MYA v Refugee Appeals Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 13 February 2017
• Neutral Citation: [2017] IEHC 73
• Date: 13 February 2017
• Court: High Court
• Docket Number: [2016 No. 679 J.R.] [2016 No. 740 J.R.] [2016 No. 706 J.R.] [2016 No. 709 J.R.] [2016 No. 710 J.R.] [2016 No. 741 J.R.]

[2017] IEHC 73

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2016 No. 679 J.R.]

[2016 No. 740 J.R.]

[2016 No. 706 J.R.]

[2016 No. 709 J.R.]

[2016 No. 710 J.R.]

[2016 No. 741 J.R.]

BETWEEN

M.Y.A.

APPLICANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

BETWEEN

M.J.

APPLICANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

BETWEEN

I.G.

APPLICANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

BETWEEN

X.G.

APPLICANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDEN

BETWEEN

F.G.

APPLICANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

BETWEEN

B.A.

APPLICANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

Asylum, Immigration & Nationality – S. 13 of the Refugee Act, 1996 – International Protection Act 2015 – Leave to appeal to the Court of appeal – Lack of substantial grounds – Denial of asylum claim

Facts: The six applicants in the six set of different proceedings sought leave to file an appeal to the Court of Appeal on the basis of two proposed questions. The High Court had earlier refused leave to seek judicial review in relation to their unsuccessful asylum applications. However, the sixth applicant had been granted leave to seek judicial review on limited grounds. The proposed questions cited by the applicants were whether the preparation of draft report under s. 13 of the Refugee Act 1996 constituted an ‘investigation’ of an asylum case in cases where that report was adopted without review; and whether the judgment of the High Court breached the principle of judicial comity as the High Court had previously determined that the point of law raised in the main proceedings had qualified for being challenged before the Court of Appeal.

Mr. Justice Richard Humphreys refused to grant leave to all the applicants. The Court found that in the present case, the commissioner had reviewed the draft report prepared by the panel member, which was different from a plain reading of the draft report. The Court held that the acts of the panel member/contractor did not displace the statutory function of the commissioner and thus, there was no substantial ground to challenge the impugned finding. The Court held that since the judgment of the learned judge of the High Court was given ex-tempore and without giving any reasons, it had no binding and precedential value save in cases where a note to that effect had been obtained by the parties. The Court observed that leave should only be granted in cases where a great public interest was involved and the question of law proposed was determinative of the proceedings.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 13th day of February, 2017

1 In M.Y.A. v. Refugee Applications Commissioner (No. 1) [2016] IEHC 647 (Unreported, High Court, 14th November, 2016), I refused leave to the first five applicants referred to in the title to this judgment.

2 In B.A. v. Refugee Applications Commissioner [2016] IEHC 672 (Unreported, High Court, 14th November, 2016), I granted leave to the sixth applicant on certain grounds but declined to give leave on the ground that arose in the M.Y.A. case.

3 Mr. Feichín MacDonagh S.C. (with Mr. Shannon Michael Haynes B.L.) now applies for leave to appeal on behalf of all six applicants.

4 I have considered the case law relating to the criteria for the grant of leave to appeal including Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 (MacMenamin J.) As outlined in S.A. v Minister for Justice and Equality (No 2) [2016] IEHC 646 (Unreported, High Court, 21st November, 2016), to the factors set out in Glancré I would add four further criteria, as follows:

(a) The application for leave to appeal should be made promptly and ideally within the normal appeal period (10 days in the case of a leave application and 28 days in the case of a substantive decision). The applicant has applied promptly in the present application.

(b) The question of law should be one which is actually determinative of the proceedings, not one which if answered differently would leave the result of the case unchanged.

(c) The grant of leave should provide some added value to any matters already before the Court of Appeal; thus the fact that an issue is independently the subject of a pending appeal would tend to dilute the public interest in the point being brought before that court a second time.

(d) The question must be formulated with precision in a manner that indicates how it is determinative of the proceedings and should not invite a discursive, roving, response from the Court of Appeal.

5 Mr. MacDonagh asked me to add the Minister for Justice and Equality as a respondent in each of the cases and, albeit at a late stage, I did so with the consent of Ms. Denise Brett S.C. (with Ms. Lucy McRoberts B.L.) for the commissioner, who was also instructed to appear for the Minister.

6 Under s. 70(21) of the International Protection Act 2015, the Chief International Protection Officer is to be substituted in proceedings of this type for the commissioner and I also made an order to that effect on consent.

Proposed questions of exceptional public importance

7 The proposed questions of law on which the application for leave to appeal is based are as follows;

(a) Does the preparation of a draft report for the purposes of s. 13 of the Refugee Act, 1996, constitute the ‘investigation’ of an asylum claim in circumstances where there is no review of, or amendment to, the draft report and no further investigation takes place and, if so is an authorised officer permitted to perform such a function?

(b) Did the judgment of the court breach the principle for judicial comity or otherwise contravene the principle flowing from Re Worldport Ireland Ltd [2005] IEHC 189, in circumstances where the High Court (MacEochaidh J.) had previously made a determination that the point of law relied upon in these proceedings raised substantial grounds for challenging the impugned decisions?

The first question

8 On the first point, Mr. MacDonagh submits that the panel member or authorised officer actually conducted an investigation and no further investigation took place. He submits that the only investigation that ever took place in respect of these applicants is an investigation conducted by the panel member. Mr. MacDonagh submits that therefore the commissioner has not conducted an investigation under the Act. It is suggested that ‘ the draft report was in substance the final report of the only investigation actually carried out’. Thus the panel member ‘ went beyond their remit as contemplated in the Act’.

9 He submits that O'Keefe J. decided in E.F. v Clinical Director of St Ita's Hospital [2009] IEHC 253 that a statutory function to remove a person to an approved centre could not be delegated to a contractor. That decision seems to me to turn on its own special facts and the specific wording of the statute which requires that the removal be ‘by members of the staff of the approved centre’ (see p. 2 of the judgment). Ms. Brett...