S.F.A. v Minister for Justice

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 25 April 2016
• Neutral Citation: [2016] IEHC 222
• Date: 25 April 2016
• Docket Number: [2011 No. 729 J.R.]

[2016] IEHC 222

THE HIGH COURT

JUDICIAL REVIEW

Mac Eochaidh J.

[2011 No. 729 J.R.]

BETWEEN

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

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER, IRELAND

AND

THE ATTRONEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – S. 5(3) of the Illegal Immigrants (Trafficking) Act, 2000 – Nationality – Art. 267 Treaty on the Functioning of the European Union (TEFU) – Leave to appeal – Exceptional public importance

Facts: Following the dismissal of an application for judicial review by the High Court, the applicants now sought a certificate to appeal to the Court of Appeal or in the alternative, an order for reference to the Court of Justice of the European Union (C.J.E.U.). The applicants raised various contentions, such as the right of a minor to be heard in mother's claim and extent of consideration of country of origin information, and breach of charter of Fundamental Rights of the European Union, which formed the basis to seek the certificate to appeal.

Mr. Justice Colm Mac Eochaidh refused to grant the desired reliefs to the applicants. The Court held that the jurisdiction to certify cases must be exercised sparingly in cases involving points of law of exceptional public importance, which were fraught with legal uncertainty whose resolution was needed to benefit the public at large. The Court found that the main contention advanced by the applicants that a minor possessed the right to be heard in relation to his mother's claim was not novel as a dependent minor had no independent claim than that of his mother. The Court opined that a national court might refer a question to the C.J.E.U if the said court needed assistance on the interpretation of the European law and that no such assistance was required in the present case. The Court found that a decision-maker was not bound to consider all the available information relating to the country of origin. The Court held that the issues raised by the applicants had already been settled by the Courts of Law and nothing new was going to be achieved by re-litigating the same issues.

JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 25th day of April, 2016.

Introduction:

1 The court delivered judgment in S.F.A. (an infant suing by his mother and next friend A.A.) & A.A. v. Minister for Justice and Equality [2015] I.E.H.C. 364, dated the 16th June, 2015, and declined the application made for judicial review. The background facts and the legal principles may be found in the text of the judgment itself.

2 The applicants now seek a certificate to appeal pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000. The applicants say a preliminary reference to the Court of Justice of the European Union (C.J.E.U.), pursuant to Art. 267 of the Treaty on the Functioning of the European Union (T.F.E.U.), is required if the court is minded to refuse a certificate of appeal. It is accepted that a court about to refuse such a certificate is a court within the meaning of Art. 267(3) and must in certain circumstances refer questions to the C.J.E.U.. A question of E.U. law could only be referred to Luxembourg in that context if an answer to the question was required to determine whether to grant a certificate of appeal.

Certificate of appeal:

3 The applicants submit that the court should grant a certificate to appeal on the following points of law:-

1. Whether an error as to jurisdiction (assuming no reliance on error on the face of the record) must be identified before certiorari is available in respect of a challenge to the validity of a decision of the Refugee Applications Commissioner.

2. Whether the minimum standards mandated by European law were breached as a result of the manner in which the application was dealt with by the second respondent.

3. Whether the infant applicant has a right to be heard in respect of his mother's claim, when the decision in his mother's case is utilised against his interests.

4. Whether the mis-description of the second applicant's evidence should have entitled the applicants to certiorari.

5. Whether the obligation to examine up to date and relevant country of origin information relating, inter alia, to ‘laws and regulations of the country of origin and the manner in which they are applied’ is a mandatory requirement under European law (art. 4(3)(a) Qualification Directive) and has application in the applicants' claims.

6. Whether the findings in relation to internal relocation were in error. Whether the obligation to identify a place of relocation was complied with to the extent required by the minimum standards.

7. Whether the ‘B.N.N.’ restrictions on access to judicial review in respect of decisions of O.R.A.C. infringe E.U. law.

Relevant Law:

4 Section 5(3) of the Illegal Immigrants (Trafficking) Act, 2000, is in the following terms:-

‘(a)The determination of the High Court of an application for leave to apply for judicial review as aforesaid or of an application for such judicial review shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case except with the leave of the High Court which leave shall only be granted where the High Court certifies that its decision 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.

(b) This subsection shall not apply to a determination of the High Court in so far as it involves a question as to the validity of any law having regard to the provisions of the Constitution.’

5 Article 267 T.F.E.U. is set out as follows:-

‘The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:

(a) the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.’

6 In Glancré Teoranta v. An Bord Pleanála [2006] I.E.H.C. 250 MacMenamin J. set out the following principles as applicable in relation to the meaning of a test of exceptional public importance:-

‘1. The requirement goes substantially further than that a point of law emerges in or from the case. It must be one of exceptional importance being a clear and significant additional requirement.

2. The jurisdiction to certify such a case must be exercised sparingly.

3. The law in question stands in a state of uncertainty. It is for the common good that such law be clarified so as to enable the courts to administer that law not only in the instant, but in future such cases.

4. Where leave is refused in an application for judicial review i.e. in circumstances where substantial grounds have not been established a question may arise as to whether, logically, the same material can constitute a point of law of exceptional public importance such as to justify certification for an appeal to the Supreme Court (Kenny).

5. The point of law must arise out of the decision of the High Court and not from discussion or consideration of a point of law during the hearing.

6. The requirements regarding “exceptional public importance” and “desirable in the public interest” are cumulative requirements which although they may overlap, to some extent require separate consideration by the court (Raiu).

7. The appropriate test is not simply whether the point of law transcends the individual facts of the case since such an interpretation would not take into account the use of the word “exceptional.”

8. Normal statutory rules of construction apply which mean inter alia that “exceptional” must be given its normal meaning.

9. “Uncertainty” cannot be “imputed” to the law by an applicant simply by raising a question as to the point of law. Rather the authorities appear to indicate that the uncertainty must arise over and above this, for example in the daily operation of the law in question.

10. Some affirmative public benefit from an appeal must be identified. This would suggest a requirement that a point to be certified be such that it is likely to resolve other cases.’ (emphasis in original)

Article 267 T.F.E.U. reference:

7 The applicants submit that a preliminary reference under Art. 267 T.F.E.U should be made in the following terms:-

‘1. Must limitations on the right of access to the High Court to challenge the legality of decisions of the Refugee Applications Commissioner refusing asylum have a legislative basis in order to comply with Article 52 (1) of the Charter of Fundamental Rights of the European Union?

If the answer to question 1 is ‘No’ then must there be such a statutory basis where, already, some restrictions on such access have been imposed by statute?

2. Does European law preclude there being in place a national law whereby, except in “rare and exceptional circumstances” an applicant for international protection may never have an opportunity to challenge the legality (as opposed to the merits) of a negative first instance decision on an asylum application?

3. To what extent, if any, is a...