Court of Appeal: Man granted injunction restraining IPAT from hearing appeal pending outcome of test case

About this case:

• Citation:
  [2018] IECA 322
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Michael Peart

The technical objection to the use of contractors by the International Protection Office was subject to a ‘test case’, in which Mr Justice Richard Humphreys granted a stay but refused relief in all of the other cases.

Allowing the appeal and granting the stay pending the outcome of the ‘test case’, Mr Justice Michael Peart said that the man’s constitutional right to litigate his claims, or to benefit from any success of the test case, outweighed the disruption to the IPAT caused by an injunction.

Background

In May 2018, RS was notified that an adverse recommendation had been made under s. 39(3)(c) of the International Protection Act 2015 in his application for a declaration of refugee status and for a subsidiary protection declaration. On this date he was also notified that the Minister for Justice and Equality had refused to grant him leave to remain in the State. 

In June 2018, RS lodged an appeal against the adverse subsidiary protection recommendation with the International Protection Appeals Tribunal.

In Judicial Review proceedings, RS contended that no lawful examination of his subsidiary protection application had been carried out by the Chief International Protection Officer, within the meaning of s. 34 and s. 39 of the International Protection Act 2015, and further that there was no lawful consideration of his application for permission to remain in the State by the Minister, within the meaning of s. 49 of the International Protection Act 2015.

In that regard, RS contended that the person who carried out the consideration and examination of his applications was engaged under a contract for services, and accordingly these exercises were not carried out in accordance with law. 

The ‘test case’

RS’s appeal against the subsidiary protection recommendation to the IPAT was scheduled to be heard on 22^nd October 2018, and he argued that if his appeal was heard and determined before the ‘test case’ is determined, his own judicial review proceedings would thereafter be moot.

In the ‘test case’, Mr Justice Humphreys granted a stay/injunction to IG, but refused to do so ‘in all of the other cases’. Stating that the balance of convenience and justice weighed against so doing, Mr Justice Humphreys placed emphasis on the IPAT’s statutory duty to hear appeals expeditiously, and said that the refusal would prevent a backlog when all of the cases of this nature would come on stream for consideration by the IPAT.

Court of Appeal

RS submitted that the refusal to grant a stay/injunction restraining the hearing of his appeal to the IPAT pending the determination of the ‘test case’, would result in him being deprived of his constitutional right of access to the courts and to litigate his claims.

In the Court of Appeal, RS sought to appeal the refusal to grant the stay/injunction in his case, arguing that Mr Justice Humphreys erred by:

• (a) Failing to give proper weight to the “neutral position” adopted by the Chief International Protection Officer, the Minister for Justice and Equality, and IPAT to the application for a stay. 
• (b) Engaging in any consideration of the strengths and weaknesses of the appellants’ substantive proceedings. That by considering the legal issue raised to be a “purely technical point” from which “no particular harm … beyond the speculative” had been demonstrated, Mr Justice Humphreys acted inappropriately by entering upon an assessment of merits at an interlocutory stage, where the issues arising on the judicial review involve a detailed investigation of fact, or complex questions of law. 
• (c) Failing to give adequate weight to the determination by the Supreme Court in IGthat the legal point raised a matter of general public importance, and satisfied the substantial grounds test. 
• (d) Failing to treat like cases alike. In other words, he granted a stay/injunction in the test case so that it would not become moot, but refused same in RS’s case. 
• (e) Considering HTK v Minister for Justice and Equality[2016] IEHC 43, in which it was found that the Tribunal “may only stay an appeal if so ordered by the High Court”, as a major factor – when the judgment is incompatible with paragraph 9 of the International Protection Act 2015 (Procedures and Periods for Appeal) Regulations 2017 which provides that IPAT “may adjourn a hearing … where it is satisfied that it is in the interests of justice to do so”. 
• (f) Attributing a benefit to RS from the refusal of the interlocutory relief being sought insofar as the consideration of his appeal (which he seeks to restrain) will go ahead without delay. RS would be estopped from complaining about any delay in the appeal process that is the result of his own litigation. 
• (g) Predicting that the test cases will ultimately fail, such that “all cases of this nature” will come on stream for consideration by IPAT at the same time. In fact, these cases will only fall to be considered by IPAT if the test case are unsuccessful, and in the event that the test cases succeed the other cases, including RS, ought to be remitted to the Chief International Protection Officer for a lawful examination.

Mr Justice Peart said that he attached significant importance to the virtue of upholding the orderly and expeditious administration of the statutory scheme put in place by the International Protection Act 2015, and that he accepted the position in Okunade v Minister for Justice [2102] 3 IR 152 that ‘absent some additional special circumstance an applicant seeking to resist a deportation order is that no stay will be granted’.

However, Mr Justice Peart said that the position of RS should be ‘distinguished from a person who has gone through a number of stages of a lawful process, and which has resulted in a lawful deportation order which he wishes to challenge by judicial review’.

Mr Justice Peart said that RS’s constitutional right to litigate his claims, or to benefit from any success of the test case, outweighed the undoubted disruption.

Allowing the appeal, Mr Justice Peart granted the injunction restraining the IPAT from hearing RS’s appeal pending the determination of the test case in the High Court.

• by Seosamh Gráinséir for Irish Legal News