HI v Minister for Justice

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Keane C.J.
• Judgment Date: 14 July 2003
• Neutral Citation: [2003] IESC 42
• Date: 14 July 2003
• Docket Number: [S.C. No.

I (IWUALA) v. MIN FOR JUSTICE

BETWEEN

HIPPOLITUS IWUALA

APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAWREFORM

RESPONDENT

ON THE APPLICATION OF THE UNITED NATIONS HIGHCOMMISSIONER FOR REFUGEES

[2003] IESC 42

Keane C.J.

McGuinness J.

Fennelly J.

61/03

THE SUPREME COURT

Synopsis:

PRACTICE AND PROCEDURE

Third party intervention

Amicus curiae - Whether inherent jurisdiction to appoint amicus curiae - Application of United Nations High Commissioner for Refugees (61/2003 - Supreme Court - 14/7/2003)

Iwuala v Minister for Justice, Equality and Law Reform - [2003] 3 IR 197 - [2004] 1 ILRM 27

This was an application on behalf of the United Nations High Commissioner for Refugees for leave to appear as an amicus curiae. There was no opposition to the application.

Held by the Supreme Court (Keane CJ, McGuinness and Fennelly JJ) in acceding to the application on terms that the applicant would abide its own costs of its appearance that while there was no statutory provisions or rules of court providing for the appointment of an amicus curiae save in the case of the Human Rights Commission the court was satisfied that it did have an inherent jurisdiction where it appeared that this might be of assistance in determining an issue before the court.

Citations:

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S17(1)

CONSTITUTION

UNITED NATIONS CONVENTION ON THE STATUS OF REFUGEES 1951 ART 35

HUMAN RIGHTS COMMISSION ACT 2000 S8

UNITED STATES TOBACCO CO V MIN CONSUMER AFFAIRS & ORS 83 ALR 79

JOWITT DICTIONARY OF ENGLISH LAW (1959) "AMICUS CURIAE"

BRADY V CAVAN CO COUNCIL 1999 4 IR 99

LEVY V VICTORIA 1997 189 CLR 579

AG (CTH) V BRECKLER & ORS 1999 163 ALR 576

R V IMMIGRATION APPEAL TRIBUNAL & ANOR EX PARTE SAH (UNHCR INTERVENING) 1999 2 AER 545

SEPET & URDEN BULBUL V SECRETARY OF STATE FOR HOME DEPARTMENT (UNHCR INTERVENING) 2001 EWCA CIV 681

NORTHERN IRELAND HUMAN RIGHTS COMMISSION 2002 UKHL 25

NORTHERN IRELAND ACT 1998 S68

1 JUDGMENT of the Court delivered the 14th day of July,2003,by Keane C.J.

2 This is an application on behalf of the United Nations High Commissioner for Refugees (hereafter "the UNHCR") for leave to appear as an amicus curiae in this appeal. There was no opposition to the application by either the applicant or the respondent in the appeal. Having considered the written and oral submissions made on behalf ofthe UNHCR, the court decided to accede to the application on terms that the applicant would abide its own costs of its appearance. Since this was the first application of its kind made to this court, the court was of the view that it should reduce its reasons for acceding to the application to writing and give them at a later date.

3 In the proceedings the applicant sought, inter alia,the following reliefs:

4 (1) an order of certiorari quashing the decision of the respondent to refuse the applicant a declaration of refugee status;

5 (2) declarations that Sections 16 and 17(1) of the Refugee Act 1996(as amended) are repugnant to the Constitution of Ireland;

6 (3) an order, if necessary, extending the time for applying for leave for judicial review.

7 By order dated the 5 ^th November 2002, the High Court refused the application for judicial review but certified that its decision involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court. The point so certified is

"Is the refugee appeal tribunal acting intra vires if it takes into account the possibility of the applicant relocating within his own country when determining whether or not the applicant is a refugee within the meaning of S.2 of the Refugee Act 1996(as amended)?"

8 The present application was grounded on an affidavit of Papia Poutz Phiri, the representative of the UNHCR in Ireland, in which it was deposed that the UNHCR is the universal supervisory body for the protection of refugees under the 1951 United Nations Convention Relating to the Status of Refugees, generally referred to as the Geneva Convention. The deponent pointed out that Article 35 of the Convention provides for an obligation on the part of states to cooperate with the UNHCR in the exercise of its functions, including, in particular, by facilitating its duty of supervising the application of the provisions of the 1951 Convention. The deponent further averred that, in the development of its supervisory responsibilities, the UNHCR had identified the particular mechanism of amicus curiaeinterventions before the highest appellate courts of a country as an appropriate and effective means of better ensuring the correct interpretation and application of the conventions" provisions. It gave examples of the UNHCR having intervened before the Supreme Court of the United States and theSupreme Court of Canada in order to assist those courts with the interpretation of the 1951 Convention.

9 It was acknowledged in the written and oral submissions filed on behalf of the UNHCR that, with one recent exception, there are no statutory provisions or rules of court providing for the appointment of an amicus curiae: it was submitted that the jurisdiction to allow such an appearance derived from the inherent jurisdiction of the court. The exception is contained in S.8 of the Human Rights Commission Act 2000which enables the Human Rights Commission to apply to the High Court and this court, and the courts to allow the Commission to appear in appropriate cases as amicus curiae. The section provides inter alia that

"The functions of the Commission shall be -"

10 ... (h) to apply to the High Court or the Supreme Court, for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae, in proceedings before that court that involve or are concerned with the human rights of any person and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of thesaid courts is hereby empowered ta grant in Us absolutediscretion)."

11 Third party intervention is provided for in the relevant Rules of the Superior Courts dealing with intervention in matrimonial causes, admiralty actions in rem, probate and actions for the recovery of land. However, the intervention of parties under those provisions in protection of their own interests is to be distinguished from the appearance of an amicus curiae. The latter was traditionally disinterested in nature and intended exclusively to assist the court in its determination of a particular point of law.

12 Thus, it was certainly not unknown for a member of the bar in this jurisdiction, who was not actually engaged in a case but who happened to be in court, to intervene and draw the attention of the court to a decision which might otherwise have been overlooked. In United States Tobacco Company -v- Minister for Consumer Affairs and Others ( 83 ALR 79), the Federal Court of Australia cited the following definition of an amicus curiae from Jowitt's Dictionary of EnglishLaw:

"A friend of the court, that is to say a person, whether a member of the bar not engaged in the case or any otherbystander, who calls the attention of the court to some decision, whether reported...