RA v Refugee Appeals Tribunal [No 3]

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 November 2016
• Neutral Citation: [2016] IEHC 671
• Docket Number: [2011 No. 1186 J.R.]
• Court: High Court
• Date: 21 November 2016

[2016] IEHC 671

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2011 No. 1186 J.R.]

IN THE MATTER OF THE REFUGEE ACT 1996, AS AMENDED

IN THE MATTER OF THE IMMIGRATION ACT 1999 AND

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

R. A.

APPLICANT

AND

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

AND

IRELAND

RESPONDENTS

(No. 3)

Asylum, Immigration & Nationality – S. 5 of the Illegal Immigrants (Trafficking) Act, 2000 – Leave to cross-appeal to the Court of Appeal – Costs order – Public interest

Facts: Following the refusal of the applicant's application for judicial review by the High Court and then the grant of certificate to appeal to the Court of Appeal against that refusal, the respondent now sought leave to cross-appeal the order of costs made in favour of the applicant by the High Court.

Mr. Justice Richard Humphreys granted leave to the respondent to cross-appeal the order of the High Court in relation to the award of costs of the substantive proceedings in favour of the applicant. The Court observed that though the law was well-settled that the costs should follow the event; however, there were substantial grounds to assert that the High Court wrongly applied the law while awarding the costs to the applicant. The Court opined that it would be beneficial for the general public that the issue must be resolved by way of the proposed cross-appeal.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of November, 2016

1 In R.A. v. Refugee Appeal Tribunal (No. 1) [2015] IEHC 686 (Unreported, High Court, 4th November, 2015) I refused the applicant's application for judicial review of a decision of the Tribunal rejecting his asylum claim. In R.A. v. Refugee Appeal Tribunal (No. 2) [2015] IEHC 830 (Unreported, High Court, 21st December 2015), I gave the applicant leave to appeal that decision and certified that the decision of the court involved a point of law of exceptional public importance. In addition, I awarded the applicant costs of the proceedings in the particular circumstances of the case.

2 The latter decision was given on 21st December, 2015. On 6th October, 2016, Ms. Cindy Carroll B.L. for the respondents applied for leave to cross-appeal the costs issue. I heard that application on 7th October, 2016, and also heard from Mr. Mark de Blacam S.C. in opposition to the application.

3 The application was triggered by Ms. Carroll becoming aware of my decision in K.R.A. v. Minister for Justice and Equality (No. 3) (Unreported, High Court, 3rd October, 2016), in which I upheld the State's submission that leave to cross-appeal a costs order was required under s. 5 of the Illegal Immigrants (Trafficking) Act 2000. On being notified by the C.S.S.O. of that decision, Ms. Carroll acted promptly in making the present application.

Does the decision on costs itself involve a point of law of exceptional public importance?

4 Ms. Carroll made the application primarily on the basis that the decision on costs itself involved a point of law of exceptional public importance, and suggested that future applicants might read the decision in R.A. (No. 2) as giving them a high degree of comfort in the event of proceedings being unsuccessful.

5 However Ms. Carroll's submissions did not specifically identify a precise question of law alleged to arise in relation to costs. It seems to me that rather the position is as Mr. de Blacam submits that the law in this area is in fact clear. The default position is that costs follow the event ( Dunne v. Minister for the Environment Heritage and Local Government [2008] 2 I.R.775) but that if having regard to all the circumstances of the case there is ' sufficient reason' to do so, the court may depart from that general rule (per Murray C.J. at p. 780). The existence of a point of law of public importance has been recognised as one of the circumstances that can be taken into account, as set out in the decisions cited at paras. 16 and 17 of R.A. (No. 2). In exercising my discretion in favour of the applicant I made clear that the element of there being a question of public importance, by reason of a conflict of High Court jurisprudence for which the applicant cannot be held responsible, as well as the other aspects of the case, were matters that could legitimately be considered and were not ones that necessarily required a departure, or any particular departure, from the general rule (para. 22). The judgment identifies fifteen factors militating in favour of a significant departure from the general rule in this particular case (para. 21). It seems to me that the most the respondents can say about the decision is to argue that it is an incorrect application...