Supreme Court dismisses asylum deportation appeals as frivolous and lacking individualized evidence.

[2001] IESC 38

THE SUPREME COURT

341/00

Murray J.

McGuinness J.

Hardiman J.

Between:

TOMA ADAM and ORS.

Applicants/Appellants

and

THE MINISTER FOR JUSTICE IRELAND AND THE ATTORNEY GENERAL

Respondents

and

28 & 32/01

Between:

FLORIN IORDACHE

Applicant/Appellant

and

THE MINISTER FOR JUSTICE IRELAND AND THE ATTORNEY GENERAL

Respondents

JUDGMENT delivered the 5th day of April, 2001 by Hardiman J.

1. These two cases were heard together and, I am satisfied, raise issues so similar that they can be dealt with in a single judgment.

2. In the first set of proceedings there are 48 Applicants/Appellants. I shall refer to these for the sake of brevity as “Adam”. All of the

Applicants are stated in the proceedings to be persons who apprehend being deported from the State. On the 24th January, 2000 the

High Court (Kinlen J.) gave them leave to apply for judicial review. Specifically they were given leave to seek the following reliefs:-

“(1) An Order of Certiorari quashing any deportation order made by the Minister, as the grounds upon which any such orders

were made were in breach of Article 29.3.4, Article 40.3 of the Constitution and in disregard of the European Convention on

Human Rights 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, or refugee status, having regard to the European Convention on Human Rights 1951 and the status of Romania viz a vis

the said convention”.

3. The relief which Mr. Adam and others were given leave to seek comprised part only of the relief sought in the statement grounding

their application for judicial review.

4. On the 5th May, 2000 Mr. Iordache was granted leave by the High Court (Laffoy J.) to seek the following reliefs by way of

application for judicial review:-

(1) An Order of Certiorari quashing a deportation order made by the Minister in respect of him on the 12th April, 2000.

(2) An Order of Mandamus directing the Respondents to consider the Applicant’s claim for asylum, humanitarian leave to remain

or refugee status having regard to the European Convention on Human Rights and the status of Romania viz a vis the said

convention.

(3) An Order of Mandamus compelling Ireland and the Attorney General to institute proceedings against Romania under the

Convention.

(4) Damages.

5. Mr. Iordache’s claimed reliefs were identical to those claimed by Mr. Adam and others. Mr. Iordache was, however, granted leave

to seek two reliefs which was refused to Mr. Toma and his fellow applicants.

6. On the 27th June, 2000 the Respondents issued, in the Adam proceedings, Notice of Motion seeking:-

“(a) An order discharging the order of the 24th January, 2000 or

(b) In the alternative an order pursuant to order 19 rule 28 of the Rules of the Superior Courts, or in the further alternative,

pursuant to the inherent jurisdiction of the Courts, striking out or dismissing the proceedings herein on the grounds that the said

proceedings disclosed no reasonable cause of action against the Respondents or any of them, and that they are frivolous

and/or vexatious and doomed to failure”.

7. At the same time as this Notice of Motion was issued, a Statement of Opposition was filed.

8. The Motion was heard on the 2nd October, 2000 by O’Donovan J. who delivered judgment on the 16th November, 2000. The

learned judge held:-

(i) The Court had jurisdiction to discharge the order of the 24th January, 2000.

(ii) That the European Convention on Human Rights was not part of Irish law and the Minister was not obliged to take account

of its provisions in exercising its statutory functions.

(iii) There was no 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 of any breach of the

principles of natural or constitutional justice.

(iv) That the proceedings are premature in respect of a large number of the Applicants whose applications for asylum have not

been finally determined.

(v) That it was wholly inappropriate that the claims of the several Applicants should have been included in one set of

proceedings.

9. The course of the Iordache proceedings was similar. The Respondents filed a Statement of Opposition and a similar Notice of

Motion. This was heard by the learned President on the 23rd January, 2001 and he delivered a reserve judgment on the 30th January,

2001. He made similar findings in relation to points (i),(ii) and (iii) above and further held that the Applicant’s claim for an Order of

Mandamus compelling the State to bring proceedings against Romania was doomed to fail because such an order would constitute an

improper interference by the Court with functions entrusted to the Government under Article 29.4.1 of the Constitution.

Issues on appeal.

10. The issues argued on the hearing of this appeal are as follow:-

(1) Whether the High Court or this Court on appeal has jurisdiction to set aside an order giving leave to seek judicial review.

(2) Whether the learned High Court judge was correct in finding that the Minister was not obliged to have regard to the

provisions of the European Convention on Human Rights.

(3) Whether the proceedings brought by Adam and others and by Iordache disclosed any reasonable cause of action against

the Respondents, were frivolous or vexatious or doomed to fail.

Jurisdiction to set aside the orders granting leave.

11. This was by far the issue most emphasized on the hearing of the Appeal. It is argued for the Applicants that, save in very narrow

circumstances, there was no jurisdiction in a judge of the High Court to set aside an order granting leave to apply for judicial review

which had been granted by another judge of that Court. It was conceded that such a power existed in the case of demonstrated

nondisclosure. It was further conceded in argument on behalf of the Applicants in Adam that there might be a power to grant an order

discharging an injunction given at the leave stage. In general, however, it was contended that no such power existed. The power

conferred by Article 19 of the Rules, it was submitted, was confined to plenary proceedings. This distinction was a justifiable one, it

was said, because judicial review proceedings were already subject to a filter in the form of the need to apply to a judge of the High

Court for leave. This, it was submitted, was a qualitative difference from plenary proceedings. It was further submitted that since the

legislature has in some cases required applications for judicial review to be made on notice, the Court should not entertain an

application to vacate leave in any other cases, because this would tend unwarrantedly to assimilate the majority of cases where no

notice was required to the exceptional cases where it was. Moreover, it was contended, the relatively rapid disposal envisaged by

Order 84 for judicial review cases removed the need for the existence of a jurisdiction such as is claimed by the Respondents.

12. It was submitted that a Respondent aggrieved by the very grant of leave had a remedy in the form of an appeal to this Court, but

no other.

13. In my view, any order made ex parte must be regarded as an order of a provisional nature only. In certain types of proceedings,

either the apparent requirements of justice or the requirements of its administration mean that a person will be affected in one way or

another by an order made without notice to him and therefore without his having been heard. This state of affairs may, depending on

the facts, constitute a grave injustice to the Defendant or Respondent. In the context of an injunction, only a very short time will

normally elapse before the Defendant has some opportunity of putting his side of the case. In judicial review proceedings the time

before this can occur will normally be much longer. This clearly has the scope to work an injustice at least in some cases.

14. Considerations such as those mentioned above led to the observations of McCracken J. in Voluntary Purchasing v. Insurco Limited

[1995] 2 ILRM 145:-

“...... Quite apart from the provisions of any rules or statute, there is an inherent jurisdiction of 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 part 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 interest 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 side 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 a party in its absence and without notice to it which could

not be reviewed on the application of the party affected”.

15. On the present application, it was sought to distinguish the observations of McCracken J. on the basis that they were inapplicable

to judicial review proceedings and were irrelevant to an application such as the present. In fact, however, the passage cited above

was followed by Kelly J. in John Adams (Applicant) v. The Director of Public Prosecutions & Ors (High Court unreported 12th April

2000. This was a judicial review case and the learned judge applied precisely the same principles. He also referred to another case,

Schmidt v. The Home Secretary of the Government of the United Kingdom & Ors. (High Court unreported Murphy J. 19th January,

1994) where a similar jurisdiction had been exercised.

16. The same view was taken in Northern Ireland in Re Savages Application [1991] NI 103. In that case, Carswell J. said:-

“If on mature consideration of the facts, and with 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 I should set aside the grant of leave”.

17. The last mentioned case was decided before the Rules of Court applicable in the United Kingdom changed to provide specifically

for the type of application which is now made. That change followed a report of the English Law Reform Commission entitled

Administrative Law: Judicial Review and Statutory Appeals (1994). At paragraph 9.4 of the report, describing the English practice as it

then was the Commissioners said:-

“At present a Respondent may apply to have the grant of leave to move for judicial review set aside. The grant of leave will

only be set aside if the Respondents can show that the judge’s decision that the case was fit for further consideration and a

substantive judicial review was plainly wrong”.

18. The report cites a number of English cases where this step had been taken, in the inherent jurisdiction of the Court: see R.v.

Home Secretary, ex parte Sholola [1992] COD 226 and R v. Home Secretary ex parte Chinois [1991] COD 381.

19. The amended English rules which followed the report of the Law Reform Commission was the first regulation by Rules of Court of

the jurisdiction to set aside a grant of leave to seek judicial review. There had however, been a practise direction in the early 1970’s

to regulate the inherent discretion of the UK Courts to set aside an order made ex parte: see Baker v. Noel (Practice Note) [1971] 1

WLR 803.

20. Accordingly it appears that both in this jurisdiction, and in the neighbouring jurisdictions (while their Rules of Court in relation to

judicial review were virtually identical to those now obtaining here) the inherent jurisdiction to strike out an order giving leave to seek

judicial review, was recognised. Indeed, even the Appellants in the present case do not seek wholly to deny the existence of the

jurisdiction: both Mr. Shipsey S.C. and Mr. Horgan S.C. conceded it to exist in the case of bad faith and Mr. Shipsey, at any rate, in a

case where an injunction had been granted at the leave stage. Towards the end of the argument I understood Counsel for both

Appellants to emphasise an alternative approach: that the fact that the Applicants for judicial review had to go through a filtering

process in the form of the ex parte application should put them in some respect in a stronger position than a Plaintiff faced with an

application to dismiss his case as disclosing no reasonable form of action.

21. In my view, once it is accepted that the jurisdiction invoked here by the Respondents exists, it is difficult to justify any hard and

fast restrictions on it. It was submitted that the Respondents here, being public authorities, are incapable of suffering the sort of loss

that an individual or even a corporate Defendant might. The present case was contrasted with the circumstances obtaining in the

leading case of Barry and Buckley [1981] IR 306, where Costello J. observed:-

“A disappointed purchaser, by instituting proceedings for specific performance and by registering a lis pendens against the land

which he alleges he has purchased, can effectively prevent a resale for a considerable time - perhaps extending over several

years. Obviously, substantial injustice could thereby result, both to the owner of the land and to a subsequent innocent

purchaser”.

22. It is certainly true that public authorities such as those who are the Respondents in the present cases cannot suffer certain

types of damage which an individual or corporate Defendant can. They are immune to the risks of commercial disaster and mental

distress. But I do not accept that, because of that characteristic, the orders granted have no affect upon them. The Applicants in

the present case have secured a stay on the orders, actual or potential, for their deportation: the authorities are unable to discharge

their functions in accordance with law. Moreover, I would accept the submission made on their behalf on the hearing of this appeal

that the pendency of the proceedings is in itself an effect. In every case a grant of leave will give rise to the incurring of costs and

to a certain generalised doubt or “chilling affect” in relation to the discharge of the functions in question. There is a public interest in

the due and rapid discharge of public duties, including duties of enforcement, which includes but is not limited to an interest in those

duties being discharged fairly.

23. I cannot accept the submission that, because the proceedings in question are judicial review proceedings, they would be rapidly

disposed of with a comparatively slight degree of delay and interference with the discharge of statutory functions. Judicial review

proceedings, especially in recent times, are not necessarily more rapid than any other form of proceedings and can be less so. In the

Adam case, several months were apparently occupied simply in checking the up-to-date status of the 50 odd Applicants, a process

which led to some 14 of them being struck out of the proceedings by consent. If the proceedings are not struck out at the present

stage, there will predictably be a lengthy process of discovery, and considerable expense in the conduct of the opposition to the

substantive application. For all these reasons, I consider that the grant of the leave to seek judicial review, especially when coupled

with a stay, is quite sufficient to constitute the Respondents as parties affected by an order. This is in my view gives rise to the

corollary that they must in a suitable case be entitled to attack the grant of leave.

Alleged right to Appeal.

24. The Appellants conceded in a course of argument that the Respondents were entitled to appeal against the grant of leave. I do

not consider that this would have been an appropriate course, or indeed that it is necessarily open to the Respondents at all. If the

Respondents had appealed against the orders granting leave, the hearing of the appeal would necessarily have involved this Court in

considering arguments and perhaps evidence (that of the Respondents on Affidavit) which had never been considered by the High

Court. This does not appear appropriate in an appellate court. In The State (Hughes) v. O’Hanrahan [1986] ILRM 218, McCarthy J.

doubted whether any party other than the Applicants could appeal against an order ex parte, no doubt on the basis just indicated.

25. I do not consider that the hearing in the High Court of an application to strike out a grant of leave is in any sense an appeal from

the judge who granted the original leave. On the contrary, it is a proceeding of an entirely different nature, being inter partes rather

than ex parte. Moreover, as the existence of the present appeal demonstrates, the decision on such an application is itself subject to

the right of appeal to this Court. On the hearing of such an appeal, unlike an appeal from the grant of an order ex parte, the Court is

manifestly exercising an exclusively appellate jurisdiction in relation to an order of the High Court made after both parties have been

heard.

The European Convention on Human Rights.

26. It was frankly conceded by Mr. Horgan S.C. that his arguments based on the European Convention required him to establish as a

preliminary that the decision of this Court in Doyle v. The Commissioner of the Garda Síochána [1999] 1 IR 249 was wrong.

Specifically, he would have to circumvent the holding, at page 269 of the report:-

“But the convention is not part of Irish domestic law and the Irish Court has no part in its enforcement. So far as Ireland is

concerned the institutions to enforce the provisions of the convention of the European Court of Human Rights and its

commission”.

27. In my view, no argument was addressed to the Court on the hearing of this appeal which provided any basis for a departure from

that recent and authoritative decision. In fact, no argument whatever was advanced for the proposition that Doyle was wrongly

decided: that proposition was merely asserted.

28. In the circumstances there is no need to do more, on this aspect of the case, than respectfully to follow the decision of

Barrington J. in Doyle. I wish to emphasise, however, that I am far from holding that the result of this case in any of its aspects would

have been different had it been appropriate to consider the provisions of the convention.

The merits of the application.

29. I turn now to the merits of the application: whether, indeed, either set of proceedings discloses a reasonable cause of action or

whether the proceedings are frivolous or vexatious or doomed to fail.

30. Both sets of proceedings are extraordinary in their form. All of the applicants are persons who had been unsuccessful at each

stage of the statutory procedures which they have gone through. That is, they have been found to have no personal fear of

persecution. They do not challenge these decisions on any recognised judicial review basis but instead mount a challenge

substantially based on the proposition that Romania is a country to which deportation should not be permitted. This, in turn, is based

not on evidence in any recognisable form but merely on “Counsels advice”. In relation to the Adam proceedings, there is no reference

to the individual circumstances of the respective applicants. These proceedings have correctly been stigmatised in argument to this

Court as “single transferable proceedings’, that is to say proceedings to which any person faced with a prospect of deportation to

Romania could subscribe. Mr. Iordache, whose proceedings are somewhat more specific to his individual circumstances in so far as he

complains of the law of Romania relating to homosexual practices and of certain non-political disagreements he has had with people

who hold or have held minor local office, are nevertheless both vague and contradictory. Although this Applicant was granted broader

relief in the High Court than his compatriots in Adam his real position, as far as evidence goes, is indistinguishable. In no case has any

serious effort been made to establish, as opposed to assert, what is alleged about the Romanian state. No applicant has made out a

credible case that he or she has an individual fear of persecution. And no applicant has made out any case at all, even the barest,

capable of sustaining an attack on the procedures which have led to their liability to deportation.

31. This situation is in dramatic contrast with that obtained in the well known case of Finnucane v. McMahon [1990] ILRM 505. There,

the Plaintiff, who was a person whose extradition to Northern Ireland was sought, established by specific and detailed evidence that

he and others in his position had already been subjected to brutal treatment at the hands of certain State authorities in the

jurisdiction requesting his extradition and had a well founded fear of being again so subjected. Here, no demonstrated individual

apprehension of any sort has been demonstrated or even (except for Mr. Iordache) sought to be demonstrated. The proceedings in

part relate to complaints of a sort which are appropriate to a political rather than a legal forum. They are scarcely recognisable as

legal proceedings at all and are totally deficient in their failure to provide any basis, even the vaguest, for challenging the decisions of

the Irish authorities to which they relate.

32. Mr. Iordache has been given leave to seek an order compelling the Irish state to institute proceedings against Romania. I consider

that no Court has jurisdiction to direct any such order to the executive. In the words of Article 29.4.1 of the Constitution:-

“The Executive power of the State in or in connection with its external relations shall in accordance with Article 28 of this

Constitution be exercised by or on the authority of the Government”.

33. In my view, it would fly in the face of this unambiguous provision if the Courts were to take it upon themselves to issue a

mandatory order to the State, the Government or the Attorney General directing the institution of proceedings under the Convention

on Human Rights against another sovereign State. To do so would be very specifically to usurp a function which the Constitution

reserves to the Government. Any such step would be gravely subversive of the constitutional separation of powers and it would be

wrong of the Court to contemplate it.

34. The Applicants’ proceedings are of the baldest kind, without any basis in law or fact, and, with the exception of Mr. Iordache’s

case, without any attempt to rely on proved individual circumstances either in relation to attacking the decisions taken in respect of

the individual applicants or on the broader aspects of their claim. In my view they are all frivolous, vexatious and doomed to fail:

indeed they are scarcely recognisable as legal proceedings at all.

35. So to hold is not to exclude the possibility that an applicant might, in proper proceedings, challenge a decision to deport him to a

particular country. The very recent English case of R. v. Secretary of State for the Home Department, ex parte Turgut [2001] 1 AER

719 is an example of such proceedings. It is clear from the report that the proceedings were properly constituted as a challenge, on

the basis of irrationality, to a decision of the Home Secretary that there were no substantial grounds for believing that the Applicant

would be at real risk of ill treatment if returned to Turkey. The report also illustrates the painstaking assembling of a formidable body

of evidence and the focusing of such evidence on the Applicant’s personal circumstances. In referring to this case I am not ignoring

the somewhat different context of Turgut arising from differences between Irish and UK law. Nor am I holding that a case precisely

modelled on that one would necessarily pass muster in this jurisdiction. Turgut’s application was unsuccessful in the event but it was

a case pleaded in a recognisable legal form, directly focused on individual circumstances, and supported by evidence in a form

acceptable to the English Court. In all these respects it is starkly in contrast with either of the present proceedings.

36. The Appellant’s final point in relation to these matters was that the Court should not strike out the proceedings if they were

capable of being saved by amendment. In my view, nothing which could properly be described as amendment could save these

proceedings. If, hypothetically, the applicants or any of them have any statable cause of action, it would require to be expressed in

proceedings in which bear no resemblance whatever to those presently under consideration.

37. I would only add that I entirely agree with the observations of O’Donovan J. in the first of these cases in relation to the

impropriety of the joinder in one set of proceedings of a large number of plaintiffs without any attempt to distinguish their individual

circumstances or to show any basis on which they could all feature as applicants in a single action.

38. I would dismiss the appeal in each case and affirm the order of the learned High Court Judge.