S (F. K.) v The Refugee Appeals Tribunal and the Minister for Justice, Equality and Law Reform :

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 26 March 2010
• Neutral Citation: [2010] IEHC 136
• Court: High Court
• Date: 26 March 2010

[2010] IEHC 136

THE HIGH COURT

[No. 1373 J.R./2008]

S (FK) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

F. K. S.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S16(10)

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

ARKLOW HOLIDAYS LTD v BORD PLEANALA & ORS UNREP CLARKE 11.1.2008 2008/2/340 2008 IEHC 2

GLENCRE TEORANTA v BORD PLEANALA UNREP MACMENAMIN 13.7.2006 2006/26/5686 2006 IEHC 250

KENNY v BORD PLEANALA (NO 2) 2001 1 IR 704 2002 1 ILRM 68 2001/13/3736

RAIU v REFUGEE APPEALS TRIBUNAL & ORS UNREP FINLAY-GEOGHEGAN 26.2.2003 2006/50/10549

R (I) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP COOKE 26.11.2009 2009 IEHC 510

REFUGEE ACT 1996 S16(11)(C)

REFUGEE ACT 1996 (APPEALS) REGS 2003 SI 424/2003 REG 9

CONSTITUTION ART 34.4.3

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S16

REFUGEE ACT 1996 S16(4)

IMMIGRATION

Asylum

Appeal - Point of law - Certificate enabling appeal to Supreme Court - Point of law of extreme public importance or desirable in public interest that appeal be taken - Whether Refugee Application Commissioner's presence required at Refugee Appeals Tribunal -Arklow Holidays v An Bord Pleanála [2008] IEHC 2, (Unrep, Clarke J, 11/2/2008); Glancré Teoranta v An Bord Pleanála [2006] IEHC 250, (Unrep, MacMenamin J, 13/7/2006); Kenny v An Bord Pleanála (No 2) [2001] 1 IR 704; RAIU v Refugee Appeals Tribunal (Unrep, Finlay Geoghegan J, 12/2/2003); R (I) v Minister for Justice Equality and Law Reform [2009] IEHC 510, (Unrep, Cooke J, 26/11/2009) considered - Refugee Act 1996 (No 17), ss 11, 13 and 16 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Refugee Act 1996 (Appeals) Regulations 2003 (SI 424/2003)- Constitution of Ireland 1937, art 34.4.3 - Relief refused (2008/1373 JR - Cooke J - 26/3/2010) [2010] IEHC 136

(S) F K v Refugee Appeals Tribunal

Facts In previous proceedings the court had held that the presence of the Commissioner or his representative at an oral hearing was not indispensable to the exercise by the Refugee Appeals Tribunal of its jurisdiction to hold an appeal hearing under section 16(10) of the Refugee Act 1996, as amended. In these proceedings the applicant sought a certificate pursuant to section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 to enable an appeal to be taken to the Supreme Court regarding a point of law. The issue sought to be raised was whether the Refugee Appeals Tribunal had the jurisdiction to proceed with the oral hearing of an appeal in the absence of the Refugee Applications Commissioner or a representative of the Commissioner.

Held by Mr. Justice Cooke in refusing to grant the certificate sought. The review by the High Court in considering issues of law raised against decisions of the Tribunal could be taken as providing sufficient legal certainty in individual cases and in the operation of the processes of the 1996 Act to obviate the need for further appeal unless the legal issue was one which not only transcended the facts of the particular case but gave rise to some point of law which had a consequence for Refugee legislation. The point in question was essentially a procedural issue which was of importance in one discrete area of law, in the operation of a particular Tribunal and affected to date only occasional cases before the Tribunal. Its incidence was not such that it affected rights generally or the validity of the asylum process as a whole.

Reporter: R.F.

1 JUDGMENT of Mr. Justice Cooke delivered on the 26th day of March, 2010.

2 1. In the judgment delivered in this matter on 2 ^nd March, 2010 the Court held that the presence of the Commissioner or his representative at an oral hearing was not indispensable to the exercise by the Refugee Appeals Tribunal of its jurisdiction to hold an appeal hearing under s. 16(10) of the Refugee Act 1996, as amended.

3 2. The applicant now applies pursuant to s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 for a certificate which would enable an appeal to the Supreme Court to be taken upon a point of law which it is proposed to formulate as follows:

"Whether the Refugee Appeals Tribunal has jurisdiction to proceed with the oral hearing of an appeal in the absence of the Refugee Applications Commissioner or a representative of the Commissioner?"

4 3. A second question was also proposed but counsel for the applicant has accepted the Courts suggestion that a question which seeks to invite the Supreme Court to define the criteria for the necessary presence of the Commissioner at such hearings would be in appropriate and beyond what is intended by the subsection. Accordingly, the issue now to be decided is whether the proposed question meets the cumulative conditions for the grant of a certificate under s. 5(3)(a) of the Act namely, that it 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".

5 4. The principles which guide the Court in approaching this issue are set out in a number of judgments both in relation to this particular provision and to similarly worded provisions in other legislation notably that of the Planning Acts. The case law in question is well known and has been referred to in the written legal submissions provided to the Court on the present application. They include in particular:

6 Arklow Holidays v. An Bord Pleanála (Unreported, High Court, Clarke J. 11 ^th February, 2008);

7 Glancré Teoranta v. An Bord Pleanála [2006] IEHC 250 ;

8 Kenny v. An Bord Pleanála (No. 2) [2001] 1 I.R. 179 ; and

9...