A (S F)(an Infant) & A (A) v Min for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 16 June 2015
• Neutral Citation: [2015] IEHC 364
• Court: High Court
• Date: 16 June 2015

[2015] IEHC 364

THE HIGH COURT

[No. 729 JR/2011]

A (S F)(An Infant) & A (A) v Min for Justice & Ors

JUDICIAL REVIEW

No Redaction Needed

BETWEEN

S. F. A. (AN INFANT SUING BY HIS MOTHER AND NEXT FRIEND A. A.) & A. A.

APPLICANTS

AND

MINISTER FOR JUSTICE AND EQUALITY, THE REFUGEE APPLICATIONS COMMISSIONER, IRELAND & THE ATTORNEY GENERAL

RESPONDENTS

Asylum – Immigration & Nationality – The Refugee Applications Commissioner – Refusal of asylum claim – Fear of persecution – Jurisdictional error – Art. 8(2) of Council Directive (2004/83/EC) – Internal relocation

Facts: The applicants sought two orders by way of certiorari quashing the two separate decisions of the second named respondent rejecting the asylum claims of the applicants. The second named applicant being the mother of the first named applicant alleged fear of persecution from the family of the father of the first named applicant. The second named applicant contended that the second named respondent had committed jurisdictional errors by misstating facts.

Mr. Justice Mac Eochaidh refused to grant orders of certiorari to the applicants. The Court held that since the second named applicant had been separated from the father of the first named applicant, her fears of persecution were not well founded. The Court found that the second named respondent had acted within jurisdiction though it had misstated part of the evidence of the second named applicant. The Court found that not all the errors were deemed to be jurisdictional warranting an order of certiorari and any irregularity in the decision must be grave and apparent on the face of it. The Court observed that art. 8(2) of Council Directive (2004/83/EC)] clearly specified that an assessment of internal relocation would be mandatory keeping in lieu the circumstances of the case. The Court held that since the second named applicant's fears were localized and she being well educated and a businesswoman, internal relocation would be a viable option for her.

Introduction

1 1. By notice of motion of 3 ^rd October, 2011, the applicants sought two orders of certiorari in respect of separate decisions made by the second named respondent on their asylum claims.

2 lm 2. In a recent decision of this court entitled P.D. v. The Minister for Justice & Law Reform, The Refugee Applications Commissioner, Ireland & The Attorney General [2015] I.E.H.C. 111 principles governing the appropriateness of judicial review of decisions of the Refugee Applications Commissioner were stated as follows, at para. 39 of the judgment:-

2 "1. The High Court is entitled to grant certiorari or other public law remedy in respect of a decision of the Refugee Applications Commissioner where an error as to jurisdiction is identified.

2 The significance of the error will determine whether the court may exercise its discretion to grant judicial review.

3 Not all errors as to jurisdiction attract judicial review.

4 The court must carefully consider the nature of the error in deciding whether the interests of justice require the first instance decision to be quashed and taken again rather than the error being the subject of an appeal to the Refugee Appeals Tribunal.

5 The court should bear in mind the extent of the Refugee Appeals Tribunal's capacity to provide a remedy and reverse the error (The nature of appeals to the R.A.T. has recently been fully described by Charleton J. in the Supreme Court in M.A.R.A. [Nigeria (Infant) v. The Minister for Justice & Equality & Ireland [ [2014] I.E.S.C. 71])."

Those principles derive in part from a consideration of the dicta of Denham J. (as she then was) in Stefan v. The Minister for Justice, Equality & Law Reform [2001] 4 I.R. 203. The learned judge, having reviewed the authorities on whether judicial review should lie in circumstances where an administrative appeal was available, said at p. 217:-

" Certiorari may be granted where the decision maker acted in breach of fair procedures. Once it is determined that an order of certiorari may be granted, the court retains a discretion in all the circumstances of the case as to whether an order of certiorari should issue. In considering all the circumstances, matters including the existence of an alternative remedy, the conduct of the applicant, the merits of the application, the consequences to the applicant if an order of certiorari is not granted and the degree of fairness of the procedures, should be weighed by the court in determining whether certiorari is the appropriate remedy to attain a just result."

3 3. In P.D. (supra) I determined that the comprehensive failure of the R.A.C. to identify, much less assess, a very significant part of the applicant's claim for asylum was sufficient error to attract certiorari.

4 4. Having regard to the decision of this court in P.D. and the line of authority on which it is based, an applicant seeking to review a decision of the R.A.C. must identify an error as to jurisdiction (assuming no reliance on error on the face of the record) though this alone will not suffice to attract certiorari.

5 5. Decisions of the Supreme Court and of the High Court assist with the somewhat vexed question as to what is an error as to jurisdiction.

6 6. In Killeen v. D.P.P. [1997] I.R. 218 a District Judge had decided that a defect in a warrant had precluded him from sending accused persons forward for trial. The Supreme Court held that his understanding of the law was erroneous and that his order discharging the accused persons was made without jurisdiction.

7 7. Keane J. made reference to the decision in R (Martin) v. Mahony [1910] 2 I.R. 695 and in particular to the judgment of O'Brien L.C.J.. That case concerned an application for an order of certiorari quashing a conviction on a charge of operating a betting house. The parties in that case agreed that there was insufficient evidence to support the conviction. Interestingly, the dispute in the case is similar to the legal dispute which has arisen in these proceedings. O'Brien L.C.J., said, at p. 704:-

"In the first instance, I am very anxious to point out what the question before us is, and what it is not. The controversy before us does not involve the question whether there is any remedy if a magisterial tribunal makes a mistake; that is not the question. The question here is whether the proper remedy is sought, and not whether there is no remedy. In this case it was open to the defendant in the summons to appeal to the Recorder of Dublin, before whom the whole controversy on the law and the merits could be exhaustively treated. It was competent also for the accused to get a case stated for High Court, where the question involved could be authoritatively determined…This is an elementary matter which cannot be gainsaid. But the question here is whether the defendant, having omitted to pursue a course that was obvious and patent, can have recourse to another method of challenging an adverse decision; whether, in fact, he can challenge by way of certiorari what it was most undoubtedly, indeed ex concessis, open to him to challenge by way of appeal or by case stated. If an accused person departs from the beaten path, the via trita of our law, and finds himself impeded, fails to attain his object by reason of his having adopted an abnormal course, he must blame himself and not the law; indeed, in this particular instance, there is the less excuse for going wrong, as, not withstanding the warning given by the difference of opinion between the Court of Queen's Bench and the Court of Exchequer, the authorised, the accustomed remedy for the detection and correction of error, if it existed, was not pursued. Unacquaintance with legal methods cannot help or excuse the errors of litigants. If we were to allow such an excuse to prevail, we should ignore one of the most familiar maxims of the law and create a welter of confusion."

8 8. From this passage one can see the historic roots of the modern Irish jurisprudence which promotes statutory appeals and limits resort to judicial review where such appeals are available.

9 9. O'Brien L.C.J. went on and said:-

"What, then, is the question we have to determine and what is the law? The main, the all-important, question we have to determine is whether, in a case of a criminal or penal nature within the summary jurisdiction of magistrates, mere insufficiency of evidence to warrant a conviction or order destroys jurisdiction."

10 10. Noting that the argument in favour of certiorari was that the evidence before the magistrate did not authorise conviction had the affect of ousting or destroying jurisdiction, the learned judge said:-

"Want of jurisdiction is one thing; error on the face of the conviction, where the evidence is incorporated, is another."

11 11. However, the particular passage referred to by Keane J. is as follows at p. 707 of The King (Martin) v. Mahony and at p. 226 of Killeen:-

"To grant certiorari merely on the ground of want of jurisdiction, because there was no evidence to warrant a conviction, confounds…want of jurisdiction with error in the exercise of it. The contention that mere want of evidence to authorise a conviction creates a cesser of jurisdiction, involves, in my opinion, the unsustainable proposition that a magistrate has…jurisdiction only to go right; and that, though he had jurisdiction to enter upon an inquiry, mere miscarriage in drawing an unwarrantable conclusion from the evidence, such as it was, makes the magistrate act without and in excess of jurisdiction."

12 12. O'Brien L.C.J. usefully, in my opinion, makes further comment on the difference between "want of jurisdiction" which would attract certiorari and error in the exercise of jurisdiction, which would not. He said at p. 708:-

"As to the expression 'want of jurisdiction', I...