of the Supreme Court decision in NVU the applicants had no case on the central issue in their proceedings and no basis for seeking their costs of those proceedings. It does not make sense that they should acquire such a right by reason of a subsequent administrative decision in their favour. The fact that the proceedings could have been amended to obtain different relief, or (in some of the cases) that other secondary grounds were agitated in the proceedings does not change that.
. The application was argued by counsel for each of the six named applicants resourcefully and, at points, ingeniously. In deference to their endeavours, having regard to the fact that the determination of the costs of many other cases has been adjourned pending the outcome of this appeal, and noting that this appears to be the first occasion on which this Court has addressed the cost implications of the outcome of a ‘ pathfinder’ or ‘ lead case’ on other similar actions, I deal here in some detail with the contentions they advance. However neither the length of this judgment nor the range of issues it canvasses should detract from the simplicity of my conclusion or the reasoning that leads to it. The applicants brought a case in which the principal ground agitated by them has been found to be misconceived and, in normal course, they would not have obtained any Order for the costs incurred in bringing that action. The subsequent exercise by the Minister of a statutory discretion in their favour does not and cannot alter that.
. The issues between the parties start – and indeed end — with Article 17 of Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person ( ‘the Dublin III Regulation’). Article 17(1) of the Dublin III Regulation confers a discretion on a Member State to assume responsibility for a protection application made in its territory notwithstanding that under the relevant provisions of the Regulation, another Member State has that function. Where a Member State exercises that discretion, it becomes the State responsible for the application for protection.
. The Article is framed in general terms, prescribing no procedure for the exercise of the discretion it confers:
‘By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation.
The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. Where applicable, it shall inform, using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003, the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant.
The Member State which becomes responsible pursuant to this paragraph shall forthwith indicate it in Eurodac in accordance with Regulation (EU) No 603/2013 by adding the date when the decision to examine the application was taken.’
. A question presented itself in Irish law as to where the power to exercise that discretion was vested. The applicants in these proceedings contended that it was conferred by the provisions of the European Union (Dublin System) Regulations 2014 S.I. No. 525 of 2014 (‘ the domestic Regulations’) upon the refugee assessment bodies — the Office of the Refugee Appeals Commissioner (‘ORAC’) and now the International Protection Office (‘IPO’), and on appeal from a decision of that office to the Refugee Appeals Tribunal (‘RAT’) and now the International Protection Appeals Tribunal (‘IPAT’).
. The Minister's stance on this issue was not straightforward. Originally, the Minister adopted the position that the relevant power was vested in ORAC under rule 3(1) of the domestic Regulations. That view was recorded in a letter sent in November 2015 by the asylum policy division of the Department of Justice and Equality to the Legal Aid Board (Refugee Legal Services). In that letter, while it was stated that the discretion exercisable under Article 17 of the Dublin III Regulation was vested in ORAC, the Minister also made it clear that this was not a matter to be considered by the Refugee Appeals Tribunal at appeal stage. While in one of these cases (that of AA) ORAC purported to exercise this jurisdiction, in a number of decisions RAT and thereafter IPAT refused to accept that it had any role in exercising the discretion provided for under Article 17. However, the Minister thereafter changed his position, insisting that the power to exercise this discretion was vested in the Executive and, never having been devolved, remained there. At the same time, in ...
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