Z.I. (Georgia) & P.T. v Minister for Justice & Equality
| Jurisdiction | Ireland |
| Judge | Mr. Justice Richard Humphreys |
| Judgment Date | 29 November 2019 |
| Neutral Citation | [2019] IEHC 827 |
| Docket Number | [2019 No. 770 J.R.] |
| Court | High Court |
| Date | 29 November 2019 |
[2019] IEHC 827
THE HIGH COURT
JUDICIAL REVIEW
Richard Humphreys
[2019 No. 770 J.R.]
AND
Asylum & immigration – International protection – Leave to remain– Refoulement – Moot proceedings – Application for leave to seek judicial review – Costs
Facts: The applicants had applied for international protection, which was refused in 2018 as was leave to remain. They sought to challenge the latter which was refused, but further submissions were made after the issue of deportation orders. They now applied for leave to seek judicial review.
Held by the Court, that the parties agreed that the proceedings were moot as a consequence of the rejection of their challenge under s 3 of the Immigration Act 1999. They however differed on costs. Having considered the principles applicable, Humphreys J was minded to make no order as to costs.
The applicants made a claim for international protection on 19th November, 2017. On 28th March, 2018 they were notified that that had been rejected, as had leave to remain. They appealed to the International Protection Appeals Tribunal but were notified on 21st November, 2018 that that had also been rejected. On 23rd November, 2018 they sought a review of the leave to remain decision under s. 49(7) and (9) of the 2015 Act. On 8th August, 2019, that review was refused and the applicants were so notified on 14th August, 2019. So far, so conventional.
The complication in this case was that on 19th August, 2019 the applicants' solicitor wrote after the s. 49(9) decision, making further submissions on the issue of refoulement. On 20th August, 2019 the Department replied reminding the applicants that they were only entitled to one review under s. 49(9) and citing my decision in A.W.K. (Pakistan) v. Minister for Justice and Equality [2018] IEHC 631 [2018] 11 JIC 0504 (Unreported, High Court, 5th November, 2018). The Department's letter said that the representations already submitted would be considered in relation to refoulement prior to any deportation order and that any submissions regarding change of circumstances that were made after the deportation order would be considered under s. 3(11) of the Immigration Act 1999. On 30th August, 2019, deportation orders were made against the applicants.
On 9th September, 2019, the applicants' solicitor sent in further correspondence about refoulement, although he did not know at that stage that the deportation orders had already been made so he consequently did not know that his correspondence would be dealt with under s. 3(11) of the 1999 Act.
On 27th September, 2019, the deportation orders were served and on 29th October, 2019 the statement of grounds in the present proceedings was filed, the primary relief being certiorari directed at the deportation orders.
Initially one ground was pleaded, namely failure to give reasons for the conclusion that refoulement would not arise, notwithstanding the applicants' correspondence. The proceedings were amended on 25th November, 2019 to add a second ground regarding failure to consider the submissions. On 28th November, 2019, the s. 3(11) application (which, as noted above, is what the September correspondence was treated as) was rejected. That in the applicants' view rendered the proceedings largely moot. The other notable recent development was that on 27th November, 2019 the respondent filed an affidavit in the proceedings exhibiting a minute showing consideration having been given to the August, 2019 representations prior to the making of the deportation orders.
It is agreed that these proceedings can be struck out but an issue has arisen about costs and in that regard I have received helpful submissions from Mr. Michael Conlon S.C. (with Mr. David Leonard B.L.) for the applicants and from Ms. Sarah K.M. Cooney B.L. for the respondent. Both sides look for their costs against each other.
In my judgment in M.K.I.A. (Palestine) v. Minister for Justice and Equality [2018] IEHC 134 [2018] 2 JIC 2708 (Unreported, High Court, 27th February, 2018), I endeavoured to summarise the Supreme Court jurisprudence on moot proceedings, notably as set out in Cunningham v. President of the Circuit Court [2012] IESC 39 [2012] 3 I.R. 222, Godsil v. Ireland [2015] IESC 103 [2015] 4 I.R. 535 and Matta v. Minister for Justice and Equality [2016] IESC 45 (Unreported, Supreme Court, 26th July, 2016) (MacMenamin J.). There I noted that the first inquiry was whether there was an event to which the general rule could be applied, and that an act that could only be regarded as an explicit acknowledgment of the legal validity of the proceedings was such an event. Thus the event must normally be in some way caused by the applicant's proceedings. If the proceedings became moot due to a factor outside the control of either party then the default order is no order as to costs, and likewise if the proceedings became moot due to a factor within the control of one party but that had no causal nexus with the proceedings. If the proceedings became moot due to factor which was within the control of one party that did have a causal nexus, then the default order should be costs in favour of the other party.
The question...
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