High Court of Ireland Decisions

1. By Order of the High Court (The Honourable Mr. Justice Kinlen) made herein on the 24th day of January 2000, it was ordered (inter alia) that the Applicants do have leave to apply by way of application for judicial review for;

2. The said Order was made pursuant to an application in that behalf made ex-parte and it is, I think, of significance that the reliefs thereby granted comprised only a portion of the reliefs sought by the Applicants in their Statement dated the 24th day of January 2000 of the grounds upon which their application for judicial review was being sought.

3. By Notice of Motion dated the 27th day of June 2000 addressed to Messrs. A.C. Pendred & Co., Solicitors for the Applicants, the Respondents seek;

4. The said Notice of Motion dated the 27th day of June 2000 came on for hearing before me on Monday the 2nd day of October 2000 and, on that occasion, Counsel on behalf of the Respondents submitted that, in the circumstance that the interests of the several Applicants herein were demonstrably different, the proceedings herein did not qualify for consideration as a class action; a submission with which, as I interpreted his response, Counsel for the Applicants did not take issue. Accordingly, as it appears to me that the respective interests of the several Applicants herein vary considerably, I think that it was wholly inappropriate that their respective claims herein should have been included in the one set of proceedings. However, for the present, that is by the by. Counsel for the Respondents also submitted; not only that the interests of the several of the Applicants herein were very different but that insofar as some of the Applicants were concerned, they have, in fact, been granted refugee status so that their cause of action herein no longer subsists and in respect of others of the Applicants, their applications for asylum have either been withdrawn, or have yet to be finally determined, or are the subject matter of separate proceedings for judicial review so that it is submitted on behalf of the Respondents that the grounds for a number of the claims herein either do not exist, or are premature, or are the subject matter of other proceedings. Furthermore, it is submitted on behalf of the Respondents that no evidence has been adduced on behalf of any of the Applicants that their application for asylum was considered in an unfair or deficient manner and neither is there evidence to suggest that appropriate procedures were not complied with, that relevant considerations were disregarded or that any decisions made with regard to applications for asylum by any one of the Applicants herein was tainted with unlawfulness. Indeed, it is submitted on behalf of the Respondents that, nowhere is the decision making process in respect of the applications of any one of the Applicants attacked or impugned. Accordingly, it is submitted that the proceedings herein have no substance.

5. In my view, there can be no doubt but that the claims herein of those of the Applicants who have, in fact, been granted refugee status and those of the Applicants, who have withdrawn their applications, no longer subsist and, accordingly, I am satisfied that the Order of the Court made herein on the 24th day of January, 2000; insofar as it effects those Applicants, ought to be discharged.

6. In an Affidavit on behalf of the Respondents sworn on the 26th day of June, 2000 by Mr Michael Quinn, an Assistant Principal Officer in the Asylum Division of the Department of Justice, Equality and Law Reform, Mr Quinn ( inter alia ) points to the current status of the applications for asylum which have been made by the several Applicants herein and, in particular, he referred to a table, exhibited in that Affidavit, in which essential details of the applications for asylum of each of the Applicants herein is set out. In this regard, while, in a replying Affidavit sworn herein on the 21st day of July 2000, the Applicants’ solicitor Mr. Pendred, comments on the contents of that table, I do not interpret those comments as challenging the accuracy of the details contained in that table and, accordingly, given that Counsel for the Applicants did not appear to me to take with the issue with the contents of that table. I accept it as evidence of the current status of the applications for asylum which have been made by each of the Applicants herein and that is the evidence upon which I am relying when I say that, in the light of that evidence, it would appear that Toma Adam, Lioudmyla Maslova and Dimitri Maslova have been granted refugee status and that the applications of Constandin Gociu and Mariana Gociu have been withdrawn for the reason that they have been granted residency based on an Irish born child. Accordingly, insofar as the said Order of the 24th day of January 2000, effects those persons, it is hereby discharged. It also appears from the said evidence that, insofar as the applications of Maria Grigore, Sebastian Luca, Liviu-Emil Lupescu, Giev Mihai, Stefanita Mocinu, Georgetta Lubascu, Ionel Lubascu, Ivan Manuela, Attila Pajzos, Vassili Pajzos and Claudiu Florin Goga are concerned, their applications for refugee status have yet to be finally determined and, that being so, it is my view that their applications herein are premature and, therefore, that the said Order of the 24th day of January 2000, insofar as it affects them, ought to be discharged. With regard to the applications of Alexandru Ionescu, Valeriu Savin, Gabriel Buzdugan and Vasile Margaret Lupescu, it would appear that those Applicants have initiated Judicial Review proceedings separate to these proceedings and, in those circumstances, given that it is my opinion that it was inappropriate that all the applications herein should have been included in the one set of proceedings, it is my view that those persons should pursue those other Judicial Review proceedings to the exclusion of their applications herein and, accordingly, insofar as the said Order of the 24th of January, 2000 effects them, it is hereby discharged. Insofar as the balance of the Applicants are concerned, it would appear that either a deportation order has been made against them or that their appeals against a refusal to grant them refugee status has been rejected and it is anticipated that an deportation order will be made against them in the near future or that their appeal against a refusal to grant them refugee status has not been accepted or is deemed to have been abandoned and, again, it is anticipated that a deportation order will be made against them.

7. Accordingly, insofar as those latter Applicants are concerned, I must consider whether or not they have established a reasonable cause of action against the Respondents.

8. Before considering the kernel of the Respondents application herein, I would like to emphasise that I do not regard this application as an appeal against the Order of The Honourable Mr. Justice Kinlen made herein on the 24th of January 2000. In that regard, I think that it is accepted by the parties and, in any event, I am satisfied that I do not have an appellate jurisdiction with regard to that Order. However, although, as I have indicated, I think that it is of significance that the reliefs granted by the Honourable Mr. Justice Kinlen by his said Order of the 24th of January 2000 comprised only a portion of the reliefs sought by the Applicants in their statement dated the 24th day of January 2000 of the grounds upon which their application for Judicial Review was being sought; thereby indicating that Mr. Justice Kinlen had considered all aspects of the case which was presented to him, I think, that in the context of this application, it is of greater significance that the application to Mr. Justice Kinlen was made ex-parte so that, when arriving at his decision, he did not have the opportunity of considering the infirmities in the Applicants’ application for Judicial Review which have allegedly been highlighted by the Respondents at the hearing before me and which I have had an opportunity to consider. Accordingly, I do not view the Respondents’ Application herein as an appeal against Mr. Justice Kinlen’s Order of the 24th January 2000. Rather do I view it as a request to invoke the inherent jurisdiction of the Court to set aside an Order made ex parte by a party who has been effected by that Order; an inherent jurisdiction which was recognised by McCracken J. in the course of a judgment which he delivered in a case of Voluntary Purchasing -v- Insurco Limited (1995 2 I.L.R.M. at page 147) and indorsed by Kelly J. in an unreported judgment delivered on the 12th day of April, 2000 in a case of John Adams -v- The Director of Public Prosecutions & Ors . In this regard, Counsel for the Applicants submitted that the two authorities with regard to the inherent jurisdiction of the Court to which I have referred and, indeed, all relevant decisions in that context are concerned with civil actions, rather than with a Judicial Review; the significant difference being, he submitted, that, on the hearing of an ex parte Application brought in the context of civil proceedings, there is no filtering procedure or judicial evaluation as there is on the hearing of an ex parte Application for leave to apply for Judicial Review. Accordingly, at the hearing of an ex parte Application for leave to apply for Judicial Review, the Court must be satisfied that the Applicant has established a prima facie case before it would accede to the Application whereas, at the hearing of an ex parte Application made in the context of civil proceedings, no such requirement is necessary. In that regard, Counsel for the Applicants pointed to the fact that, as the Honourable Mr. Justice Kinlen, by his Order of the 24th January 2000, had only granted portion of the reliefs sought by the Applicants in their statement of the grounds upon which their Application for Judicial Review had been sought, it is clear that the learned High Court Judge had filtered and evaluated the Application and, therefore, there was no inherent jurisdiction in the Court to set aside that Order in advance of the hearing of the Application for Judicial Review contemplated by it. While I acknowledge that it is clear that Mr. Justice Kinlen did, indeed, filter and evaluate the Applicants’ Application for leave to apply for Judicial Review, nevertheless, he only heard one party to the proceedings and he certainly did not have the full facts before him; in particular (inter alia) he did not have the details of the Applications for asylum of each of the Applicants herein which was included in the table referred to in the Affidavit sworn by Mr. Michael Quinn. Accordingly, like McCracken J. in Voluntary Purchasing -v- Insurco Limited , hereinbefore referred to, I think that it would be quite unjust if an order could be made against a party in his absence and without notice to it which could not be reviewed on the Application of the party affected. Moreover, I am not aware of any authority for the proposition that different considerations should apply with regard to the inherent jurisdiction of the Court on the hearing of an application for Judicial Review than those which apply in any other civil proceedings. Indeed, while Counsel for the Applicants seem to suggest that the Judgement of Kelly J. in Adams -v- The Director of Public Prosecutions and Ors ., hereinbefore referred to, is authority for that proposition and I accept that, in the course of the arguments which were advanced in that case, that proposition was put to Kelly J., as I interpret his Judgment, he rejected it, as do I in this case for the reasons which I have given.

9. In an Affidavit sworn herein on the 24th of January 2000 to ground their application for Judicial Review, the Applicant’s Solicitor, Mr. Anthony Conleth Pendred, deposes to the fact that the Applicants herein are Romanian nationals and that both the second named Respondent (Ireland) and the country of Romania have signed the European Convention on Human Rights 1951. Moreover, he expresses the belief; a belief which he says is based on information given to him by Counsel, that there are reasonable grounds for believing that Romania has failed to meet its obligations under that Convention; so much so, that it is also his belief that there are a number of cases in that behalf pending against Romania. Furthermore, Mr. Pendred also expresses the belief that the second named Respondent does not have any or any adequate regard for the provisions of the said Convention in its legislation and administrative Rules pertaining to refugees and asylum seekers although he expresses the belief, which., again, is based on information received from Counsel, that the second named Respondent is obliged to take account of the provisions, criteria and standards laid down by (inter alia) the Convention. In that Affidavit, Mr. Pendred goes on to detail his beliefs with regard to the duties of the second named Respondent to ensure the effectiveness of a Human Rights protection system among the Council of European States in the light of situations which exist vis-à-vis the Convention in particular States when determining asylum applications and, when determining asylum applications from Romanian nationals, must have particular regard for situations of that nature which exist in that country. Mr. Pendred then details a belief, which once again is based on information from Counsel, that one of the objects and purposes of the international system for the protection of Human Rights is to permit asylum to those in jeopardy of having their basic fundamental rights violated or, alternatively, to ensure compliance with agreed standard of Human Rights which are guaranteed by States accepting those standards as evidenced by signing up to the said Convention on Human Rights and he submits that merely to hear Applicants for asylum, at first instance and at appeals stage, without regard for the specific current position of Romania under the said Convention is wrong and is contrary to the Rules of Natural Justice. Accordingly, he maintains that deportation Orders made or threatened against any one of the Applicants herein do not have regard for the provisions of the said Convention and that the decisions are therefore, in breach of law and of Natural and Constitutional Justice.

10. In his Affidavit aforesaid, Mr Quinn expresses the belief, based on the advice of Counsel, that the provisions of the European Convention of Human Rights are not part of Irish Domestic Law and do not confer any rights on the Applicants, or any one of them, and neither does it impose any duties or obligations on the Respondents which are cognisable or enforceable by the Irish Courts. In the light of the judgment of the Supreme Court in the case of Doyle -v- Commissioner of An Garda Siochana (1999 1 I.R. at page 249), which is binding on me, I believe that to be so. As Barrington J. said in the course of that judgment “the Convention is not part of Irish domestic law and the Irish Court has no part in its enforcement”.

11. Accordingly, I reject the suggestion on behalf of the Applicants that, in considering their applications for asylum/refugee status, the First Named Respondent is obliged to take account of the provisions, criteria and standards laid down by the European Convention of Human Rights and, in the absence of any authority to the contrary, I also reject the suggestion that Ireland is obliged to have any further regard, than it currently has, in its legalisation and administrative rules pertaining to refugees and asylum seekers.

12. Notwithstanding the foregoing, I accept that, when considering an Application for Asylum, the First-named Respondent is bound to act in accordance with law and to observe principles of natural and constitutional justice. In this regard, Section 5(1) of the Refugee Act 1996 provides “ a person shall not be expelled from the State or returned in any manner whatsoever to the frontiers of territories where, in the opinion of the Minister, the life or freedom of that person would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion ”. That appears to me to be the law which, in this country, governs the situation of persons, such as the Applicants herein, who seek asylum, or refugee status. Moreover, I have no doubt but that, when considering whether or not the life or freedom of a person, who has applied for asylum or refugee status, would be threatened on account of any of the matters referred to in that subsection, the First-named Respondent, when considering whether or not such an Applicant should be expelled from the State or returned to the frontiers of other territories, is bound to have regard; not only for the matters referred to in Subsection 2 of Section 5 of the said Act i.e. the likelihood of the Applicant being subjected to serious assault, but he is also bound to have regard to principles of natural and constitutional justice. This is a basic right of every human being, and it is not, in my view, necessary to refer to any authority to justify it. Accordingly, irrespective of the provisions of any international conventions for the protection of human rights, I am satisfied that, before he can arrive at a decision to order the deportation of any one of the Applicants herein, the First-named Respondent must satisfy himself, by appropriate inquiry, that, following deportation the life or freedom of the deportee would not be threatened in the manner aforesaid. This begs the question as to what inquiry, consistent with the demands of natural and constitutional justice, must be undertaken by the First-named Respondent before he can conclude that it is appropriate that a person be deported from the state.

13. In this regard, in his said Affidavit sworn on the 26th day of June 2000, Mr. Michael Quinn deposes to the fact that the applications for asylum of the several Applicants herein have been and/or are being considered in accordance with law and, in particular, in accordance with the relevant provisions of the Refugee Act 1996 (insofar as that act has been brought into force) and of the Emigration Act 1999. Moreover, he avers that the provisions of those Acts and the procedures adopted by the Respondents are wholly consistent with the principles of international law governing the questions of asylum and refugee status. In this regard, Counsel on behalf of the Respondents have submitted that, apart from bald statements of belief in the said Affidavits of Mr. Pendred; belief based on information given to him by Counsel, that, when considering the applications for asylum of the several Applicants herein, the Respondents have not had regard for the provisions of International Law and that, therefore, any decisions made with regard to those applications are in breach of law and of Natural and Constitutional Justice, no evidence has been advanced to support that assertion and, in particular, there is no evidence that those applications were considered by the Respondents in an unfair or deficient manner. Moreover, while Mr. Pendred asserts in his said Affidavit of the 24th of January 2000, that merely to hear the Applicants at first instance and at Appeals stage of the asylum process without any or any adequate regard for the specific current position of Romania under the European Convention on Human Rights is wrong ipso facto it is submitted that, apart altogether from the fact that the said Convention is not part of Irish domestic law, and, therefore, does not impose any duties or obligations on the Respondents, there is no evidence that, when considering those applications, the Respondents failed to have regard for the current situation in Romania. Moreover, it is submitted on behalf of the Respondents that there is no evidence that proper procedures were not complied with when consideration was been given to the several applications for asylum of the Applicants herein and neither is there any evidence that relevant considerations were disregarded in the course of the hearing of those applications. On the contrary, it is submitted that the fact that asylum was granted to some of the Applicants herein indicates that regard was had to all relevant considerations when those applications were heard.

14. While it is clear that those of the Applicants herein who have had a deportation Order made against them, or who are threatened with deportation are naturally disappointed at the refusal to grant them asylum, I am not persuaded that there is any evidence to support the proposition that appropriate procedures were not complied with, or that relevant considerations were disregarded, when the decisions to refuse those applications were arrived

15. The aforementioned Orders discharging the said Order of the 24th day of January 2000 are made pursuant to the inherent jurisdiction of the Court in that behalf on the grounds that the proceedings herein disclose no reasonable cause of action against the Respondents.

16. In conclusion, I would like to point out that Judicial Review is not an inquiry into the propriety of a decision of the authority whose decision is being challenged. It is a review of the manner in which the impugned decision was made; see the Statement of Lord Brightman in R -v- The Chief Constable of North Wales Police (1982 1.W.L.R at page 1155) which was quoted with approval by Griffin J. in The State (Keegan) -v- Stardust Compensation Tribunal (1986 I.R. at page 642) and adopted by Kelly J. in Camara -v- The Minister for Justice, Equality and Law Reform and Others (an unreported Judgment delivered on the 26th day of July 2000). Accordingly, Judicial Review is not concerned with a decision but with the decision making process and I am not convinced that there is any evidence in this case which would justify the Court in interfering with the decision making process adopted by the Respondents when considering the applications of the several Applicants herein.

17. In addition, I might add that, in the circumstance that it is my view that it was wholly inappropriate that the claims of the several Applicants herein should have been included in the one set of proceedings; had I been of a mind to refuse the relief sought by the Respondents herein, which, of course, I am not, I would have directed that each of the Applicants would pursue their claims herein by way of separate proceedings.