T.A. v The International Protection Office and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Mark Heslin
• Judgment Date: 07 July 2023
• Neutral Citation: [2023] IEHC 390
• Court: High Court
• Docket Number: [2022/1041 JR]

Between

T.A.

Applicant

and

The International Protection Office, The International Protection Appeals Tribunal, The Minister for Justice and Equality, Ireland and The Attorney General

Respondents

[2023] IEHC 390

[2022/1041 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Statutory appeal – International Protection Act 2015 s. 39 – Applicant seeking certiorari of a first instance decision – Whether the errors identified were so fundamental that the unfairness to the applicant rendered the statutory procedure for appeal to the second respondent unsuitable to meet the applicant’s complaints

Facts: The High Court (Meenan J), by order made on 19 December 2022, granted the applicant leave to apply by way of judicial review for the reliefs set out at para. (d) on the grounds set out at para. (e) of his statement of grounds dated 28 November 2022. The material reliefs sought at para. (d) of the statement comprised: (i) an order of certiorari quashing the decision of the first respondent, the International Protection Office (IPO), dated 14 September 2022, made under s. 39 of the International Protection Act 2015 communicated to the applicant by letter dated 21 October 2022; (ii) an order of certiorari quashing the decision of IPO, dated 21 October 2022, made under s. 49 of the 2015 Act, as communicated to the applicant by letter dated 21 October 2022; (iii) a stay on the second respondent, the International Protection Appeals Tribunal (IPAT), hearing the applicant’s appeal of the decision made under s. 39 of the 2015 Act pending the determination of the proceedings. The proceedings involved an application for certiorari of a first instance decision (the s. 39 decision). The applicant issued what was described as a “protective appeal” to IPAT against the s. 39 decision. When the proceedings were heard on 15 June 2023, that appeal (referred to in the third of the reliefs sought by the applicant) had not been heard or determined by IPAT. The applicant accepted that seeking judicial review of a decision by IPO without having pursued an appeal to IPAT represents an exception. However, the applicant argued that the errors identified were so fundamental that the unfairness to the applicant rendered the statutory procedure for appeal to IPAT unsuitable to meet the applicant’s complaints.

Held by Heslin J that, guided by Phelan J’s decision in ESO v IPO [2023] IEHC 197, he was not satisfied that the alleged errors were such that they deprived the decision maker of jurisdiction. It did not seem to Heslin J that the alleged errors were so fundamental as to give rise to an injustice incapable of being remedied by means of the statutory appeal to IPAT. He took the view that the applicant had not demonstrated what Phelan J described at para. 55 as “a clear and compelling case that an injustice has been done that is incapable of being remedied on appeal” to IPAT. It seemed to Heslin J that the applicant was required to proceed by way of an appeal to the IPAT and had not established that this was one of those rare exceptions where there is an entitlement to seek judicial review of a first instance decision. Even if he was wrong in that view, Heslin J held that the applicant had not established any entitlement to judicial review and that this was an application which must be dismissed.

Heslin J’s preliminary view was that, as the “entirely successful” party, the respondents were entitled to their costs (s. 169 of the Legal Services Regulation Act 2015).

Application dismissed.

JUDGMENT of Mr. Justice Mark Heslin delivered on the 7th day of July 2023

Introduction

1 . By order made on 19 December 2022 (Meenan J.) the Applicant was granted leave to apply by way of judicial review for the reliefs set out at para. [d] on the grounds set out at para. [e] of his Statement of Grounds dated 28 November 2022.

2 . The material reliefs sought at para. [d] of the aforesaid statement comprises:-

(i) An order of certiorari quashing the decision of the First-Named Respondent, dated 14 September 2022, made under s. 39 of the International Protection Act 2015 (“the 2015 Act”) communicated to the Applicant by letter dated 21 October 2022;

(ii) An order of certiorari quashing the decision of the First-Named Respondent, dated 21 October 2022, made under s. 49 of the 2015 Act, as communicated to the Applicant by letter dated 21 October 2022;

(iii) A stay on the International Protection Appeals Tribunal (“IPAT”) hearing the Applicant's appeal of the decision made under s. 39 of the 2015 Act (“the s. 39 decision”) pending the determination of these proceedings.

Submissions

3 . Before proceeding further, I want to express my thanks to Mr. Conlon S.C., for the Applicant, and to Ms. McMahon B.L. for the Respondent. Both made oral submissions with great clarity and skill. Both furnished detailed written submissions which have been of great assistance. During the course of this judgment, I will refer to the principal submissions and to those authorities which seem to me to be of most assistance in determining the matters in issue.

First instance decision

4 . As can be seen from the relief sought, the present proceedings involve an application for certiorari of a first instance decision (also referred to in this judgment as “the s. 39 decision”). The Applicant in the present case has issued what was described as a “protective appeal” to IPAT against the s.39 decision. When these proceedings were heard on 15 June 2023, that appeal (referred to in the third of the reliefs sought by the Applicant) had not been heard or determined by IPAT.

5 . The Applicant accepts that seeking judicial review of a decision by the International Protection Office (“IPO”) without having pursued an appeal to IPAT represents an exception. However, the Applicant argues that the errors identified are so fundamental that the unfairness to the Applicant renders the statutory procedure for appeal to IPAT unsuitable to meet the Applicant's complaints.

6 . I have carefully considered a range of authorities on this topic to which the court's attention was drawn [See State Abengelen Properties [1984] IR 381; Stefan v. Minister for Justice [2001] IESC 92; BNN v. Minister for Justice [2009] 1 IR 719 (at para. 45); Z v. The Minister for Justice, Equality and Law Reform [2008] IEHC 36; (at para. 8)]. These, and a range of other authorities, were given careful consideration by Phelan J. from para. 46 onwards of her 24 April 2023 decision in ESO v. IPO [2023] IEHC 197. It is sufficient for the purposes of this judgment to quote as follows from the learned judge's decision in ESO, beginning at para. 55:-

“55. From these cases, it is clear that in the normal course only a flaw which is so fundamental as to deprive the decision maker of jurisdiction is sufficient to support an application by way of judicial review. An applicant must demonstrate a clear and compelling case that an injustice has been done that is incapable of being remedied on appeal to the RAT. If such a clear and compelling case is not demonstrated, the applicant must avail of the procedure that has been set up by the Oireachtas. By way of example of cases which might be amenable to judicial review, Hedigan J. identified situations where only a partial appeal is available with the result that the injustice complained of may be incapable of being remedied on appeal.”

7 . The reference to Hedigan J. was to his judgment in BNN wherein (at para. 45) the learned judge held inter alia that:- “… it is only in very rare and limited circumstances indeed that judicial review is available in respect of an Office of the Refugee Applications Commissioner decision” and the court went on to hold that an Applicant had to demonstrate:- “ a clear and compelling case that an injustice has been done that is incapable of being remedied on appeal to the RAT”. The RAT was the predecessor of IPAT.

8 . In her decision in ESO, Phelan J went on to state the following at para. 56:-

“ 56. Subsequently, in O(F) v RAC [2009] IEHC 300, Cooke J. restated the test governing court intervention by way of judicial review where an appeal lies as follows (para. 8):-

‘only in the rare and exceptional cases where it is necessary to do so in order to rectify a material illegality in the report which is incapable of or unsuitable for rectification by appeal; which will have continuing adverse consequences for the applicant independently of the appeal; or is such that if sought to be cured by the appeal, will have the effect that the issue or that some wrongly excluded evidence involved, will not be reheard but will be examined only for the first time on the appeal’.

57. Again, in J.M. (Mhlanga) v R.A.C. [2009] IEHC 64, Cooke J. referred to the possibility of a flaw or illegality being such that a rehearing (para. 26):-‘would result in a material issue not being reheard but being heard for the first time upon the appeal’”.

9 . Guided by the foregoing principles, I am not satisfied that the alleged errors are such that they deprived the decision maker of jurisdiction. It does not seem to me that the alleged errors are so fundamental as to give rise to an injustice incapable of being remedied by means of the statutory appeal to IPAT. I take the view that the Applicant has not demonstrated what Phelan J. described at para. 55 as “ a clear and compelling case that an injustice has been done that is incapable of being remedied on appeal” to IPAT. It seems to me that the Applicant is required to proceed by way of an appeal to the IPAT and has not established that this is one of those rare exceptions where there is an entitlement to seek judicial review of a first instance decision.

10 . Lest I be entirely wrong in the foregoing views, I now proceed to consider the case made by the Applicant. Before looking at the range of legal grounds pleaded, it is appropriate to refer to...