S.O. v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 821
• Docket Number: [2011 No. 699 J.R.]
• Court: High Court
• Date: 21 December 2015

BETWEEN

S.O.

APPLICANT

AND

MINISTER FOR JUSTICE AND EQUALITY,

REFUGEE APPLICATIONS COMMISSIONER, IRELAND AND

ATTORNEY GENERAL

RESPONDENTS

(No. 1)

[2015] IEHC 821

[2011 No. 699 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S. 13(6) of the Refugee Act 1996 – Deprivation of oral hearing – Appeal against the recommendation of the Refugee Applications Commissioner – Fair procedures

Facts: The applicant by way of judicial review had challenged the recommendation of the second named respondent refusing the claim of the applicant for asylum and making a finding under s. 13(6) of the Refugee Act 1996.

Mr. Justice Richard Humphreys granted liberty to the applicant to amend her statement of claim and directed that the respondents should file a statement of opposition within 21 days of receipt of the statement of claim and the matter would be concluded in relation to the non-constitutional issues. The Court reserved the order for costs. The Court held that the criteria to determine whether to allow amendment on substantial grounds were arguability, explanations for amendments, and lack of irremediable prejudice to the opposite party. The Court held that before allowing any amendment, the Court must be satisfied that the amendment sought to challenge s. 13 (6) of the said Act was not arguable. The Court found that the applicant had sufficiently explained the need for the required amendments and no irremediable prejudice was likely to happen to the respondents.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of December, 2015

1 The applicant claims to have experienced persecution in her country of origin, Nigeria, commencing when her husband died on 10th July, 2009.

2 She arrived in the State on 24th October, 2010, but did not apply for asylum until 7th April, 2011.

3 The Refugee Applications Commissioner made a recommendation to refuse her application for asylum on 30th June, 2011, a decision which she received on 19th July, 2011.

4 In rejecting the application, the Refugee Applications Commissioner included findings under s. 13(6) of the Refugee Act 1996, based, not on a finding of a minimal basis for her claim, but rather on the ground that she has not made the application as soon as reasonably practicable. The effect of that finding is that the applicant will be deprived of an oral hearing of her appeal to the Refugee Appeals Tribunal. That fact makes it legitimate and appropriate for the applicant to seek judicial review of the Commissioner's decision at this stage, rather than following the more usual route of appealing to the Refugee Appeals Tribunal before seeking judicial review (see B.N.N. v. Refugee Applications Commissioner [2009] 1 I.R. 719 (Hedigan J.)).

5 In the course of the hearing of the application, Mr. Paul O'Shea B.L. for the applicant made a submission to me that there was a particular unfairness impacting upon his client, who was a person who had simply delayed in making an asylum application, and was therefore subject to s. 13(6)(c) of the Act, as opposed to a person whose claim was manifestly unfounded and therefore within the Supreme Court decision in V.Z. v. Minister for Justice, Equality and Law Reform [2002] 2 I.R. 135, being a claim with no or minimal basis, which could be the subject of a finding under s. 13(6)(a).

6 Furthermore, it was submitted that it was unfair that such a person would be required to prosecute an appeal before the Tribunal on the papers in circumstances where the Tribunal had no jurisdiction to revisit the s. 13(6) findings and to direct that there should be an oral hearing of its own motion. In short, the Tribunal is hamstrung from providing what he contends are appropriate fair procedures for his client, because of a prior determination by another body, the Commissioner.

7 In the course of exchanges with him in connection with the foregoing submission, I asked Mr. O'Shea in effect whether the consequence of his submission that Tribunal was unable to direct an oral hearing even if it considered that such a hearing was required in the interest of justice was something which arose out of the legislation, and if so whether his complaint was with that legislation, as opposed to simply the Commissioner's decision. Upon reflecting on that question, Mr. O'Shea sought to apply to amend his proceedings in order to take issue with the legislation as a matter of EU and constitutional law. It is that application to amend which I address in the present judgment.

8 Mr. Oisin Quinn, S.C., who appears (with Mr. Nap Keeling B.L.) for the respondents, opposes the application to amend on various grounds. However, he has expressly and very fairly accepted that the court asking Mr. O'Shea whether the logical consequence of his complaint is, in effect, to take issue with the legislation, is not any form of prejudgment on the part of the court as to whether an amendment should be made, still less whether any complaint in relation to the validity of the legislation has substance.

9 This is an important point. The teasing out of the logical consequences of a proposition is a core element of any reasoning process or intellectual inquiry. Anything the court says in the course of a hearing must be construed as a question and not as the expression of a view. A court is perfectly entitled to ask a party if the logical consequence of proposition X is proposition Y, or even if a party wishes to advance a further or alternative proposition Z. A court is also entitled to suggest to a party that the particular argument it is making is not encompassed by, or alternatively not fully particularised in, pleadings. In the course of a leave application, for example, this may frequently take the form of a dialogue between bench and bar as to what the appropriate wording is to encompass the complaint actually being made. As frequently as not, this involves a reduction or deletion of surplus grounds (see the issues raised in my judgment in O'Mahony Developments Ltd. v. An Bord Pleanala [2015] IEHC 757 at para. 51), but just as legitimately it may involve raising a question as to whether the applicant wishes to add to the grounds if they do not already fully capture the point being made, or its logical consequences, or even some further point which is latent in the facts and matters pleaded. Such a question is not an encouragement, and should not be taken as an encouragement, to that party to advance further propositions, still less to seek an amendment to his or her pleadings for that purpose. That is a matter for decision and application by the party concerned.

10 It is well established that if there are points latent in a case that neither party has identified, it is fully within the legitimate scope of the judicial power to draw attention to such points. For example, in T.D. v. Minister for Justice, Equality and Law Reform [2014] IESC 29, the Supreme Court noted without apparent disapproval (see judgment of Fennelly J. at para. 2) that Hogan J. had, of his own motion, taken a point as to the validity of s. 5(2) of the Illegal Immigrants (Trafficking) Act 2000 in terms of EU law. However, I would be inclined to the view that in general it is...