Supreme Court dismisses judicial review appeals because applicants failed to plead specific evidence of procedural flaws or irrationality.

THE SUPREME COURT

Record No. 341/00

Murray, J.

McGuinness, J.

Hardiman, J.

BETWEEN

TOMA ADAM, CONSTANTI GOCIU, MARIA GRIGORE, ALEXANDRU IONESCU, CIPRIAN IONESCU, SEBASTIAN LUCA, GEORGETTA

LUBASCU, IONEL LUPASCU, LIVIU-EMIL LUPESCU, ELENA MANCI, MIHAI GIEVE, STEFANTIA MOCIANU, GABRIEL BUZDUGAN,

DAVID MIRCEA NATANAEL, MINOR OLTEANU, ATTILA PAJZOS, VASSILI PAJZOS, MARIUS CORNEL PINZEAU, AUREL POPA,

CRISTINA POPA, NULA POPA, NICOLETA POPA, MIKI VYLY SZASZ, IOAN TIMARU, DANIEL NELU VISAS, DANIEL MURASAN,

ARGINT MUGUREL, ION SEVAN, VIOREL MATEI, DAN LUCA, IVAN MANUELA, OCTAVIAN GRIEL DANCI, VALERIU SAVIN, VASILE

MARGARET LABASCU, MIRAMAR DOBRA, MIRCEA DOBRA

AND BY ORDER

MARINA GOCIU, LIVIU-EMIL LUPESCU, MIHAI TRIFAN, STELUTA SERBAN, LUCIENI GIORGILA, ELVIS WIZI, MICHELA WIZI,

MIHAI MATEL IONEL MILITARU, MARIAN CHIRIAC, MARCU FLORIN, CLAUDIA FLORIN GOGA, LIOUDMYLA MASLOVA AND

DIMITRI MASLOVA

APPLICANTS

AND

THE MINSITER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

AND

Record No. 28/01 and 32/01

BETWEEN

FLORIN IORDACHE

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGEMENT of Mrs Justice McGuinness delivered the 5th day of April 2001

These are two appeals in judicial review proceedings from orders made by the High Court striking out the proceedings as disclosing no

reasonable cause of action and discharging prior orders giving leave to issue the proceedings. The appeals have been heard together

in accordance with an order made by the learned President of the High Court on the 30th day of January 2001. The appeals raise

similar issues for determination by this Court.

The first appeal, in the proceedings Toma Adam and Others v Minister for Justice, Equality and Law Reform and Others (referred to

for convenience hereafter as the "Toma Adam proceedings"), arises from a judgment and order of O'Donovan J. made the 16th

November 2000. The second appeal in the proceedings Florin Iordache v Minister for Justice, Equality and Law Reform and Others

(the "Iordache proceedings") arises from a judgment and order of the learned President of the High Court dated the 30th January

2001.

The Proceedings

(i) The Toma Adam proceedings

In the Toma Adam proceedings the High Court (Kinlen J.) granted leave to apply for judicial review by order made the 24th January

2000. The Applicants were stated to be persons who apprehended that they would be deported from the State and they were given

leave to seek the following reliefs:

"1 An Order of Certiorari quashing any deportation orders made by the first Respondent as the grounds upon which any such

orders were made were in breach of Article 29(3)(4) Article 40.3 (sic) of the Constitution in disregard of the provisions of the

European Convention on Human Rights 1951 and in breach of natural and constitutional justice.

2. An Order of Mandamus directing the Respondents to consider the Applicants claims for asylum humanitarian leave to remain

in Ireland or refugee status having regard to the European Convention on Human Rights 1951 and the current status of

Romania vis-a-vis the said Convention."

At the time the Applicants had also sought an order of Mandamus compelling the second and third named Respondents to institute

proceedings against Romania under the provisions of the European Convention on Human Rights, but the learned High Court judge

refused leave for them to seek this relief.

On the 27th June 2000 the Respondents filed a statement of opposition. At the same time the Respondents by notice of motion

sought the following orders:

"1. An order discharging the order of this Honourable Court made on the 24th January 2000 whereby the Applicants were given

leave to apply for judicial review in respect of the reliefs, and on the grounds, set out in the said order:

2. Further or in the alternative an order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts or, in the alternative,

pursuant to the inherent jurisdiction of this Honourable Court, striking out or dismissing the Applicants proceedings herein on

the grounds that the said proceedings disclose no reasonable cause of action against the Respondents or any of them, the

said proceedings are frivolous and/or vexatious and the said proceedings are doomed to fail."

Both the statement of opposition and the notice of motion were grounded on the affidavit of Michael Quinn, an Assistant Principal

Officer in the Asylum Division of the Department of Justice, Equality and Law Reform, sworn on 26th June 2000.

Subsequent to the issue of the Respondents' notice of motion the solicitor for the Applicants, Mr Pendred, filed a replying affidavit

sworn on the 21st July 2000. In addition, on dates between 6th September 2000 and 9th October 2000 each of nine Applicants swore

affidavits in virtually the same terms setting out in each case that he/she had arrived in Ireland and claimed asylum on the basis that

he/she was persecuted in his/her own country, Romania, that he/she suffered breaches of his/her human rights there, and that as a

result of those breaches and the persecution that he/she had a well founded fear of persecution should he/she return to that

country. There is no averment in any of the affidavits as to the details of the alleged breaches of human rights or persecution or of

the foundation of the fears which the deponents suffers. Each deponent exhibits documents relevant to his/her application for asylum

and the processing of his/her claim for asylum by the relevant authorities.

The Respondents' motion was heard by the High Court (O'Donovan J.) in October 2000. On 16th November 2000 O'Donovan J.

delivered a reserved judgment and made the consequent orders.

For the reasons set out in his judgment the learned High Court judge held:

(i) The Court had jurisdiction to review the order granting leave. This jurisdiction did not arise under Order 19 of the Rules

of the Superior Courts but was part of the inherent jurisdiction of the Court. In this context the learned judge referred to

the judgment McCracken J. in Voluntary Purchasing v Insurco Limited [1995] 2 ILRM 147 and adopted the reasoning

contained in that judgment;

(ii) The proceedings had been brought by a disparate group of persons, some of whom had already been granted refugee

status, others of whom had been permitted to remain in this country on humanitarian or other relevant grounds, and

others whose applications for asylum had not been finally determined and whose proceedings were therefore premature. It

was wholly inappropriate that the claims of the several Applicants should have been included in one set of proceedings;

(iii) The European Convention on Human Rights was not a part of Irish domestic law and, accordingly the Minister was not

obliged to take account of its provisions in exercising his statutory functions;

(iv) There was no evidence before the court that the Minister had failed to have regard to the situation in Romania when

considering the position of the Applicants nor was there any evidence that appropriate procedures had not been complied

with or of any breach of the principles of natural or constitutional justice.

The Applicants have appealed against the judgment and order of the learned High Court judge on the following grounds:-

"The Appellants contend that the learned High Court judge erred in law or in respect of a mixed question of law and fact on the

following grounds in holding that:

"(1) that the High Court had an inherent jurisdiction to set aside the grant of leave to apply for judicial review (even in

the absence of mala fides) and in failing to hold that the proper remedy for the Respondents was to appeal the grant of

leave to apply for judicial review.

(2) That in considering the Applicants applications for refugee status the first named Respondent was not obliged to take

account of any provisions, criteria and standards (set down by the European Convention of (sic) Human Rights (ECHR) or

that the State was not obliged to have any further regard to the ECHR in its legislation and administrative rules

pertaining to refugees and asylum seekers.

(3) In holding that there was no evidence that the appropriate procedures regarding the processing of the Applicants

asylum applications were not followed.

(4) In holding that the applications of those Applicants in respect of whom orders of deportation had been either made

or threatened or without substance and in further holding that the order of the High Court dated 24th January 2000

granting such Applicants leave ought to be set aside.

(5) In holding that the within judicial review proceedings disclose no reasonable cause of action against the Respondents

and ought to be set aside."

(ii) The Iordache proceedings

In these proceedings the Applicant was by order made by the High Court (Laffoy J.) on 5th May 2000 given leave to seek the

following reliefs by way of an application for judicial review:

(1) An Order of Certiorari quashing any deportation order made by the first named Respondent as the grounds upon which any

such order was made in breach of Section 3 of the Immigration Act 1999 and Article 29(3)(4)(sic) Article 40.3 of the

Constitution in disregarding the provisions of the European Convention on Human Rights 1951 and in breach of natural and

constitutional justice.

(2) An Order of Mandamus directing the Respondents to consider the Applicants claims for asylum, humanitarian leave to remain

in Ireland or refugee status having regard to the European Convention on Human Rights 1951 and the current status of Romania

vis-a-vis the said Convention.

(3) An Order of Mandamus compelling the second and third named Respondents to institute proceedings against Romania under

the provisions of the aforementioned Convention.

(4) An Order for damages.

In addition Laffoy J. ordered that the efficacy of the deportation order which had been served on the Applicant should be stayed until

the determination of his application for judicial review.

The Applicant's statement of grounds for judicial review was accompanied by an affidavit of his solicitor, Mr Pendred, in which he

averred that the Applicant was a Romanian National who sought asylum and refugee status in this State

"as he is subject to persecution and violations of their fundamental human rights in Romania on grounds of inter alia political

opinions, inhuman treatment, violations of liberty and freedom of conscience, abusive rights, lack of an effective remedy and

discrimination on grounds of belonging to a social and religious minority."

The bulk of Mr Pendred's affidavit sets out general accusations against the regime in Romania and what are basically legal submissions

in connection with the European Convention on Human Rights. No specific details are given of the various abuses suffered by the

Applicant.

On 4th August 2000 a statement of opposition was filed by the Respondents grounded on an affidavit of Noel Waters, Principal Officer

in the Department of Justice, Equality and Law Reform, sworn on 31st July 2000. As in the Adam case the Respondents also issued a

notice of motion dated 4th August 2000 seeking similar orders discharging the order granting leave and/or an order striking out or

dismissing the Applicants proceedings on the grounds that they disclose no reasonable cause of action, were frivolous and/or

vexatious and were doomed to fail.

With his affidavit Mr Waters exhibits a considerable amount of documentation concerning Mr Iordache's application for refugee status.

From these documents a certain amount of the factual background concerning the Applicant can be ascertained. The Applicant

arrived in Ireland in September of 1997. He is a Romanian National. He applied for refugee status on his arrival in Ireland. His

application was processed by an officer of the Department of Justice, Equality and Law Reform and was refused on the 25th May

1999. Mr Iordache appealed against this refusal on 3rd June 1999. At this stage he had the assistance of his then solicitors Messrs

James Watters and Company, who carried out considerable correspondence on his behalf with the asylum authorities. The various

documents involved in the appeal proceedings were processed. The appeal was heard by Mr Eamonn Cahill B.L. on 25th November

1999. Mr Cahill issued a decision on the 21st December 1999.

From a perusal of the papers exhibited by Mr Noel Watters in his affidavit it appears that at both hearings Mr Iordache claimed that he

had been persecuted for political reasons in Romania, in particular by the Mayor of the local town and his family. He also claimed that

he was homosexual and was likely to be persecuted for his sexual orientation if he returned to Romania.

In his decision Mr Cahill stated:

"There had been numerous inconsistencies in the Applicant's evidence. Initially, he claimed that he had been raped. In reply to

cross-examination by Ms Gibney he then said that his girlfriend had been raped and that it had not been him who had suffered.

There was no evidence that he had ever been persecuted for his sexual orientation and the Applicant stated that he had no

fears about returning to Romania. He was saddened that the Orthodox church had refused to forgive him for his feelings. He

was not aware that there had been a major amendment to the criminal law in Romania in March 1999 (it appears that this is a

reference to a change in the criminal law in regard to homosexuality.)

The Applicant has not produced any proof to suggest that he has a well founded fear of persecution for any of the Convention

reasons. Therefore, I recommend that his appeal be dismissed."

Mr Iordache and his solicitor were notified of the decision on the appeal on the 20th January 1999. Through his solicitor Mr Iordache

appealed to the Minister for Justice, Equality & Law reform to allow him to remain in Ireland on humanitarian grounds. It appears that

this also was refused since a deportation order was made by the Minister on the 12th April 2000. The making of this deportation order

was notified to the Applicant on the 28th April 2000 and his judicial review proceedings were issued, with Mr Pendred as solicitor, on

5th May 2000.

The Applicant himself swore an affidavit on 6th October 2000, subsequent to the issue of the Respondent's notice of motion and

statement of opposition, in which he avers that he suffered persecution because he practised homosexuality and for political reasons.

He goes on to state:

"I say my life was threatened and I was beaten up. The police refused to investigate my complaints. I was refused

employment because of my orientation. I say that the Romanian Penal Code includes in Article 200 which prohibits homosexual

relations which produce 'public scandal' or the promotion of homosexuality and these carry a five year sentence on conviction.

I say I am advised by my legal representatives of a person serving a three year jail sentence under the article for 'seducing'

another adult of the same sex. I say this Article is used to justify discrimination against those whose homosexuality becomes

known. I say that intergovernmental and non-governmental organisations have recommended the reform of this law but none

that has occurred."

It would appear from this affidavit that the Applicant's major ground for fearing to return to Romania is that he will be persecuted for

his homosexuality. This ground was not even mentioned in the original grounding affidavit of his application for judicial review which

was sworn by Mr Pendred.

The Respondents motion came on for hearing before the learned President of the High Court on the 23rd January 2001. The President

delivered his reserved judgment and made the consequent orders on the 30th January 2000. For the reasons set out in his judgment

the learned President held that:

(1) The Court had jurisdiction to review the order granting leave. It is clear from the judgment of the President that he was

aware of the judgment of O'Donovan J. in the Adam proceedings but was informed that that judgment was under appeal. He

therefore himself considered the issue of jurisdiction and reached the same conclusion as had O'Donovan J.

(2) The European Convention on Human Rights was not a part of Irish law and accordingly the Minister was not obliged to take

account of its provisions in exercising his statutory functions.

(3) There was no evidence that the deportation order had been made in contravention of the requirements of Section 3 of the

Immigration Act 1999.

(4) The Applicant's claim for an Order of Mandamus compelling the State to bring proceedings against Romania under the

Convention was doomed to fail because such an order would constitute an improper interference by the Court with functions

entrusted to the Government by Article 29.4.1 of the Constitution.

As a consequence of his judgment the learned President ordered that the Applicant's proceedings be struck out on the grounds that

they disclose no reasonable cause of action and were frivolous and vexatious and also ordered the discharge of the order of the High

Court dated the 5th day of May 2000. The learned President also directed that in the event of an appeal of his order to the Supreme

Court that the same should be heard at the same time as the proceedings, Adam and Others v The Minister for Justice, Equality and

Law Reform. The President also refused a stay on his order.

1 On 7th February 2001 the Applicant filed a notice of appeal, setting out a single ground of appeal as follows:

"The learned President of the High Court erred in fact and law in refusing the Applicant a stay on the order of the High Court

pending appeal to this Honourable Court which said refusal would in effect deprive the Applicant of the right of appeal."

The Issues

Two issues arose on the hearing of these appeals by this Court. The first was whether a judge of the High Court has jurisdiction to

discharge the order of another judge of the High Court granting leave to an Applicant, on the basis of an ex parte application, to

issue judicial review proceedings.

The second was whether, in both the Adam and the Iordache cases, the Applicants had in their original statement of grounds and

affidavits made out a stateable or arguable case for the relief they sought by way of judicial review.

In their written submissions to this Court Counsel for both sides also dealt with issues concerning the status and effect of the

European Convention on Human Rights in Irish law, but this aspect of the matter was not fully argued at the hearing before the Court.

Submissions of Counsel

Senior Counsel for the Applicants in the Adam proceedings, Mr Shipsey, submitted that the entire scheme of judicial review

proceedings, as governed by Order 84 of the Rules of the Superior Courts was radically different from that of ordinary plenary

proceedings. The approach of the Court in the case of Barry v Buckley [1981] IR 306 was not suitable for judicial review proceedings

and was not applicable to them. In ordinary plenary proceedings the originating pleadings - plenary summons, statement of claim -

were produced solely by the Plaintiff and as such were governed by Order 19 Rule 28 of the Rules of the Superior Courts which

enabled the Court to order any pleading to be struck out on the ground that it disclosed no reasonable cause of action. This provided

a necessary "filtering mechanism" whereby the Court could prevent cases with no rational basis coming to hearing.

In the case of judicial review, however, this "filtering mechanism" was already in place. Order 84 set out the necessity for the

Applicant in judicial review proceedings to obtain leave from the High Court before his proceedings could be issued. Leave would not

be granted in the first place if the proceedings were baseless, vexatious or frivolous. The test to be applied by the Court in granting

leave had been set out by the Court in G v Director of Prosecutions [1994] 1 IR 374. In his judgment in that case Finlay C.J. had set

out the test as follows:

"An Applicant must satisfy the Court in a prima facie manner by the facts set out in his affidavit and submissions made in

support of his application of the following matters:-

(a) that he has a sufficient interest in the matter to which the application relates to comply with Rule 20(4).

(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of

relief sought by way of judicial review.

(c) That on those facts an arguable case in law can be made that the Applicant is entitled to the relief which he seeks.

(d) That the application has been made promptly and in any event within the three months or six months time limits

provided for in Order 84 Rule 21(1), or that the Court is satisfied that there is a good reason for extending the time

limit.......

(e) That the only effective remedy, on the facts established by the Applicant, which the Applicant could obtain would be

an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is,

on all the facts of the case, more appropriate method of procedure."

In the same case Denham J. had referred to the burden of proof in an application for leave to issue judicial review proceedings as

follows:

"The burden of proof on an Applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts Order 84

Rule 20 is light. The Applicant is required to establish that he has made out a stateable case, an arguable case in law. The

application is made ex parte to a judge of the High Court as a judicial screening process, a preliminary hearing to determine if the

Applicant has such a stateable case."

In the Adam proceedings the Applicants application for leave had been carefully considered by Kinlen J. The learned judge had

obviously considered the matter fully, since he had permitted only a portion of the reliefs sought by the Applicants in their statement

of grounds. O'Donovan J. in his judgment in the High Court had accepted that this process of evaluation and filtering had been carried

out by Kinlen J. This being so, Counsel argued, it could not be open to a second High Court judge to set aside the decision of Kinlen J.

and to discharge the leave granted by him. This was akin to one High Court judge acting as an appellate Court from the decision of

another High Court judge. The proper route would be for the Respondent to appeal to this Court against the grant of leave.

Mr Shipsey conceded that the High Court had an inherent jurisdiction to set aside the grant of leave in judicial review proceedings

where there had been material non-disclosure or other conduct which was akin to lack of bona fides on the part of the Applicant, and

in this connection he referred to the judgment of Kelly J. in Adams v Director of Public Prosecutions (unreported High Court April 12th

2000). This, he said, was an exception to the general rule and there was no suggestion of lack of bona fides in connection with the

present application. In his judgment in the instant case O'Donovan J. had accepted that the case was not covered by Order 19 Rule

28 but had held that the Court had a wide ranging inherent jurisdiction to set aside the grant of leave and, indeed, to strike out the

entire proceedings. In so doing the learned trial judge had relied on the judgment of McCracken J. in Voluntary Purchasing v Insurco

Limited [1995] 2 ILRM 145. That case was not, however, a judicial review case and there had been no comparable filtering and

evaluation procedure applied to it. It did not, therefore, provide an authority for the proposition that the Court had an inherent

jurisdiction to set aside the leave already granted in judicial review proceedings. Indeed there was no authority for such a proposition.

Mr Shipsey also argued that, if this Court held that there was an inherent jurisdiction to set aside leave which had already been

granted, this should be done only in extreme circumstances, where it was crystal clear that the application did not meet the test set

out in G v DPP. Order 84 already provided a number of protections for public authorities who were likely to be subject to judicial

review. The filtering process of seeking leave existed to prevent undue and unnecessary harrying of public authorities.

As far as the second issue was concerned, Mr Shipsey submitted that the application as set out in the pleadings met the tests set

out in G v DPP. He referred to the decision of Keane J. (as he then was) in Irish Permanent Building Society v Caldwell [1979] ILRM

273 where the learned judge held that the jurisdiction to strike out proceedings ought not to be exercised in cases raising complex

and novel issues of law. Mr Shipsey submitted that in the instant case important new issues of law were raised in regard to the

relationship between Irish law, the Treaty of European Union, and the European Convention on Human Rights. He accepted that the

averments of the Applicants solicitor, Mr Pendred, in his original grounding affidavit were somewhat bare, but submitted that the

pleadings were open to amendment and that further affidavits could be filed.

Senior Counsel for Mr Iordache, Mr Horgan, adopted Mr Shipsey's arguments. He went on to refer to the judgment of Kelly J. in

Landers v Garda Siochana Complaints Board [1997] 3 IR 347 where the learned judge had accepted that the Applicants' judicial

review proceedings could be amended and that their departure from the procedure provided in Order 84 was not fatal to their claim in

circumstances where the procedure actually adopted did not amount to abuse of process of the High Court. Kelly J. had held that an

action should not be dismissed if the statement of claim admitted of an amendment which might save it. Mr Horgan submitted that

undue obstacles should not be put in the way of an Applicant seeking leave to issue judicial review proceedings; amendments of the

pleadings should be permitted and there was power to extend time where necessary. Counsel went on to argue that by virtue of its

ratification of the Treaty of the European Union the State was estopped from asserting that the Irish Courts had no part in the

enforcement of the provisions of the European Convention on Human Rights. The jurisprudence of the European Court of Justice

together with the provisions of Title 1 of the of Treaty of the European Union contradicted the proposition that an argument on behalf

of the Applicant that the State had violated his rights under the European Convention was doomed to failure before an Irish Court. It

was open to an Irish Court to draw inspiration from the European Convention in order to determine whether an Applicants' right to fair

procedures had been violated.

In the Iordache proceedings the order granting leave had permitted the Applicant to seek an order of mandamus compelling the

second and third named Respondents to institute proceedings against Romania under the provisions of the European Convention. Hr

Horgan stated that this relief was no longer sought by the Applicant.

Senior Counsel for the Respondents in both cases, Mr O'Donnell, dealt first with the issue of the jurisdiction of the learned High Court

Judges to discharge the leave to issue judicial review proceedings which had already been granted by the High Court. He submitted

that the conclusions reached by O'Donovan J. and Morris P. in their judgments were justified by fundamental principle, as well as by

the authorities referred to in the judgments. It had been suggested that where a Respondent in judicial review proceedings was

aggrieved by the making of an order granting leave the correct remedy was to bring an appeal to this Court. In practice such an

appeal would raise serious difficulty and would necessarily involve this Court considering arguments in evidence that had never been

considered by the High Court. In such circumstances this Court would effectively be acting as a Court of first instance rather than a

Court of appeal, a role which the Court had repeatedly and empathetically rejected.

Counsel for the Applicants had conceded that the High Court had jurisdiction to discharge the order giving leave where there was a

lack of uberrima fides in the original ex parte application. Once the principle of inherent jurisdiction was accepted it must extend to

other situations where the case made at the ex-parte stage could be shown, on application by the Respondent, to be unstateable,

without basis, or vexatious. He agreed with Mr Shipsey that this course should only be taken in a very clear case but he was in no

doubt that the jurisdiction existed.

As far as the Adam and Iordache cases were concerned, Mr O'Donnell submitted that it was entirely suitable for the High Court to

exercise its inherent jurisdiction to discharge the leave and strike out the proceedings. These were judicial review proceedings, not

appeal proceedings; it was the method whereby the Asylum authorities had reached their decisions that was under challenge rather

than the decisions themselves. In the pleadings in both cases no attempt at all had been made to identify particular defects in the

procedure used; there was no assertion that unfair procedures had been used; there was no suggestion that the decisions were

unreasonable in the sense defined in the Stardust and O'Keeffe decisions, and no concrete evidence was provided to establish the

danger of persecution (as defined by the Geneva Convention) which would be faced by the Applicants if they were returned to

Romania.

The essential complaint made by the Applicants in the proceedings was that the Minister was obliged to take into account the

provisions of the European Convention on Human Rights in exercising his powers in regard to Asylum seekers and refugees. It was

common case that the Convention had not as yet been incorporated into domestic law in this state. Mr O'Donnell referred to the

decision of this Court in In Re O'Láighleis [1960] IR 93 and to the judgment of Barrington J. in the more recent decision in the case of

Doyle v Commissioner of An Garda Siochana [1991] 1 IR 249. Barrington J. had stated (at page 263):-

"Ireland is a signatory of the European Convention on Human Rights and accepts the right of individual petition. But Ireland

takes the dualistic approach to its international obligations and the European Convention is not part of the domestic law of

Ireland. The Convention may overlap with certain provisions of Irish constitutional law and it may be helpful to an Irish Court

to look at the Convention when it is attempting to identify unspecified rights guaranteed by Article 40.3 of the Constitution.

Alternatively, the Convention may, in certain circumstances influence Irish law through European community law. But the

Convention is not part of Irish domestic law and the Irish Court has no part in its enforcement."

Mr O'Donnell accepted that both this Court and the High Court had had recourse to Convention jurisprudence in, for example,

constitutional proceedings, but such recourse to the Convention did not involve its enforcement by an Irish Court as was sought in

the present proceedings.

As far as Mr Horgan's argument on the effect of Title 1 of the Treaty on European Union was concerned, Mr O'Donnell did not accept

that Article F.2 of the Treaty had the effect of incorporating the European Convention into the domestic law of the State. In

particular it could not do so in relation to an area of law such as immigration policy which fell outside the field of Community law.

The Law and Conclusions

Through their Counsel, the Applicants in both sets of proceedings argued that, once leave to issue judicial review proceedings has

been granted, the High Court has no jurisdiction to discharge that leave. At the stage of the ex parte application for leave the

necessary filtering procedure has taken place, and the Court has decided that the application has met the tests set out in G v DPP

which I have quoted above. If the Respondent wishes to challenge this decision, the correct remedy is to appeal to this Court.

In the instant cases both O'Donovan J. in the Adam case and Morris P. in the Iordache case held that the High Court had an inherent

jurisdiction to discharge the order giving leave and to strike out the proceedings. Both judges relied in the main on the decision of

McCracken J. in Voluntary Purchasing v Insurco Limited [1995] 2 ILRM 145, and in particular on the passage at page 147 of the report

where the learned judge stated:-

"In my view, however, quite apart from the provisions of any rules or statute, there is an inherent jurisdiction in the Courts in

the absence of an express statutory provision to the contrary, to set aside an order made ex parte on the application of any

party affected by that order. An ex parte order is made by a judge who has only heard one party to the proceedings. He may

not have had the full facts before him or he may even have been misled, although I should make it clear that that is not

suggested in the present case. However, in the interests of justice it is essential that an ex parte order may be reviewed and

an opportunity given to the parties affected by it to present their sides of the case or to correct errors in the original

evidence or submissions before the Court. It would be quite unjust that an order could be made against the party in its

absence and without notice to it which could not be reviewed on the application of the party affected."

Both Mr Shipsey and Mr Horgan correctly point out that Voluntary Purchasing v Insurco is not a judicial review case, and that the

pleadings in that case had not been subjected to the filtering process of the application for leave. So far as I am aware they are also

correct in saying that there is no specific Irish authority prior to the present cases which establishes that the High Court has

jurisdiction to discharge an order for leave already given.

Even if it is true that the jurisdiction point has not specifically been argued and decided, there are, however, cases where the

inherent jurisdiction of the Court to discharge leave has been assumed and put into effect. Mr Shipsey himself has referred to the

judgment of Kelly J. in Adams v DPP (High Court unreported 12th April 2000), where the learned trial judge discharged the leave earlier

granted by O'Neill J. as against the third named Respondent, described in the pleadings as "Her Majesty's Secretary of State for

Home Affairs". Mr Shipsey distinguished the Adams case as being a case where there was material nondisclosure or other conduct

akin to a lack of bona fides on the part of the Applicant. He accepted that the Court had jurisdiction to discharge the leave in such

circumstances.

In the first place, in my view, Kelly J's decision in the Adams case was by no means solely dependant on material nondisclosure or lack

of bona fides. In his judgment he dealt in detail with the lack of any proper service of the proceedings and the nature of the

proceedings themselves before turning to consider what he saw as lack of bona fides. Secondly, the Adams decision was under

appeal at the time when the instant cases were heard before this Court. Judgment has now issued on the appeal (6th March 2001);

this Court upheld the learned High Court judge. However, this Court dealt with the matter as being one where the Court lacked basic

jurisdiction and where the case was unstateable; it did not deal, other than by a passing reference, to the matter of bona fides.

In the earlier case of Landers v The Garda Complaints Board [1997] 3 IR 347, which was also a judicial review case in origin, the third

named Defendant applied to have the claim against him struck out, relying on the inherent jurisdiction of the Court. While the

circumstances were not the same, and in the event Kelly J. refused to strike out the proceedings, it does not appear to have been

suggested that the Court had no jurisdiction to strike out what were basically judicial review proceedings.

In their book Administrative Law in Ireland, Hogan and Morgan discussed this question at pages 708 to 709 under the heading

"Appealing or setting aside the grant of leave", as follows:-

"But is it also the case that a putative Respondent could appeal the grant of leave? The existence of such a right of appeal is

more doubtful and not supported by present practice. In this regard we may note the comments of McCarthy J. in The State

(Hughes) v O'Hanrahan [1986] ILRM 218 at 211 where he doubted that without giving any reason whether anyone (other than

the Applicants) can appeal against an order ex parte. The proper course of action for a Respondent to object to the grant of

leave would seem to be to bring a motion seeking to have it set aside. The existence of such a jurisdiction was recognised by

Carswell J. (as he then was) in Re Savage's Application [1991] NI 103. While recognising that the burden on a Respondent who

moved the Court to have the grant of leave set aside was a 'heavy one', nevertheless:-

'If on mature consideration of the facts, and that the benefit of the arguments presented to me by both sides, I now accept

that there is not an arguable case on the facts, then I think that I should set aside the grant of leave.'

In effect, therefore, this jurisdiction to set aside is but an example in this particular context of a more general power to strike

out on the ground that the proceedings are 'clearly unsustainable'. If anything, however, this jurisdiction to set aside must be

even more sparingly exercised, in that the granting of leave by the High Court presupposes - in a way that the mere issuing of

a plenary summons does not - that the case is at least an arguable one."

In England the rules governing the application for leave to issue judicial review proceedings differ considerably from the Irish rules;

nevertheless the issue of the discharging of leave once given has also arisen for consideration. In the most recent edition of Lewis:

Judicial Remedies in Public Law, the author states at page 283 para 9-060:

"There is an inherent jurisdiction in the Court to set aside orders made without notice having been given to the other party,

including the grant of permission to apply for judicial review. That is the appropriate and usual method for challenging the

grant of permission. The Courts have emphasised, however, that the jurisdiction is to be exercised sparingly and that they will

only set aside permission in a very plain case."

In De Smith, Woolf and Jowell: Judicial Review of Administrative Action the question is dealt with at page 667 para 15.025 as follows:-

"Where leave has been granted, a Respondent may apply to set aside a grant of leave on the grounds that the application

discloses absolutely no arguable case or that there has not been frank disclosure by the Applicant of all material matters both

of fact and law. However except in very clear cases such applications are not looked on with favour by the Courts."

Both English authors refer to the case of R v Secretary of State for the Home Department (ex parte Chinoy) [1991] C.O.D. 381. In

that case the Applicant sought to judicially review the decision of the British Home Secretary to surrender him to the United States

authorities. Leave was granted by Simon Brown J. and the Home Secretary subsequently sought to set aside that leave. His

application was heard by two judges of the Queens Bench Division. In the course of his judgment Bingham L.J. referred to the

argument made by Counsel on behalf of the Applicant, who had submitted that if there was any jurisdiction to set aside the order

giving leave it was a jurisdiction which might only be exercised in the case of nondisclosure or in the case of new factual

developments since the date of the grant of leave. The learned judge commented:-

"I would unhesitatingly accept that those are grounds upon which the Court could exercise its discretion to set aside leave

previously given. But I would not accept the suggestion that the Court's jurisdiction may only be exercised where

nondisclosure or new factual developments are demonstrated. It seems to me that it is a jurisdiction which exists and which

the Court may exercise if it is satisfied on inter partes argument that the leave is one that plainly should not have been

granted.

I would, however, wish to emphasise that the procedure to set aside is one that should be invoked very sparingly. It would be

an entirely unfortunate development if the grant of leave ex parte were to be followed by applications to set aside inter partes

which would then be followed, if the leave were not set aside, by a full hearing. The only purpose would be to increase costs

and lengthen delays, both of which would be regrettable results. I stress therefore that the procedure is one to be invoked

very sparingly and it is an order which the Court will only grant in a very plain case. I am, however, satisfied, as I have

indicated, that the Court does have discretion to grant such an order if satisfied that it is a proper order in all the

circumstances."

In my view the learned trial judges in the instant cases, O'Donovan J. and Morris P. , were correct in deciding that this Court has a

jurisdiction to set aside an order granting leave which has been made on the basis of an ex parte application. However, I would

accept the submission of Mr Shipsey, with which Mr O'Donnell agrees, that this jurisdiction should only be exercised very sparingly and

in a very plain case. The danger outlined by Bingham L.J. in the passage quoted above would be equally applicable in this jurisdiction.

One could envisage the growth of a new list of applications to discharge leave to be added to the already lengthy list of applications

for leave. Each application would probably require considerable argument - perhaps with further affidavits and/or discovery. Where

leave was discharged, an appeal would lie to this Court. If that appeal succeeded, the matter would return to the High Court for full

hearing followed, in all probability, by a further appeal to this Court. Such a procedure would result in a wasteful expenditure of Court

time and an unnecessary expenditure in legal costs; it could be hardly said to serve the interests of justice. The exercise of the

Court's inherent jurisdiction to discharge orders giving leave should, therefore, be used only in exceptional cases.

Should, then, the inherent jurisdiction be used in the instant cases? I would accept that Mr Shipsey is correct in referring the Court

to the tests set out by the then Chief Justice in G v DPP and to the burden of proof as set out by Denham J. in the same case. The

first test is whether the Applicants have "a sufficient interest in the matter". In the Adam proceedings it is established by the

affidavit of Michael Quinn that quite a number of the listed Applicants either no longer have a proper interest in the proceedings

because they have been permitted to remain in this country, or have not yet acquired such an interest, since their applications for

refugee status have not yet been decided. Even if one considers the remaining Applicants, they have in common the fact that they

are Romanian nationals; that they are now, one presumes, in this country; and that they do not wish to return to Romania. These

simple facts do not go far enough to show, in the case of each Applicant, what is his or her specific "interest" in the proceedings. I

would be in agreement with O'Donovan J. in this case in holding that it is a most unsuitable procedure to have the applications of a

large number of Applicants grouped together in one set of pleadings, grounded on one non-specific affidavit, as they are here.

However, the most serious difficulties for the Applicants in both cases arise under tests (b) and (c) as set out in G v DPP - that the

facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of

judicial review and that on those facts an arguable case in law could be made that the Applicant was entitled to the relief which he

sought.

In the present cases the applications were initially grounded on the affidavits of Mr Pendred, Solicitor, which are couched in the most

general terms. He avers that the Applicants are subject to persecution in Romania in various ways which reflect the wording of

Articles of the ECHR. Subsequent to the granting of leave a number of further affidavits were sworn by individual Applicants. Again

these were in very general terms, simply expressing a fear that if the Deponent is returned to Romania he or she will suffer

persecution and abuse of his or her human rights. The affidavits exhibit in each case the documents relevant to the Applicants'

application for refugee status and its rejection by the authorities. It is, it seems, left to the Court itself to peruse these documents

and to extract from them what might be actual grounds for judicial review. This is in no way a satisfactory procedure. It cannot be

too often said that judicial review is not a further appeal against a decision which the Applicant wishes to overturn. It is a review of

the manner and method whereby that decision was reached to ascertain whether correct procedures were used which were intra

vires the decision maker and in accordance with natural and constitutional justice, and, in some cases, whether the decision was

"reasonable" in the sense defined in the Stardust and O'Keeffe decisions. In an application for leave to issue judicial review

proceedings in regard to a decision made by a public authority the Applicant must set out on affidavit at least sufficient detail to

establish the manner in which he claims the decision making procedure was flawed or in error.

In the instant cases I am not to be taken as saying that grounds for judicial review could not in any circumstances be made out by

any or all of the Applicants. Coincidentally, very shortly after the hearing of the present appeals by this Court, a judgment of the

English Court of Appeal in an asylum case was reported - R v Secretary of State for the Home Department, ex parte Turgut [2001] 1

All ER 719. This case concerned a Turkish Kurd who had entered the United Kingdom illegally and claimed asylum. His claim was

rejected by the Secretary of State and on appeal by the special adjudicator. After the Immigration Appeal Tribunal had refused him

leave to appeal, Mr Turgut applied to the Secretary of State for exceptional leave to remain. This too was refused. The Applicant

challenged these decisions on the grounds of irrationality and the judgments of Simon Brown L.J. and Schiemann L.J. (with both of

whom Thorpe L.J. agreed) contain a most interesting and far reaching consideration of the approach of the Courts to the rationality

or otherwise of decisions in asylum cases in the light of the European Convention on Human Rights. In that case some 1500 pages of

specific evidence were submitted to the Court relating to the danger that the Applicant's human rights would be abused if he was

returned to Turkey, and the challenge to the rationality of the Respondent's decision was fully pleaded.

On the pleadings in the instant cases, however, there is no way in which either this Court or the Court below could assess whether

the facts support a stateable ground for the relief sought, because in neither the Adam proceedings nor the Iordache proceedings did

the pleadings set out any specific evidence that the Minister had failed to have regard to the situation in Romania when considering

the position of the Applicants. Nor was there any evidence that appropriate procedures had not been complied with or that there was

any breach of the principles of natural or constitutional justice. It is not so much that the Applicants have not put forward a

stateable case as that they have not put forward any case at all within the confines of judicial review proceedings.

For these reasons I would dismiss both appeals and affirm the orders of the learned High Court judges. In the circumstances it is

unnecessary to consider such arguments as were made concerning the European Convention on Human Rights and the Treaty of

European Union.