Z.A. v The Minister for Justice and Equality

JurisdictionIreland
JudgeMr Justice David Keane
Judgment Date11 July 2019
Neutral Citation[2019] IEHC 511
CourtHigh Court
Docket Number[2017 No. 444 J.R.]
Date11 July 2019

[2019] IEHC 511

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2017 No. 444 J.R.]

BETWEEN
Z.A.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY
RESPONDENT

Points of law of exceptional public importance – Proportionality – Balancing exercise – Applicant seeking a certificate that the High Court’s judgment involved two points of law of exceptional public importance – Is an examination of whether the Minister’s decision meets the requirements of proportionality under Art. 8 ECHR confined to determining whether the applicant can identify some flaw or failure in the way in which the Minister approached the balancing exercise resulting in a conclusion which plainly and unambiguously flies in the face of fundamental reason and common sense?

Facts: The unsuccessful applicant in the proceedings sought a certificate that the High Court’s judgment of 30 May 2019 involved two points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Court of Appeal on each of those points. That application was made pursuant to the terms of s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000. The first point of law of exceptional public importance contended for by the applicant was, in the terms proposed on his behalf: ‘Is an examination of whether the Minister’s decision meets the requirements of proportionality under Art. 8 ECHR confined to determining whether the applicant can identify some flaw or failure in the way in which the Minister approached the balancing exercise resulting in a conclusion which plainly and unambiguously flies in the face of fundamental reason and common sense?’ The second point of exceptional public importance contended for by the applicant was: ‘Is the learned trial judge correct in determining that the statement that the duration of a deportation order is for life is, at best, incomplete and, at worst misleading because it disregards the Minister’s power under s. 3(11) of the Act of 1999 to revoke a deportation order?’

Held by Keane J that the applicant was seeking the certification of a point that was not argued at trial and on which the law does not stand in a state of uncertainty. For those reasons, Keane J declined to certify the first point. Keane J held that he could identify no point of law arising from paragraph 29 of the judgment or, by extension, the second question that the applicant had raised; thus, he could not grant a certificate on that question.

Keane J held that the application for a s. 5 certificate would be refused.

Application refused.

JUDGMENT of Mr Justice David Keane delivered on the 11th July 2019
Introduction
1

The unsuccessful applicant in these proceedings seeks a certificate that the Court's judgment of 30 May 2019 involves two points of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Court of Appeal on each of those points. That application is made pursuant to the terms of s. 5(6)(a) of the Illegal Immigrants (Trafficking) Act 2000, as amended by s. 34 of the Employment Permits (Amendment) Act 2014 and the Court of Appeal Act 2014 (“the 2000 Act”).

Preliminary
2

As a preliminary matter, I must address a purported statement of the applicant that was included within quotation marks in the written legal submissions filed on his behalf in support of his application for a certificate.

3

It would appear that, after judgment was given on 30 May 2019, the applicant was directed to present himself at the Garda National Immigration Bureau on 14 June 2019 but failed to do so. The applicant's solicitors have received instructions from the applicant that he has left the State voluntarily to take up employment abroad.

4

In so far as it was capable of being material to the present application, there could have been no objection to the provision of that information to the court, although I am not convinced that it was strictly necessary to do so pursuant to the duty of candour, as counsel for the applicant submitted.

5

Be that as it may, it was certainly not necessary – indeed, it was completely inappropriate – to use that information as the pretext for the incorporation of a self-serving and solipsistic statement by the applicant in the applicant's written legal submissions, as though it was capable of having some legal or evidential value in its own right. That statement, improperly presented in that way, is devoid of any legal or evidential effect, and I have disregarded it for the purpose of the present ruling.

The test for a certificate
6

In Glancré Teo v An Bord Pleanála [2006] IEHC 250 (Unreported, High Court,13th July, 2006), McMenamin J considered a range of cases, including Kenny v. An Bord Pleanála [2002] 1 ILRM 68, Raiu v. Refugee Appeals Tribunal [2003] 2 IR 63, Lancefort Limited v. An Bord Pleanála [1998] 2 I.R. 511, Fallon v. An Bord Pleanála [1992] 2 I.R. 380, Irish Press v. Ingersoll [1995] 1 ILRM 117, Ashbourne Holdings v. An Bord Pleanála (Kearns J., 19th June, 2001, Unreported) and Arklow Holidays Limited v. An Bord Pleanála (Clarke J., the High Court, 29th March, 2006 Unreported), before concluding:

“I am satisfied that a consideration of these authorities demonstrates that the following principles are applicable in the consideration of the issues herein.

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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT