High Court: Applicant refused costs for moot judicial review proceedings

About this case:

• Citation:
  [2018] IEHC 491
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice David Keane

The applicant had been granted leave to seek an order of mandamus compelling the Minister for Justice and Equality to make a decision on her application to remain in the State, however Mr Justice David Keane was satisfied that the decision which made the proceedings moot was made solely on a chronological basis and was not in response to the issue of proceedings.

Background

The first named applicant, Maria Lufeyo, entered the State in October 2013 on a student visa. Her son, the second named applicant, Tayedza Luke Kasuwanga, was born in the State in July 2015 and is a citizen of Ireland.

In September 2015, Ms Lufeyo applied to the Irish Naturalisation and Immigration Service (INIS) for permission to reside in the State based on her parentage of an Irish citizen child (pursuant to ‘the Zambrano Principle’ identified in Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi EU:C:2011:124).

Ms Lufeyo contacted the INIS in November 2015 to request acknowledgment of her application, and notification of any further information/documentation required. All required documentation was provided to the INIS by 9 December 2015, and it was not until 6 May 2016 that Ms Lufeyo enquired again as to the status of her application.

The INIS replied on 10 May 2016 stating that Ms Lufeyo’s application was ‘amongst many to be considered by the Minister’ and that it was not possible to provide a timeframe for the decision.

On 13 May 2016, Ms Lufeyo’s solicitor informed the INIS that it would initiate proceedings if the decision was not made within 14 days, to which the INIS responded by stating that this was not possible and that a decision could be expected by 20 August 2016.

Notwithstanding this, the applicants sought and were granted leave to seek judicial review in the High Court.

In June 2016, prior to the judicial proceedings and therefore rendering them moot, the INIS informed Ms Lufeyo that she had been granted permission to remain in the State until June 2019 on a Stamp 4 basis.

Notably, it was averred by a higher executive officer in the Immigration and Naturalisation Service of the Department of Justice and Equality that this decision was made at this particular time solely because it was the next application to be considered in a chronological system.

Considering the chronology of events, Mr Justice Keane explained that it was clear that Ms Lufeyo, through her legal representatives, believed:

1. That it was for the Minister for Justice and Equality to ‘scratch into’ the question of whether Ms Lufeyo’s son was dependant on her, conduct an inquiry into the nature and extent of that dependence, and determine whether there was a real risk that her Irish citizen child would be compelled to leave the State with her if she was not granted permission to reside.
2. That the provision of evidence for the purposes of conducting such an inquiry should be ‘reactive’ rather than ‘proactive’;
3. That the Minister should conduct this inquiry within a short timeframe.

Application for costs

In the present application to the High Court, the applicants sought costs for the proceedings against the Minister.

Mr Justice Keane set out the principles which he stated were from the leading cases on costs of moot proceedings:

• (a) Under O. 99, r. 1(4) of the Rules of the Superior Courts, the general rule on the costs of proceedings is that they follow the event, although there is a discretion to order otherwise (Grimes v Punchestown Developments Co. Ltd[2002] 4 IR 515)
• (b) Even where the substantive point has become moot, the first inquiry which a court must make on a follow-on costs application is to decide whether or not there exists an “event” to which the general rule can be applied. Such an event may exist where, for example, the actions that rendered the proceedings moot were carried out in direct response to the issue of the proceedings. (Godsil v Ireland[2015] 4 IR 535)
• (c) Where there is no ‘event’, the basic rule, though not one that should be applied over-prescriptively, is that, in the absence of significant countervailing factors, the court should lean ordinarily in favour of making no order as to costs where a case has become moot due to a factor or occurrence outside the control of the parties but should lean in favour of awarding costs against a party through whose unilateral action the proceedings have become moot; Cunningham v. President of the Circuit Court[2012] IESC 39.
• (d) There are hybrid cases that do not fit neatly into either category (Cunningham). The most obvious instance of such a case is where a statutory officer or body, whose conduct is under challenge, has changed position, to a greater or lesser extent, due to wholly external factors. Statutory authorities have an obligation to exercise their powers in a proper manner. Where circumstances change, it is not only reasonable but necessary for them to take that into account, which may result in a change of position, rendering proceedings moot. When that happens, it may be inappropriate to characterise the proceedings as having become moot by the unilateral action of that authority, whereas it may be appropriate to do so if there has simply been a change of mind or the adoption of a new and different view. Where the immediate or proximate cause of mootness is an act or omission of a statutory body or officer, which that body or officer claims was precipitated by an external factor or factors, that body or officer bears the evidential burden in that regard (Cunningham)
• (e) The court cannot and should not form a view on the merits of the proceedings - i.e. whether the substantive application for judicial review would have succeeded or failed; (Cunningham).
• (f) The quite different test for determining the issue of liability for the costs of moot proceedings posited in G. and N.G. v The Minister for Justice[2006] IEHC 371 - i.e. whether in the circumstances it was reasonable for the applicants to have commenced their application for leave to seek judicial review - must now be viewed as one limited in its application to the facts of that case; Matta v Minister for Justice [2016] IESC 45.

Applying the above principles to the present case Mr Justice Keane conclude that the application was rendered moot when the INIS informed Ms Lufeyo of the Minister’s decision in June 2016. That this decision was made due to the chorological system at the Immigration Unit and not in response to the issue of proceedings; and that mootness was not caused by the unilateral actions of the Minister.

As such Mr Justice Keane made no order on the costs of the proceedings.

• by Seosamh Gráinséir for Irish Legal News