Tiernan Salaja and Another v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 10 February 2011
• Neutral Citation: [2011] IEHC 51
• Court: High Court
• Date: 10 February 2011

Salaja (A Minor) v Min for Justice

JUDICIAL REVIEW

BETWEEN/

TIERNAN SALAJA (A MINOR SUING BY HIS FATHER AND NEXT FRIEND, EMMANUAL SALAJA) AND EMMANUEL ABIODUN SALAJA

APPLICANTS

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

[2011] IEHC 51

[No. 665 J.R./2010]

THE HIGH COURT

PRACTICE AND PROCEDURE

Dismissal of proceedings

Mootness and lack of candour - Judicial review - Preliminary motion - Whether question of refusal to grant visa to immigrant student moot - Doctrine of mootness - Principles to be applied - Lack of candour - Whether live controversy affecting or potentially affecting rights between parties - Whether appropriate for court to deal with lack of candour in judicial review case as preliminary issue - Goold v Collins [2004] IESC 38, (Unrep, SC, 12/7/2004) and O'Brien v Personal Injury Assessments Board (No 2) [2006] IESC 62, [2007] 1 IR 328 followed - Hall v Beals 396 US 45 (1969); Cahill v Sutton [1980] IR 269; DK v Crowley [2002] 2 IR 744; Clarke v Member in Charge [2001] 4 IR 171; Application of Zwann [1981] IR 395; Dunne v Governor of Cloverhill Prison [2009] IESC 43 (Unrep, SC, 21/5/2009); Fingal County Council v William P. Keeling & Sons Ltd [2005] IESC 55, [2005] 2 IR 108; State (Vozza) v District Justice O'Floinn [1957] 1 IR 227 and AGAO v Minister for Justice, Equality and Law Reform [2006] IEHC 344, [2007] 2 IR 492 considered - Motion to dismiss refused (2010/665JR - Hogan J - 10/2/2011) [2011] IEHC 51

Salaja v Minister for Justice, Equality and Law Reform

Facts: The second applicant was a Nigerian national who had been granted a study visa with appropriate stamp conditions and had later entered into a relationship with a woman from Northern Ireland and they had two children together. He sought to challenge the legality of the refusal to allow him to change the stamp conditions on account of his new family circumstances. He alleged that the refusal was in breach of his constitutional rights and in breach of the ECHR. The Minister maintained that the proceedings were moot and that the disputed application had been superseded by later applications.

Held by Hogan J. that the Court would refuse the relief sought by the Minister in the preliminary motion. The Court would express no view on the substantive proceedings. The proceedings were not moot as the second applicant had an interest in obtaining judicial determination of the proceedings. The subsequent applications did not detract from the obligation on the Minister to reconsider the applications.

Reporter: E.F.

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 24

CONSTITUTION ART 6

CONSTITUTION ART 15

CONSTITUTION ART 28

CONSTITUTION ART 34

CONSTITUTION ART 34.1

HALL v BEALS 396 US 45 (1969)

CONSTITUTION ART 26

G v COLLINS 2005 1 ILRM 1

CAHILL v SUTTON 1980 IR 269

O'BRIEN v PERSONAL INJURIES ASSESSMENT BOARD (NO.2) 2007 1 IR 328

K (D) v CROWLEY 2002 1 IR 744

DOMESTIC VIOLENCE ACT 1996 S3

CLARKE v MEMBER IN CHARGE OF TERENURE GARDA STATION 2001 4 IR 171

ZWANN, IN RE 1981 IR 395

CONSTITUTION ART 40.4.2

DUNNE v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 21.5.2009 2009/14/3214 2009 IESC 43

INTERPRETATION ACT 2005 S22(1)

FINGAL CO COUNCIL v WILLIAM P KEELING & SONS LTD UNREP SUPREME 29.7.2005 2005/25/5196 2005 IESC 55

ODULANA v MIN FOR JUSTICE UNREP CLARKE 25.6.2009 (NO TRANSCRIPT AVAILABLE)

CONLON CONSTRUCTION LTD, STATE v CORK CO COUNCIL UNREP BUTLER 31.7.75

THE STATE (VOZZA) v O'FLOINN 1957 IR 227

O (A G A) v MIN FOR JUSTICE 2007 2 IR 492

D (G) v MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 14.11.2006 2006/15/3094 2006 IEHC 344

F (B T) v DPP 2005 2 IR 559

1 1. The second applicant is a Nigerian national who arrived in this State in September, 2007 having been granted a visa by our Embassy in Abuja to enable him to pursuant a course of study here. Mr. Salaja registered with the Garda National Immigration Bureau and was registered under stamp 2 conditions. This permission has been renewed from time to time and he currently has permission to reside here until September, 2011. I will return shortly to the significance of the stamp 2 form.

2 2. Sometime after he arrived in Ireland, Mr. Salaja fell in love with a young lady who resided in Northern Ireland. A relationship formed and they had two children as a result. The elder child, Tiernan (who is the first applicant and who born in October, 2008) has joint Irish and British citizenship and the younger child, Cara, (who was born in May, 2010) is a British citizen. The Northern Irish courts have made a joint residence order in respect of the young boy, the terms of which provide that Mr. Salaja is to collect his son from his mother every Friday afternoon and return him every Monday afternoon. It is only proper to record that, judged from the various documentary exhibits filed in these proceedings, Mr. Salaja appears to be an exemplary father who seems to be wholly dedicated to the welfare of his children.

3 3. The stamp 2 permission enables Mr. Salaja to study and to work for a maximum of 20 hours a week during term time and 40 hours a week outside of term. He is, however, anxious to change his status from stamp 2 to stamp 4, the effect of which would be to enable him to work. To that end Mr. Salaja has made a series of applications for such a change of permission and in respect of the latest of which a decision has yet to be made.

4 4. The first of these applications was made in the autumn of 2009 and culminated in a refusal dated 2 ^nd February, 2010. Mr. Salaja made two further subsequent applications of this nature in June, 2010 and August, 2010 respectively. In both of these applications he drew attention to a new development, namely, the birth of Cara. In the August, 2010 application the second applicant also drew attention to what was described as "new supporting documentation." The Minister refused the first of these applications and a decision is awaited in respect of the second.

5 5. The second applicant maintains that the decision of 2 ^nd February, 2010, violates the rights of his family under Article 41 of the Constitution, Article 8 ECHR and Article 24 of EU Charter of Fundamental Rights on the ground that by restricting his right to earn a living, the Minister has thereby compromised the rights of the family, bearing in mind that he is by law legally obliged to support the two dependent children. The Minister has, however, brought a preliminary motion whereby he seeks to have the proceedings dismissed by reason of (i) mootness and (ii) alleged lack of candour on the part of the second applicant. This judgment addresses the issues arising by reason of this preliminary motion.

Mootness

6 6. The Minister maintains that these proceedings are moot on the basis that it is said that the entire proceedings amount to a purely academic exercise given that the information on which those applications were based has been superseded by the information contained in the June, 2010 and August, 2010 applications. It was contended that the effect of these new applications has been to render moot the question of whether the first refusal was valid, given that these latter applications have superseded the earlier one which gave rise to the refusal which is impugned in these proceedings.

7 7. The mootness doctrine is a rule of judicial practice which is designed to ensure the proper and efficient administration of justice. It thus shares a close affinity with other judicially created rules of practice, such as the rules relating to locus standi, the rule of avoidance and the doctrine of justiciability. These doctrines and rules of practice may all said to be constitutionally inspired - in particular, by the doctrine of separation of powers reflected in Articles 6, 15, 28 and 34 of the Constitution - even if they are not actually constitutionally mandated in express terms. As Article 34.1 of the Constitution provides that the administration of justice is committed to the courts, the courts must endeavour to fulfil that mandate by confining themselves to the resolution of actual legal controversies. If they were to do otherwise, then the courts would stray beyond that proper constitutional role of administering justice as between parties to a legal dispute, inasmuch as such decisions would amount to purely "advisory opinions on abstract propositions of law": see Hall v. Beals 396 U.S. 45 (1969)( per curiam). Outside of the special confines of Article 26 (which, in any event, provides for a binding decision - and not merely an advisory opinion - by the Supreme Court on the constitutionality of a Bill following a reference by the President), the provision by judges of such advisory opinions would not, at least generally speaking, serve the proper functioning of the administration of justice, since if unchecked or not kept within clearly defined limits, it would involve the judicial branch giving gratuitous advice on legal issues to the Oireachtas and the Government, a function which was never conferred on it by the Constitution.

8 8. The mootness doctrine further serves the interests of the proper administration of justice by conserving scarce judicial resources. As Hardiman J. observed in G. v. Collins [2005] 1 I.L.R.M. 1, 13 "proceedings may be said to be moot where there is no longer any legal dispute between the parties." In this respect, the doctrine of mootness may be said to constitute a sub-set of the broader locus standi rules, since if a legal dispute has been resolved and the issue thereby becomes moot, the litigants no longer have any proper interest in seeking to have the issue judicially resolved, even if they had such an interest at some point in the proceedings. In such instances, the public interest generally...