RS v The Chief International Protection Officer

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 19 October 2018
• Neutral Citation: [2018] IECA 322
• Date: 19 October 2018
• Docket Number: Neutral Citation Number: [2018] IECA 322 Record Number: 2018 No. 380

BETWEEN:

RS

APPLICANT/APPELLANT

- AND -

THE CHIEF INTERNATIONAL PROTECTION OFFICER

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

- AND -

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL

NOTICE PARTY

[2018] IECA 322

Neutral Citation Number: [2018] IECA 322

Record Number: 2018 No. 380

THE COURT OF APPEAL

Asylum & immigration – Application for declarations of refugee status and subsidiary protection – Refusal of declarations – Leave to seek judicial review – Stay of substantive appeal

Facts: The appellant had applied for declarations of refugee status and subsidiary protection. The application had been refused, and he sought leave to bring judicial review of the refusal. However, the trial judge had refused a stay on the hearing of his appeal before the International Protection Appeals Tribunal. He now sought to appeal the refusal to grant a stay.

Held by Peart J, that the appeal would be allowed. The Court was persuaded that the balance of justice lay in granting the appellant the stay he sought in circumstances where a similar test case had been stayed, even allowing for the disruption caused to the statutory scheme as a result. Okunade v Minister for Justice [2012] 3 IR 152 considered.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 19TH DAY OF OCTOBER 2018

1 RS is an Algerian national whose application for a declaration of refugee status and for a subsidiary protection declaration has been the subject of an adverse recommendation made under s. 39(3)(c) of the International Protection Act 2015. These decisions were notified to him by letter dated the 21st May 2018, as was the Minister's decision not to grant him leave to remain in the State.

2 On the 6th June 2018 RS lodged an appeal against the adverse subsidiary protection recommendation with the International Protection Appeals Tribunal (IPAT), but on the basis that it was without prejudice to his contention, as set out in the statement of grounds on foot of which he sought leave to bring judicial review proceedings, namely those set forth at para. (f) thereof and its 6 sub- paragraphs.

3 Briefly stated, RS contends for the purposes of his judicial review proceedings that no lawful examination of his subsidiary protection application has been carried out by the Chief International Protection Officer, within the meaning of s. 34 and s. 39 of the 2015 Act, and further that there has been no lawful consideration of his application for permission to remain in the State by the Minister within the meaning of s. 49 of the 2015 act.

4 In that regard, RS contends essentially that the person who carried out the consideration and examination of his applications has been engaged under a contract for services, and accordingly that these exercises have not been carried out in accordance with law.

5 The appeal which RS has lodged against the subsidiary protection recommendation to the IPAT is scheduled to be heard on Monday next, the 22nd October 2018. He does not want to have his appeal heard and determined until such time as what has been described as a "test case" has been determined, in which the same issues as are raised by him in his judicial review proceedings have been determined. He fears that if his appeal proceeds prior to such determination, and his appeal does not succeed before the IPAT, his own judicial review proceedings would thereafter be moot. In other words, it would be too late to seek to quash the consideration and examination of his applications which were carried out at first instance by a contractor. The refusal to grant a stay/injunction restraining the hearing of his appeal to the IPAT pending the determination of the test case would have the result that he is deprived of his constitutional right of access to the courts and to litigate the issues that he seeks to argue.

6 While a stay/injunction was granted to the applicant in the test case in respect of his appeal to the IPAT pending the determination of his judicial review proceedings, the trial judge in a written judgement has stated that 'in all of the other cases I will refuse the relief by way of a stay or injunction that has been sought'. It is this refusal by the trial judge to stay RS's appeal to the IPAT pending the determination of his judicial review proceedings that is the subject of the present appeal.

7 In his judgment refusing to restrain the IPAT from hearing and determining the appeal of RS and other applicants for judicial review in respect of whom leave has been granted, save the applicant in the test case, the trial judge described the judicial review proceedings as raising what he said were 'a technical objection' in relation to the use by the International Protection Office of contractors in making recommendations under the 2015 Act. He referred to the fact that in a case of I.G. he had refused to grant leave to seek a judicial review grounded upon this technical point since he considered it to be 'insubstantial'. The relevant threshold before leave can be granted is that substantial grounds must be shown to exist for contending that the decision is invalid and ought to be quashed, as provided by s. 5(2)(b) of the Illegal Immigrants (Trafficking) Act, 2000.

8 That refusal of leave to seek judicial review in I.G. was the subject of an appeal to the Supreme Court. The trial judge had in fact refused leave to appeal in I.G. However, on a so-called "leap-frog" appeal from that refusal, the Supreme Court granted leave to appeal.

9 The Supreme Court heard a number of such appeals together, and for the reasons stated by Dunne J. in her judgment delivered on 16th May 2018 ( [2018] IESC 25) the Court decided that the various applicants had raised substantial grounds for the purposes of s. 5(2)(b) of the 2000 Act, and granted leave accordingly.

10 It is not necessary to dwell upon the judgment of Dunne J. in any detail. The relevant and important feature of it for present purposes is simply that the grounds sought to be relied upon in the present proceedings by RS have been considered by the Supreme Court to overcome the "substantial grounds" test for argue ability, namely that they are, as referred to by Denham J. (as she then was) in Meadows v. Minister for Justice [2010] 2 I.R.701 'reasonable, arguable, and weighty, with the added proviso that they must not be trivial or tenuous'.

11 In his written judgment refusing to stay/injunct all other appeals, delivered on 10th September 2018 ( [2018] IEHC 499) the trial judge stated at para. 3:

'3. What is sought by the applicants in each of the cases is in essence an order, whether phrased as a stay or an injunction or otherwise, which would have the effect of preventing the tribunal from processing their appeals further. Mr Haynes and Mr O'Shea essentially rely on the balance of convenience and justice. Ms Butler, appearing for the respondents and the tribunal, drew certain matters to the court's attention material to that assessment. To facilitate that being done, in the course of the hearing I added the International Protection Appeals Tribunal as a notice party in all six cases.'

12 The trial Judge then proceeded to outline what he considered to be the major factors relevant to the balance of convenience and justice, as follows:

'(i) The harm to the applicants by the refusal of a stay because their challenges might become moot. That is certainly a factor that I need to take into account but balancing that is the fact that their complaints are purely technical and no particular harm to the applicants (beyond the speculative) has been demonstrated by the use of contractors.

(ii) There is a benefit to the applicants in the appeals going ahead because the IPAT will then be able to carry out its function of processing them expeditiously and the appeals will not be held up for many months or possibly even years depending on the procedural steps that will follow.

(iii) Refusing a stay provides a benefit to the legal system and the people of Ireland because it permits the protection process to work in a manner envisaged by the Oireachtas. I would have a significant concern as to the impact of a whole wave of purely technical challenges, of which there are at least 40 at the present time, holding up the working of the protection system. The system is certainly in danger of logjam if applications are frozen at the end of the initial stage and cannot proceed to the appellate stage, where they will benefit from a full rehearing if unsuccessful initially.

(iv) Then there is the benefit for the tribunal itself, which can organise and carry out its statutory mission if there is no stay. It is clear from the judgment of MacEochaidh J. in H.T.K. v. Minister for Justice and Equality [2016] IEHC 43 (Unreported, High Court, 15th January, 2016) that the tribunal is obliged to process any appeal made to it in the absence of any court order to the contrary.

(v) It seems to me that Ms. Butler's concern is well founded when she submits that if stays are routinely granted preventing the processing of appeals against IPO recommendations on purely technical points, such as those in the present cases, then the tribunal will be prevented from doing its job in a significant number of cases. Ms. Butler has informed me that there are one or two requests every day from applicants to adjourn hearings because they wish to litigate the technical point at issue in these proceedings. Ms. Butler also informs me that the tribunal is in a position to consider and conduct hearings in appeals that are taken to it within a relatively short period of months from the appeals being lodged. A situation that prevailed some time ago where there were long delays in hearing appeals has now been cleared.

(vi) A further and related point is that to grant stays in cases of this nature would inherently create a backlog because all of those cases would then come on stream for consideration...