N (B N) v Min for Justice & Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: MR JUSTICE HEDIGAN
• Judgment Date: 28 October 2008
• Neutral Citation: [2008] IEHC 333
• Court: High Court
• Date: 28 October 2008

[2008] IEHC 333

THE HIGH COURT

[1065 JR/2006]

N (B N) v Min for Justice & Refugee Applications Commissioner

BETWEEN

B. N. N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(a)

GLENCRÉ TEORANTA v MAYO CO COUNCIL & BORD PLEANÁLA UNREP HIGH (COMMERCIAL) MACMENAMIN 13.7.2006 2006/26/5686

PLANNING AND DEVELOPMENT ACT 2000 S50(4)(f)(i)

HARDING v CORK CO COUNCIL & BORD PLEANÁLA UNREP HIGH CLARKE 30.11.2006 2007/28/5735

ARKLOW HOLIDAYS LTD v BORD PLEANÁLA & ORS UNREP HIGH CLARKE 11.1.2008 2008 IEHC 2

HOLMES THE COMMON LAW 1ED 1881

REFUGEE ACT 1996 S11

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH CLARKE 10.5.2005 2005/31/6357

E (PR) v MIN FOR JUSTICE & REFUGEE APPLICATIONS COMMISSIONER UNREP HIGH BUTLER 17.10.2007 2007/22/4456

M (K) v REFUGEE APPEALS TRIBUNAL & ORS UNREP HIGH EDWARDS 18.7.2007 2007/37/7719

S (F O) v MIN FOR JUSTICE & REFUGEE APPLICATIONS COMMISSIONER HIGH MACMAHON 11.7.2008 2008 IEHC 238

OLATUNJI v REFUGEE APPEALS TRIBUNAL (TAIT) & MIN FOR JUSTICE UNREP HIGH FINLAY-GEOGHEGAN 7.4.2006 2006/46/9904

MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP HIGH CLARKE 23.6.2005 2005/40/8261

O (I) v MIN FOR JUSTICE & ORS UNREP HIGH DUNNE 24.5.2007 2007/45/9495

IMMIGRATION

Judicial review

Appeal - Application for leave to seek judicial review refused by High Court- Application for leave to appeal to Supreme Court - Applicable principles - Whether decision involved point of law of exceptional public importance - Alternative remedies - Existence of statutory right of appeal - Fair procedures - Whether any lack of clarity as to state of law on matter - Whether questions advanced constituted point of law of exceptional public importance - Glancré Teo v Mayo County Council [2006] IEHC 250, (Unrep, MacMenamin J, 13/7/2006) followed; Harding v Cork County Council [2006] IEHC 450, (Unrep, Clarke J, 30/11/2006), Idiakheua v Minister for Justice [2005] IEHC 150 (Unrep, Clarke J, 10/5/2005) and Arklow Holidays Ltd v An Bord Pleanála [2008] IEHC 2, (Unrep, Clarke J, 11/1/2008) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5(3)(a) - Certificate for leave to appeal to Supreme Court refused - (2006/1065JR - Hedigan J- 28/10/2008) [2008] IEHC 333

N(BN) v Minister for Justice, Equality and Law Reform

1 MR JUSTICE HEDIGAN ON AN APPLICATION FOR LEAVE TO APPEAL, delivered on the 28th day of October, 2008

2 1. On 9 ^th October, 2008, the applicant was refused leave to seek judicial review of the decision of the Office of the Refugee Applications Commissioner (ORAC) to recommend that she should not be declared a refugee. The background facts and the legal principles involved may be found in the text of the judgment. On 23 ^rd Octobers 2008, an application was made on the applicant's behalf seeking leave to appeal to the Supreme Court from the decision of 9 ^th October, 2008.

The Applicable Principles

3 2. The grant of leave to appeal in the present case is regulated by section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000, which provides as follows:-

"The determination of the High Court of an application for leave to apply for judicial review … or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court."

4 3. In Glancré Teoranta v Mayo County Council [2006] IEHC 250, MacMenamin J. was considering the grant of a certificate under section 50(4)(f)(i) of the Planning and Development Act 2000 (as amended), which is identical to section 5(3)(a) of the Act of 2000. As to the meaning of "exceptional public importance", MacMenamin J. conducted a review of a number of relevant decisions and set out a number of principles applicable to the consideration of whether or not a certificate should be granted, namely:-

"? am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the consideration of the issues herein."

1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court […].

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding "exceptional public importance" and "desirable in the public interest" are cumulative requirements which although they may overlap, to some extent require separate consideration by the court […].

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word "exceptional".

8. Normal statutory rules of construction apply which mean inter alia that "exceptional" must be given its normal meaning.

9. "Uncertainty" cannot be "imputed" to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be...