Sherzad v Minister for Justice and Equality
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 24 May 2017 |
| Neutral Citation | [2017] IEHC 329 |
| Docket Number | [2016 No. 411 J.R.] |
| Court | High Court |
| Date | 24 May 2017 |
[2017] IEHC 329
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[2016 No. 411 J.R.]
Asylum, Immigration & Nationality – S. 5 (3) (a) of the Illegal Immigrants (Trafficking) Act 2000 (as amended) – Leave to appeal to the Court of Appeal – The Refugee Act 1996 – Points of law of exceptional public importance
Facts: The applicant sought leave to file an appeal to the Court of Appeal. The asserted point of law of exceptional public importance by the applicant was in relation to the obligation of the respondent to give reasoned decisions for refusing the applicant's application under s. 17(7) of the Refugee Act 1996. The applicant formulated the question as to whether the respondent's mandate to give reasons was discharged by making a statement that the respondent had considered the relevant material in detail.
Ms. Justice O'Regan refused to grant leave to the applicant. The Court held that the relevant case law cited by the applicant did not demonstrate a lack of conflict between various High Court decisions pertaining to the asserted point of law.
The above applicant is seeking leave to appeal to the Court of Appeal pursuant to the provisions of s. 5 (3) (a) of the Illegal Immigrants (Trafficking) Act 2000.
The asserted point of law of exceptional public importance and desirable in the public interest that an appeal should be taken is as follows:-
‘Whether were relevant material has been submitted by an applicant in support of an application seeking leave pursuant to s. 17 (7) of the Refugee Act 1996, as amended, to bring a further protection application, the respondent's obligation to give reasons for a decision refusing leave is sufficiently discharged by a statement that she has considered the material submitted by the applicant and a finding that the applicant has failed to satisfy the statutorily prescribed criteria without providing any reasons as to why, in the respondent's view, the material relied upon failed to do so.’
The above application was heard by the Court on 26th April, 2017. Submissions have been filed on behalf of the applicant dated 22nd March, 2017 and the respondent in resisting the application for leave has filed submissions bearing date 6th April, 2017.
Section 5 (3) (a) of the Illegal Immigrants (Trafficking) Act (2000) provides:-
‘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 [Court of Appeal] 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 [Court of Appeal].’
In the matter of Glancré v. An Bord Pleanala [2006] IEHC 250 MacMenamin J. in the High Court identified the following applicable provisions to the question of whether or not certification should be granted. Notwithstanding that the matter before MacMenamin J. was a planning issue nevertheless the principles so identified relate to comparable provisions as that contained in s. 5 (3) (a) of the 2000 Act aforesaid. These identified principles are as follows:-
‘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 the 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.
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.’
In a subsequent decision of Cooke J. in I.R. v. Minister for Justice, Equality and Law Reform [2009] IEHC 510 Cooke J. at para. 6 of his judgment identified the principles, for the purpose of a certification for appeal, applicable to asylum issues as follows:-
‘6. So far as relevant to the present application the principles identified in that case law include, inter alia, the following:
It is not enough that the case raises a point of law: it must be one of exceptional importance;
The jurisdiction to grant a certificate must be exercised sparingly;
The area of law involved must be uncertain such that it is in the common good that the uncertainty be resolved for the benefit of future cases;
The uncertainty as to the point of law must be genuine and not merely a difficulty in predicting the outcome of the proposed appeal or in appraising the strength of the appellant's arguments;
The point of law must arise out of the court's decision and not merely out of some discussion at the hearing;
The requirements of exceptional public importance and the desirability of an appeal in the public interest are...
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