M.O.S.H (Pakistan) v Refugee Appeals Tribunal and Others

 
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[2015] IEHC 331

THE HIGH COURT

[No. 378 J.R./2011]
H (MOS) [Pakistan] v Refugee Appeals Tribunal & Ors
JUDICIAL REVIEW

BETWEEN

M.O.S.H (PAKISTAN)
APPLICANT

AND

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

2011/378JR - Eagar - High - 21/5/2015 - 2015 IEHC 331

Asylum – Immigration & Nationality – The Refugee Appeals Tribunal – S. 5(3) (a) Illegal Immigrants Trafficking Act 2000 – Leave to appeal – Test of irrationality in judicial review

1

1. On the 27 th March 2015 this Court gave judgment on an application for judicial review and quashed the decision of the first named respondent to affirm the recommendation of the Refugee Applications Commissioner and made an order remitting the appeal of the applicant for a determination de novo by a separate member of the Refugee Appeals Tribunal.

2

2. The respondent now applies under s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 for a certificate of leave to appeal to the Court of Appeal on the basis that the judgment "involves a point of law of exceptional public importance" and that "it is desirable in the public interest that such an appeal be taken". The criteria to be applied by this Court in ruling on the application for a certificate under s. 5(3)(a) are not in dispute.

3

3. Following from the decisions of Cooke J. in I.R. v. The Minister for Justice Equality and Law Reform & Refugee Appeals Tribunal [2009] IEHC 510 and the decision of Clarke J. in Arklow Holidays v. An Bord Pleanala [2007] 4 I.R. 112 I say the following principles appear to apply:-

1

) The case must raise a point of law of exceptional public importance.

2

) The area of law involved must be uncertain such that it is in the common good that the uncertainty be resolved for the benefit of future cases.

3

) That it is desirable in the public interest that an appeal should be taken to the Court of Appeal.

4

) The uncertainty as to the point of law must be genuine and not merely a difficulty in predicting the outcome of the applicant' arguments.

5

) The point of law must arise out of the court's decision and not merely out of some discussion at the hearing.

6

) The requirements of exceptional public importance and the desirability of an appeal in the public interest are cumulative requirements.

7

) The importance of the point must be public in nature and must therefore transcend well beyond the individual facts and the parties of a given case.

8

) The requirement that the court be satisfied that it is desirable in the public interest that an appeal should be taken to the Court of Appeal is a separate and independent requirement from the requirement that the point of law is one of exceptional importance. On that basis even if it can be argued that the law in a particular area is uncertain the court may not on the basis, inter alia, of time or costs consider that it is an appropriate case to certify the case to the Court of Appeal.

9

) I have considered the written submissions and oral submissions of counsel for the respondent and counsel for the applicant.

4

4. The Court in this case followed the reasoning of MacEochaidh J. in R.O. (an infant suing her mother and next friend A.O.) v. Minister for Justice Equality and LawReform and Margaret Leavey (sitting as the Refugee Appeals Tribunal) [2012] IEHC 573. MacEochaidh J. followed the decision of Herbert J. in Keagnene v. Minister for Justice Equality and Law Reform [2007] IEHC 17. No application for a certificate was made in R. O. (supra)

5

5. The respondents now request that the Court would certify a question as one involving a point of law of exceptional public importance such that it is desirable in the public interest that an appeal should lie:

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