L.R v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 20 December 2001
• Date: 20 December 2001
• Docket Number: [2000 No. 123 JR]
• Court: High Court

L.R. v. Minister for Justice

L.R. and L.T.

Applicants

and

The Minister for Justice, Equality and Law Reform and The Refugee Appeals Authority

Respondents

[2000 No. 123 JR]

High Court

Judicial review - Amendment of grounds - Grounds considered and refused at application for leave - Reinstatement of previous grounds - Jurisdiction of High Court - Principles applicable - Rules of the Superior Courts, 1986 (S.I. No 15), O. 28 and O. 84.

Aliens - Refugee law - Hope Hanlon procedure - Evidence - Recommendation of Appeals Authority - Whether statement contained in recommendation constituted finding of fact by Appeals Authority - Whether recommendation consistent with findings of fact.

The applicants were Romanian Roma who sought a declaration of refugee status in this jurisdiction. Having been refused a recommendation at first instance on the basis that they had failed to establish a well founded fear of persecution, the applicants appealed against this refusal to the second respondent.

In the course of its written recommendation, the Appeals Authority stated:-

"The objective information on Romania is that Roma are constantly harassed to the point of persecution. Additionally, the applicants were pentacostalists and they were persecuted for their religious beliefs."

The applicants sought leave to apply for judicial review on the basis that the Appeals Authority, having accepted the evidence and independent reports tendered on behalf of the applicants, was obliged to recommend them for refugee status. The High Court (O'Higgins J.) on the 13th March, 2000, granted leave to seek judicial review.

A substantial number of reliefs and grounds were not reflected in the order of the High Court granting leave. At the substantive hearing the applicants sought an amendment reinstating those grounds.

Held by the High Court (McKechnie J.), in dismissing the application to amend and the substantive application, 1, that any amendment to the grounds for judicial review fell to be determined in accordance with O. 84 of the Rules of the Superior Courts, 1986 and that O. 28 was not available in the context of judicial review proceedings.

Ahern v. Minister for Industry and Commerce [1990] 1 I.R. 55followed.

2. That it was not open to a judge of the High Court to grant leave to advance grounds for judicial review that had previously been refused by another judge of the same court.

McCormack v. Garda Síochána Complaints Board [1997] 2 I.R. 489 and Molloy v. Governor of Limerick Prison (Unreported, Supreme Court, 12th July, 1991) distinguished.

3. That the extract relied upon by the applicants from the recommendation of the second respondent did not constitute a finding of fact but a reiteration of the evidence as presented to the second respondent on behalf of the applicants.

Cases mentioned in this report:-

Ahern v. Minister for Industry and Commerce [1990] 1 I.R. 55.

Bell v. Pederson [1995] 3 I.R. 511; [1996] 1 I.L.R.M. 512.

Director of Public Prosecutions v. Corbett (No. 2) [1992] I.L.R.M. 674.

Fakih v. Minister for Justice [1993] 2 I.R. 406; [1993] I.L.R.M. 274.

Gutrani v. Minister for Justice [1993] 2 I.R. 427.

Krops v. The Irish Forestry Board Ltd. [1995] 2 I.R. 113; [1995] I.L.R.M. 290.

Laurentiu v. Minister for Justice [1999] 4 I.R. 26; [2000] 1 I.L.R.M. 1.

McCormack v. Garda Síochána Complaints Board [1997] 2 I.R. 489; [1997] 2 I.L.R.M. 321.

Molloy v. Governor of Limerick Prison (Unreported, Supreme Court, 12th July, 1991).

O'Leary v. Minister for Transport [2001] 1 I.L.R.M. 132.

P. v. Minister for Justice [2002] 1 I.L.R.M. 16 (H.C.); [2002] 1 I.L.R.M. 38 (S.C.).

Rubotham (Infant) v. M & B Bakeries Ltd. [1993] I.L.R.M. 219.

The State (Duggan) v. Evans (1978) 112 I.L.T.R. 61.

Tang v. Minister for Justice [1996] 2 I.L.R.M. 46.

Judicial review.

The facts have been summarised in the headnote and are more fully set out in the judgment of McKechnie J., infra.

The applicants were granted leave to apply for judicial review by the High Court (O'Higgins J.) on the 13th March, 2000. The applicants' notice of motion was filed on the 5th April, 2000.

The case was heard by the High Court (McKechnie J.) on the 15th February and the 22nd May, 2000.

Cur. adv. vult.

McKechnie J. 20th December, 2001

1. On the 13th March, 2000, O'Higgins J. granted leave to the applicants to seek by way of an application for judicial review the reliefs specified at para. D(1) to D(4) inclusive, of the statement grounding the application and did so on the grounds mentioned at para. E(vii)(a) and (vii)(b) of the said statement. The reliefs as sought, included, as against the first respondent, an order ofcertiorari quashing his decision of the 11th January, 2000, wherein he refused the appeal of each of the applicants for refugee status within this State, and as against the second respondent, a declaration that it entertained irrelevant considerations when dealing with the aforesaid appeals. The grounds upon which permission was given, to pursue these reliefs, were as follows:-

"(vii) In that recommendation which is exhibited in the grounding affidavit to these proceedings the second respondent states at para. 1, p. 3 of his recommendation as follows:-

'The objective information on Romania is that Roma are constantly harassed to the point of persecution. Additionally the applicants were pentecostalists and they were persecuted for their religious beliefs.'

(a) The second respondent having accepted that evidence on behalf of the applicants was obliged to recommend the applicants herein for refugee status;

(b) the second respondent failed to do so and thereby allowed irrelevant considerations to influence him, the recommendation he ultimately made is not consistent with the findings accepted on the evidence."

The recommendation referred to was one of two made by the second respondent in this case dealing with the applicants, who are all members of the same family and whilst the extract as quoted, appeared in one only, nevertheless the hearing of this application proceeded as if it was contained in both and accordingly this judgment likewise proceeds on that basis.

2. The following is a brief summary of the more relevant facts, matters and circumstances giving rise to this application. Having arrived in Ireland some days earlier, the applicants, who are respectively husband and wife and daughter and son, applied on the 21st February, 1997, for refugee status. On the 6th May, 1999, their applications were refused on the basis that they had failed to demonstrate a well founded fear of persecution for a Convention reason. As was their right, on the 11th June, 1999, solicitors for the applicants appealed on their behalf against that refusal. On the 19th October, an oral hearing took place before the duly appointed second respondent. On that occasion the first three applicants attended and their appeal was heard. On the 9th November, the second respondent issued its report which had as its conclusion a recommendation that the appeals should not be allowed. On the 30th November, an oral hearing into the appeal of the fourth applicant was held. The recommendation in that case issued on the 13th December with a similar conclusion. On the 11th January, 2000, a duly authorised officer from the asylum division of the respondent ministry, informed...