Oj v Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 29 April 2010
• Neutral Citation: [2010] IEHC 176
• Docket Number: [2008 No. 185 JR]
• Court: High Court
• Date: 29 April 2010

J (O) & J (T)(Minors) v Refugee Applications Commissioner & Ors

JUDICIAL REVIEW

BETWEEN/

O.J. AND T.J. (MINORS SUING BY THEIR MOTHER AND NEXT FRIEND J.J.)

APPLICANTS

AND

REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL AND IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

[2010] IEHC 176

[No. 185 J.R./2008]

THE HIGH COURT

PRACTICE AND PROCEDURE

Costs

Wasted costs order - Solicitors -Whether costs incurred unnecessarily - Whether conduct of solicitor "improper or unreasonable" - Whether solicitor in breach of duty to court - Kennedy v Killeen Corrugated Products Ltd [2006] IEHC 385 [2007] 2 IR 561 followed - Rules of the Superior Courts 1986 (SI 15/1986), O 99, r 7 - Wasted costs awarded against plaintiffs' solicitors - (2008/185JR - Cooke J - 29/4/2010) [2010] IEHC 176

J(O) & J(T) (minors) v Refugee Applications Commissioner

RSC O.99 r7

REFUGEE ACT 1996 S13

KAYODE v REFUGEE APPLICATIONS CMSR UNREP SUPREME 29.1.2009 (EX TEMPORE)

REFUGEE ACT 1996 S17(1)

KENNEDY v KILLEEN CORRUGATED PRODUCTS LTD 2007 2 IR 561 2006/32/6745 2006 IEHC 385

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S18

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

1 1. When this application for leave came on for hearing before the Court on 5 ^th February, 2010 the Court, having read the papers, including the written legal submissions, in advance and for the reasons explained in greater detail below, expressed doubts to counsel for the applicant as to whether the proceeding was properly conceived and stateable. Having heard the case opened and an outline of the supporting arguments from counsel, the Court was confirmed in its doubts and indicated that the application would be refused as misconceived and unstateable.

2 2. Counsel for the respondents thereupon applied for the costs of the proceeding and indicated that, as had been stated by way of warning to the applicants at an earlier hearing, an application was to be made also for an order pursuant to O. 99, r. 7 of the Rules of the Superior Courts fixing the applicants' solicitor with liability for those costs. The Court considered that such an exceptional application ought properly to be brought on a notice to the applicants, grounded on appropriate evidence by affidavit. In those circumstances the Court adjourned the consideration of costs to enable such steps to be taken. This is the Court's ruling on that application following a full hearing on the issue on 19 ^th April, 2010.

3 3. The background to the circumstances in which this application comes to be made can be explained in greater detail as follows.

4 4. The applicants' mother arrived in Ireland in 2003 and claimed asylum. In May 2007 she was granted residency in the State under the IBCO 5 Scheme, a child having been born to her in the State since her arrival here.

5 5. The applicants were born respectively on 18 ^th August, 1992 and 30 ^th May 1994 in Nigeria. They arrived in Ireland in July 2007 to be reunited with their mother and Irish sibling. On 15 ^th January, 2008, the mother attended at the offices of the Refugee Applications Commissioner and made (or at least was understood by the Commissioner to have made,) an application for asylum on behalf of the two children. The report of the Commissioner under s. 13 of the Refugee Act 1996 recommended that the applicants be not declared to be refugees.

6 6. Upon receipt of that report the applicants' mother consulted her present solicitor Sean Mulvihill, who had, according to his affidavit sworn in this proceeding on 6 ^th April, 2010, already represented her in relation to deportation decisions and EU. Treaty rights matters. Upon being consulted Mr. Mulvihill did two things.

7 7. First, he lodged a notice of appeal dated 12 ^th February, 2008 against the s. 13 report to the Refugee Appeals Tribunal. This was clearly directed at challenging the substance of the s. 13 report as it stood; the grounds pleaded being directed at errors of fact and errors of law alleged to have been made in the report in respect of the case made by the applicants to qualify for refugee status. Furthermore, copy documentation was lodged with the notice of appeal concerning country of origin information on abuses of human rights in Nigeria.

8 8. On the same day Mr. Mulvihill wrote to the office of the Commissioner in the following terms:

"We are acting under the instructions of the above clients and their mother who has residency here on the basis of the IBC Scheme. We have received 10-day appeals from your office for the above children, it is clear from the instructions of their mother that she brought these children to your office for family reunification to be added to the mother's claim. Please find enclosed letters from the applicant's mother. We would therefore request that you add the children onto their mother's case. It is clear from the applicants' mother that she went to your office for family reunification and it is clear from the interview that the applicants were looking for family reunification with their mother. If we do not hear from you within three days we have no option but to issue judicial review proceedings in this matter."

9 9. The letter signed by the applicants' mother which was enclosed and which was dated 5 ^th February, 2008 was in the following terms:

"With due respect I wish to inform your office that my intension is not to seek asylum for my children (O. and T.J.). I only want both of them to reunite with me and that is why I have brought them to the Department of Justice for family reunification. They cannot be return to Nigeria because there is nobody to take care of them because my first son Tolulope who is taking care of them he has married and living with his wife now while my second born Babatund and my third born A.J. had got permission into the University of Ibadan and both of them are now in the campus and my husband Mr. M.J. is here with me in Ireland. For this reason I will like my application to be withdrawn for asylum seeker to family reunification. I hereby forward the application for your consideration please."

10 10. On 20 ^th February, 2008, the present judicial review proceedings were initiated. Amongst the fourteen reliefs sought were the following:

2 "(1) A declaration by way of application for judicial review that no asylum applications in relation to the applicants are in existence;

(2) A declaration by way of an application for judicial review that a valid application for family reunification and/or residency has been made by the applicants;

(3) An order of certiorari by way of an application for judicial review that the decisions of the first named respondent refusing to regard the perceived asylum applications of the applicants as being valid and/or withdrawn, and maintaining that the mother and next friend of the applicants 'would have no claim to family reunification' and notified to the applicants not earlier than 17 ^th February 2008;

(4) An order of mandamus by way of an application for judicial review directing the first named respondent to receive, consider and determine the family reunification and/or residency applications made in relation to the applicants."

11 11. As indicated by the title to the proceeding, it was initiated also against the Tribunal and the Minister and leave was to be sought for an injunction by way of judicial review restraining those parties from acting upon the recommendation in the s. 13 report pending the determination of the proceeding.

12 12. Amongst the grounds to be advanced was the argument that the Commissioner had acted ultra vires and contrary to fair procedures in determining the applicants' application on the basis of their being applications for asylum:- "The mother and next friend of the applicants at all times followed the instructions of the Commissioner in the belief that the applications related only to the regularisation of the applicants within the State by way of family reunification or residency."

13 13. The motion to seek leave duly came into the asylum list in the Court and subsequently entered the list of cases for which dates were to be fixed. It was so listed in July 2008 and then in July of the following year.

14 14. In July 2009 the list of some 800 cases awaiting hearing before the Court included approximately 300 in which leave was to be sought to challenge reports made by the Refugee Applications Commissioner. Following the delivery by the Supreme Court of its judgment in the Kayode case (Unreported, 28 ^th January, 2009) and a number of further judgments subsequently delivered by the High Court, the Court considered that the law had been sufficiently clarified on the issue as to the circumstances which would justify its intervention by judicial review in such claims. In July 2009 directions were given by the Court to the effect that, in the light of that jurisprudence, solicitors for applicants who considered that pending cases against the RAC fell outside the conditions thus settled and should still proceed, should write to the Chief State Solicitors Office identifying those cases. An indication had been given by the Minister that in cases which were withdrawn upon the basis that they could no longer be maintained in the light of that case law, no costs would be sought against the applicants. Where cases were to proceed, the legal representatives of the applicants in question were directed to certify the issues to be considered which fell outside the case law and to furnish that certificate to the Chief State Solicitor.

15 15. The present proceeding was one which was not withdrawn in...