Supreme Court applies Henchy test to grant leave for judicial review of deportation based on non-refoulement.

THE SUPREME COURT

[Appeal No: 419/2003]

Murray C.J.

Kearns P.

Denham J.

Hardiman J.

Fennelly J.

Between/

Abosede Oluwatoyin Meadows

Applicant/Appellant

and

The Minister for Justice, Equality and Law Reform, Ireland

and the Attorney General

Respondents

Judgment delivered the 21st day of January, 2010 by Denham J.

1. The High Court has certified a question of law for determination by this Court.

2. The question is:-

"In determining the reasonableness of an administrative decision which affects or concerns constitutional rights or

fundamental rights is it correct to apply the standard as set out in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39?"

The Doctrine of Reasonableness

3. This case turns on the meaning and application of the common law doctrine of reasonableness in judicial review. The

test of reasonableness has been the subject of many cases over the decades. In The State (Keegan) v. Stardust Victims'

Compensation Tribunal [1986] I.R. 642, Henchy J. stated, at p.658:-

"I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering

whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common

sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied

constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that

the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his

decision."

4. A later case arose in the context of planning and development legislation. In O'Keeffe v. An Bord Pleanála [1993] 1 I.R.

39 at p.70, Finlay C.J. stated:-

"'Irrational decision'.

The question arising on this issue falls to be decided in accordance with the principles laid down by this Court in

The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 which are set out in the judgment of

Henchy J. in that case, with which in respect of the legal principles applicable, all the other members of the Court

specifically agreed.

In dealing with the circumstances under which the Court could intervene to quash the decision of an

administrative officer or tribunal on grounds of unreasonableness or irrationality, Henchy J. in that judgment set

out a number of such circumstances in different terms.

They are:-

'1. It is fundamentally at variance with reason and common sense.

2. It is indefensible for being in the teeth of plain reason and common sense.

3. Because the court is satisfied that the decision-maker has breached his obligation whereby he "must

not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.'

I am satisfied that these three different methods of expressing the circumstances under which a court can

intervene are not in any way inconsistent one with the other, but rather complement each other and constitute

not only a correct but a comprehensive description of the circumstances under which a court may, according to

our law, intervene in such a decision on the basis of unreasonableness or irrationality."

5. Finlay C.J. went on to point out that the circumstances in which a court may intervene on the basis of irrationality are

limited and rare. He stated that a court cannot interfere with a decision-making authority merely on the grounds that it is

satisfied on the facts that it would have raised different inferences and conclusions, or that it is satisfied that the case

against the decision was stronger than the case for it.

6. There are two other important factors in his analysis: (a) the nature of the decision-maker, and (b) the burden of

proof. As regards the nature of the decision-maker, Finlay C.J. stated, at pp.71 to 72:-

"Under the provisions of the Planning Acts the legislature has unequivocally and firmly placed questions of planning,

questions of the balance between development and the environment and the proper convenience and amenities of

an area within the jurisdiction of the planning authorities and the Board which are expected to have special skill,

competence and experience in planning questions. The court is not vested with that jurisdiction, nor is it expected

to, nor can it, exercise discretion with regard to planning matters."

In O’Keeffe v. An Bord Pleanála the decisions under review were those made by An Bord Pleanála and related to planning

matters, an area of special skill and competence.

7. In O'Keeffe v. An Bord Pleanála, there were three important matters for consideration and application:-

a) An analysis to determine if the decision in issue was fundamentally at variance with reason and

common sense.

b) An analysis of the nature of the decision maker.

c) A recognition that the burden of proof rests upon the applicant for judicial review.

The skilled nature of the decision maker in issue required such a refined approach. However, the application of the strict

nature of the test in O’Keeffe v. An Bord Pleanála is limited to decisions of skilled or otherwise technically competent

decision makers. I am satisfied that O’Keeffe v. An Bord Pleanála has been construed too narrowly and in that manner

applied too broadly. The decision in O’Keeffe v. An Bord Pleanála related to a specialised area of decision making where

the decision maker has special technical or professional skill. A court should be slow to intervene in a decision made with

special competence in an area of special knowledge. The O’Keeffe v. An Bord Pleanála decision is relevant to areas of

special skill and knowledge, such as planning and development.

Common Law Doctrine

8. The test of reasonableness in a judicial review is a matter which has been addressed in cases over many decades. It is

a doctrine of the common law. Of its very nature it is a doctrine that is inherent in the system and has been applied to

many new areas of the law as they develop within the legal system.

9. As the Oireachtas legislates in new areas of law a consequence is that new lists of cases rise in the courts. A good

example of this is the growth of what are termed "the asylum" lists in the High Court. Such cases raise issues of personal

rights and fundamental freedoms. An increase in such cases has occurred in other common law jurisdictions also. Other

courts of the common law have reconsidered the test to be applied by the courts judicially reviewing such cases.

Other jurisdictions

10. Other jurisdictions have approached the growth of judicial review and fundamental rights in different ways. It appears

to me that the issue should be addressed in this State by applying Irish jurisprudence. In other words, there should be a

common law approach in the context of the Constitution and the law.

Effective remedy

11. Judicial review should be an effective remedy. This is so especially when access to the courts has been curtailed by

legislation. The process should be such as to give an effective remedy to the decisions under review, including those

impinging on fundamental rights and freedoms.

12. The review in this case arises under s.5(2)(b) of the Illegal Immigrants (Trafficking) Act, 2000, hereinafter referred to

as “the Act of 2000”, which makes provision for an application for judicial review. The section limits access to the courts

in a number of ways. (a) It provides that a person shall not question the validity of a series of decisions otherwise than

by way of an application for judicial review under Order 84 of the Rules of the Superior Courts. (b) The time for such an

application is limited to a period of fourteen days commencing on the date on which the person was notified of the

decision, unless the High Court considers there is good and sufficient reason for extending the period in which the

application should be made. (c) Also, such an application should be made by motion on notice and the statute places a

specific burden upon the applicant, i.e. the High Court must be satisfied that there are substantial grounds for contending

that the decision is invalid or ought to be quashed. (d) Further, that decision is final. No appeal lies to the Supreme Court

from a decision of the High Court except with the leave of the High Court, which leave will be granted only where the High

Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the

public interest that an appeal should be taken to the High Court.

13. Section 5 of the Act of 2000 was considered by this Court in The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2

I.R. 360 and determined to be constitutional. It was held that the requirements of s.5 did not constitute a denial of

access to the courts nor could it be interpreted as restricting the right of any person to bring proceedings pursuant to

Article 40.4.2˚ of the Constitution. Foreign nationals were held to have a constitutional right of access to the courts and

were entitled to the same degree of fairness as a citizen.

Time limitation

14. In relation to the time limitation, the Court stated, at p.393:-

"… the court is of the view that the State has a legitimate interest in prescribing procedural rules calculated to

ensure or promote an early completion of judicial review proceedings of the administrative decisions concerned.

However, in doing so, the State must respect constitutional rights and in particular that of access to the courts.

Accordingly, the court is of the view that there are objective reasons concerning the public interest in the

certainty of the validity of the administrative decisions concerned on the one hand and the proper and effective

management of applications for asylum or refugee status on the other. Such objective reasons may justify a

stringent limitation of the period within which judicial review of such decisions may be sought, provided

constitutional rights are respected."

Thus, while the time limitation was held to be constitutional, the proviso, as throughout the judgment, was that

constitutional rights be respected.

Burden of proof

15. In The Illegal Immigrants (Trafficking) Bill [2000] 2 I.R. 360, this Court considered the issue of the burden of proof, the

requirement that the High Court shall not grant leave unless the Court is satisfied that there are substantial grounds for

contending that the decision is invalid or ought to be quashed. Reference was made to McNamara v. An Bord Pleanála

(No.1) [1995] 2 I.L.R.M. 125, where Carroll J. interpreted the phrase "substantial grounds" in the Local Government

(Planning and Development) Act, 1992 as being equivalent to "reasonable", "arguable", and "weighty" and not "trivial" or

"tenuous". This Court stated in The Illegal Immigrants (Trafficking) Bill 1999 that:-

"The court is of the view that the imposition of a requirement to show "substantial grounds" in an application for

leave to apply for judicial review is one which falls within the discretion of the legislature. It is not so onerous,

either in itself or in conjunction with a fourteen day limitation period, as to infringe the constitutional right of

access to the courts or the right to fair procedures."

16. The High Court in this case, having reviewed the law, held:-

"Accordingly, I take the view that as a matter of law, the applicant has to satisfy this Court that the grounds as

made out for seeking leave to apply for judicial review are reasonable, arguable and weighty, with the added

proviso that they must not be trivial or tenuous."

I would affirm this analysis taken by the learned High Court judge as to the term "substantial grounds".

Access to court

17. Access to court is a fundamental right. However, in addition, the access permitted should be an effective remedy. A

remedy which is so limited that fundamental issues, such as fundamental rights, are not considered may not be effective.

If the legislature has already limited access to the courts then that factor should not be joined with a principle from the

common law which further limits the review so as to render it a breach of the Constitution.

It is the duty of the Court to ensure that the review process affords an effective remedy, especially when access to the

court is limited by legislation. While the legislation applicable in this case has been held to comply with the Constitution,

the use of rules at common law to restrict further the access to the courts could affect the constitutionality of the legal

process.

Fundamental rights

18. Fundamental rights arise in some cases where decisions are being judicially reviewed. When the decision being

reviewed involves fundamental rights and freedoms, the reviewing court should bear in mind the principles of the

Constitution of Ireland, 1937, the European Convention on Human Rights Act, 2003, and the rule of law, while applying the

principles of judicial review. This includes analysing the reasonableness of a decision in light of fundamental constitutional

principles. Where fundamental rights and freedoms are factors in a review, they are relevant in analysing the

reasonableness of a decision. This is inherent in the test of whether a decision is reasonable.

Proportionality

19. While the test of reasonableness as described in The State (Keegan) v. Stardust Victims' Compensation Tribunal and

in O'Keeffe v. An Bord Pleanála did not expressly refer to a concept of proportionality, and while the term "proportionality"

is relatively new in this jurisdiction, it is inherent in any analysis of the reasonableness of a decision.

20. "Proportionality" has been expressly referred to in judicial reviews in recent years. The doctrine of proportionality has

roots in the civil law countries of Europe but it has been applied in other common law countries, as well as in Ireland. For

example, in Radio Limerick One Ltd v. Independent Radio and Television Commission [1997] 2 I.R. 291, Keane J. stated at

pp.311 and 312:-

"The grounds on which the High Court can set aside a decision of a body such as the commission established by the

Oireachtas with specified functions and powers have been made clear in a number of decisions and need be referred to

only briefly. The locus classicus is the frequently cited passage from the judgment of Lord Greene, M.R. in Associated

Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 K.B. 223."

Keane J. went on to quote from the Wednesbury case, and from Henchy J. and Griffin J. in The State (Keegan) v.

Stardust Victims' Compensation Tribunal. He stated:-

"Thus in the present case, if the only ground on which the commission terminated the applicant's contract was

the carrying of the outside broadcasts and they were wrong in law in treating, as they did, those broadcasts as

advertisements within the meaning of the Act, it is difficult to see how their decision could be described as

'reasonable' either in terms of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B.

223 or on the application of the criteria proposed by Henchy J. in The State (Keegan) v. Stardust Victims'

Compensation Tribunal [1986] I.R. 642."

Keane J. then discussed the use of the test of proportionality in determining whether legislation was unconstitutional. The

learned judge noted that no Irish authority had been cited for the proposition that the principle of proportionality could be

invoked as a test on an administrative act. He referred to an approach being developed in England and stated at p.314

that:-

"Whatever view may be taken as to the desirability of that approach, it can be said with confidence that, in some

cases at least, the disproportion between the gravity or otherwise of a breach of a condition attached to a

statutory privilege and the permanent withdrawal of the privilege could be so gross as to render the revocation

unreasonable within Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 or The

State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 formulation. Thus, in the present case,

if the amount of advertising in the applicant's programmes had on two widely separated occasions exceeded the

permitted statutory limit by a few seconds, the permanent revocation of the licence, with all that was entailed for

the livelihood of those involved, would clearly be a reaction so disproportionate as to justify the court in setting it

aside on the ground of manifest unreasonableness. It is unnecessary to emphasise how remote that example is

from what admittedly occurred in the present case." [emphasis added]

This analysis of the proportionality test and the reasonableness test highlights the underlying similarity, with which I

agree.

21. Irish Courts have referred previously to the concept of proportionality as described in Canada. Costello J. stated in

Heaney v. Ireland [1994] 3 I.R. 593:-

"The means chosen must pass a proportionality test. They must (a) be rationally connected to the objective and

not be arbitrary, unfair or based on irrational considerations; (b) impair the right as little as possible; and (c) be

such that their effects on rights are proportional to the objective: see Chaulk v. R. [1990] 3 SCR 1303, at pages

1335 and 1336."

Costello J. went on to consider whether the restrictions imposed in that case were proportional to the object sought to

be achieved. I would adopt an approach to the proportionality test similar to that of Costello J..

22. The nature of the proportionality test is that, as described above, it must be rationally connected to the objective;

not arbitrary, unfair, or irrational. The inherent similarity may be seen in the requirement in O’Keeffe v. An Bord Pleanála

that the decision not be irrational, or at variance with reason or common sense.

Principles

23. It appears to me that the principles to be applied in a judicial review application, to determine if a decision is

reasonable or irrational, are fundamentally as described by Henchy J. in The State (Keegan) v. Stardust Victims'

Compensation Tribunal [1986] I.R. 642. They are broad principles.

24. A narrower aspect of the test, as stated by Finlay C.J. in O’Keeffe v. An Bord Pleanála, applies in circumstances where

the review is of a decision of a technical or skilled or professional decision maker in the area of that special technical or

skilled knowledge. The general test is not as narrow.

25. The relevant factors in the general test are as follows:-

(i) In judicial review the decision-making process is reviewed.

(ii) It is not an appeal on the merits.

(iii) The onus of proof rests upon the applicant at all times.

(iv) In considering the test for reasonableness, the basic issue to determine is whether the decision is

fundamentally at variance with reason and common sense.

(v) The nature of the decision and decision maker being reviewed is relevant to the application of the

test.

(vi) Where the legislature has placed decisions requiring special knowledge, skill, or competence, for

example as under the Planning Acts, with a skilled decision maker, the Court should be slow to intervene

in the technical area.

(vii) The Court should have regard to what Henchy J. in The State (Keegan) v. Stardust Victims’

Compensation Tribunal referred to as the "implied constitutional limitation of jurisdiction" in all decision-

making which affects rights. Any effect on rights should be within constitutional limitations, should be

proportionate to the objective to be achieved. If the effect is disproportionate it would justify the court

setting aside the decision.

The test

26. The test to be applied for unreasonableness was stated by Henchy J. in The State (Keegan) v. Stardust Victims’

Compensation Tribunal [1986] I.R. 642 at p.658. In O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 38 at p.70, Finlay C.J.

explained that the issue in that case fell to be decided in accordance with the principles laid down by this Court in The

State (Keegan) v. Stardust Victims’ Compensation Tribunal which, he stated, were set out in the judgment of Henchy J.,

with which all the other members of the Court agreed. Finlay C.J. referred further to the judgment of Henchy J., as set

out earlier in this judgment. There was no departure from the principles as set out by Henchy J. The O’Keeffe v. An Bord

Pleanála case was required to be decided in the specific situation where the decision-makers had made decisions

exercising specific skill and knowledge.

I am satisfied that the test applied by Henchy J., and agreed to by all of the members of the Court, is the correct test. It

should be applied in all the circumstances of each case. In a case where the decision maker has a special technical skill,

such as in O’Keeffe v. An Bord Pleanála , the test should be applied strictly. In a case where fundamental rights are in

issue, such rights form part of the constitutional jurisdiction of the Court in which a reasonable decision is required to be

made and, if made, analysed. As Keane J. stated in Radio Limerick Ltd v. Independent Radio and Television Commission

[1997] 2 I.R. at pp.311 – 312, the disproportion between the gravity or otherwise of a breach of a condition attached to

a statutory privilege and the permanent withdrawal of the privilege could be so gross as to render the revocation

unreasonable within The State (Keegan) v. Stardust Victims’ Compensation Tribunal formulation. Thus a decision could be

so disproportionate as to justify the court in setting it aside on the ground of manifest unreasonableness.

Decision under review

27. This appeal arises by way of an application for leave to apply for judicial review by Abosede Oluwatoyin Meadows, the

applicant/appellant, referred to as “the applicant” in this judgment. The decision which the applicant seeks to have

judicially reviewed was communicated to her by letter dated the 12th July, 2002. That letter was from an officer in the

Department of the Minister, on behalf of the Minster, and it commenced:-

"I am directed by the Minister for Justice, Equality & Law Reform to refer to your current position in the State and

to inform you that the Minster has decided to make a deportation order in respect of you under section 3 of the

Immigration Act, 1999. A copy of the order is enclosed with this letter.

In reaching this decision the Minister has satisfied himself that the provisions of section 5 (prohibition of

refoulement) of the Refugee Act, 1996 are complied with in your case.

The reasons for the Minister's decision are that you are a person whose refugee status has been refused and,

having had regard to the factors set out in section 3(6) of the Immigration Act, 1999, including the

representations received on your behalf, the Minister is satisfied that the interests of public policy and the

common good in maintaining the integrity of the asylum and immigration systems outweigh such features of your

case as might tend to support your being granted leave to remain in this state."

[Emphasis added]

28. The deportation order of the 8th July, 2002 stated:-

"WHEREAS it is provided by subsection (1) of section 3 of the Immigration Act, 1999 (No. 22 of 1999) that, subject

to the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 (No. 17 of 1996) and the

subsequent provisions of the said section 3, the Minister for Justice, Equality & Law Reform may by order require a

non-national specified in the order to leave the State within such period as may be specified in the order and to

remain thereafter out of the State;

WHEREAS Ms. Abosede Oluwatoyin Meadows a.k.a. Ms. Oluwatoyin Abosede Meadows is a person in respect of

whom a deportation order may be made under subsection (2)(f) of the said section 3;

And WHEREAS the provisions of section 5 (prohibition of refoulement) of the Refugee Act 1996 and the provisions of

section3 are complied with …

…

NOW, I, Michael McDowell, Minister for Justice, Equality & Law Reform, in exercise of the powers conferred on me

by the said subsection (1) of section 3, hereby require you the said Ms. Abosede Oluwatoyin Meadows a.k.a. Ms.

Oluwatoyin Abosede Meadows to leave the State within the period ending on the date specified in the notice served

on or given to you under subsection (3)(b)(ii) of the said section 3 pursuant to subsection (9)(a) of the said

section 3 and to remain thereafter out of the State."

High Court judgment

29. The High Court (Gilligan J.) on the 4th November, 2003 described the facts of the case which led up to the issue of

law. With the benefit of that judgment I shall refer to some of the salient facts. The applicant is a Nigerian national born

on the 25th September, 1982. She arrived in Ireland in December, 1999, aged seventeen. She alleged that she was forced

to flee Nigeria following clashes between her tribe, the Yoruba, and the Hausa tribe. Her mother and sister were involved

in tribal clashes and are presumed dead. Her father intended to marry her off to a son of a business associate who was a

member of the Hausa tribe. The applicant claims that as a result of this planned forced marriage she would be subject to

female genital mutilation. Arising out of the tribal violence, the applicant’s intended husband was killed and his father has

issued a direct threat against the applicant. As a result the applicant stated that her father paid 500,000 units of the

local currency to arrange for her to be flown to Dublin. On arrival in Dublin she sought refugee status.

The applicant has integrated well into Irish society. She attended school and did her Leaving Certificate examination in

June, 2001. She was accepted as a student for a diploma in nursing studies course with St. John of God Hospital in

association with University College Dublin and she was also placed on an A.I.B training programme by her school, which

she completed. She wished to commence her nursing studies but due to her refugee status was unable to continue,

though it was stated that UCD had held open a position for her subject to her application for refugee status.

On her arrival in the State the applicant complied with the relevant procedures which resulted in letters of the 30th June,

2000 and the 29th September, 2000 advising her that her application for refugee status had been refused. The applicant

appealed this decision which came before a Tribunal member on the 3rd April, 2001, which affirmed the decision to refuse

refugee status.

By letter dated the 10th September, 2001, the solicitor for the applicant wrote to the Minister pointing out that the

decision of the Refugee Appeals Tribunal may adversely affect the applicant’s constitutional rights, including the right of

freedom from torture and inhuman and degrading treatment, and the applicant should have the opportunity of adducing

expert evidence on relevant issues. It was submitted that such evidence would support the claim that the applicant

would be in danger of being subjected to torture and inhuman and degrading treatment which would be a violation of her

human rights and a breach of the principle of non refoulement.

On the 18th September 2001, a deciding officer on behalf of the Minister wrote to the applicant stating that the Minister,

for the reasons set out in the recommendation of the Refugee Appeals Tribunal, had decided to refuse to give the

applicant a declaration as a refugee. She was advised that she could make written representations to the Minister setting

out reasons why she should be allowed remain temporarily in the state, which representations should be written within

fifteen working days.

Her solicitor made written submissions in a letter of 8th October, 2001. The written submissions were extensive and

reference was made to the previous request to submit expert evidence on Nigeria.

This letter was acknowledged on behalf of the Minister on the 11th October, 2001. There was no further communication.

On the 7th June, 2002 the solicitors for the applicant wrote to the Minister seeking a reply, or alternatively that the

applicant would be given a temporary permission to enable her study to become a nurse, so that she could take up her

placement.

On the 12th July, 2002 the Minister replied indicating that he had decided to make a deportation order, and the terms of

that letter are set out earlier in this judgment. A copy of the deportation order was also sent to the applicant, and it too

is set out earlier in this judgment.

On the 17th July, 2002 the solicitors for the applicant wrote seeking copies of the conclusions and recommendations as

made to the Minister on foot of which he signed the deportation order. These were forwarded to the solicitor for the

applicant on the 23rd July, 2002.

The High Court

30. The learned High Court judge concluded that:-

"The documentation as exhibited by both the applicant and Mr. Charles O’Connell on the respondents’ behalf clearly

shows that there was extensive documentation before the first named respondent including a considerable amount

of country of origin and U.N.H.C.R. documentation. The two principal documents appear to be the report on the

examination of the file under s. 3 of the Immigration Act, 1999 as prepared by Derek A. Kelly, Clerical Officer,

dated 19th June, 2002 and the report of Maria Dardis, Executive Officer, Repatriation Unit, dated 19th June, 2002

and as prepared pursuant to s. 3 of the Immigration Act, 1999. Both Mr. Kelly and Ms. Dardis appear to have had

before them all relevant documentation. The recommendation of Ms. Dardis as set out in the report was

'Ms. Abosede Oluwatoyin Meadows case was considered under Section 5 of the Refugee Act 1996 and

under Section 3 (6) of the Immigration Act 1999. Refoulement was not found to be an issue in this

case. Therefore on the basis of the foregoing I recommend that the Minister sign the deportation

order across.'

This report was signed off by a Mr. O’Connell on 3rd July, 2002 and appears to have been approved by the Minister

on 4th July, 2002. No case is made out on the applicant’s behalf that any particular relevant documentation was

not before the Minister. Having regard to the documentation that was before him I am not satisfied that there is

any substantial ground for saying that the decision of the Minister is fundamentally at variance with reason or

common sense. I am satisfied that it was open to the Minister to come to the conclusion he arrived at on the

basis of the documentation before him applying the test as laid down in O’Keeffe v An Bord Pleanála. It is not open

to me to consider whether or not the Minister was obliged to consider the facts of this case and the

documentation before him on the basis of an "anxious scrutiny test" bearing in mind that the applicants claim is

one where she alleges an interference with her fundamental rights. It is no function of mine to consider the merits

of the applicant’s request for refugee status. My function is limited to considering the legal principles applicable to

the first named respondent’s decision.

Accordingly in applying the test as set out in s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 against the

criterion as set out in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39, I come to the conclusion that the applicant

has not made out a case for leave to apply for judicial review on substantial grounds and in the circumstances I

decline to grant the applicant the relief as sought and dismiss the application."

31. The High Court decided that there was a point of law of exceptional public importance which transcended the facts of

the case and that it was desirable in the public interest that the question be determined by this Court. That question is

set out at the commencement of this judgment. The query is whether in determining the reasonableness of an

administrative decision which affects or concerns constitutional or fundamental rights it is correct to apply the test as set

out in O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39.

Submissions

32. On behalf of the applicant it was submitted that in reviewing the reasonableness of a decision of the Minister, having

regard to the constitutional protection of basic human rights, together with protections available under international law,

and having regard to the obligations to ensure an effective remedy, the Courts should depart from the test for review

expounded in O'Keeffe v. An Bord Pleanála and should adopt a test which provides a real and effective review of a

decision which fails, it is submitted, to protect adequately or to vindicate the applicant's basic human rights. It was

submitted that the decision to make a deportation order in this case should be quashed for unreasonableness in that the

decision of the Minister fails to have due regard to the protection needs of the applicant having regard to the facts of the

case and the applicable law which requires that the applicant should not be exposed to a real risk of possible or likely

breach of human rights.

33. On behalf of the Minster, Ireland, and the Attorney General, the respondents, referred to in this judgment collectively

as "the respondents", it was submitted that the question posed by the High Court should be answered in the affirmative.

It was submitted that this Court should confirm that the O'Keeffe v. An Bord Pleanála standard of review continues to be

applicable to judicial review of all administrative decisions, including those decisions "which affect or concern

constitutional rights or fundamental rights". It was submitted that this did not mean that the test had to be applied in

precisely the same way in all contexts. It was submitted that where fundamental human rights are at stake the courts

may and will subject administrative decisions to particularly careful and thorough review, but within the test of

reasonableness as established in O'Keeffe v. An Bord Pleanála. The respondents submitted that a new test of "anxious

scrutiny" or "most anxious scrutiny" would be to go too far. It was submitted that to adopt such a test would alter

significantly the role of the courts in judicial review and would effectively constitute the courts as the ultimate appellate

tribunal from a vast range of administrative decisions.

Decision

34. I have analysed the relevant law earlier in this judgment and I will apply that analysis to the question certified.

35. The standard of judicial scrutiny was described by this Court in The State (Keegan) v. Stardust Victims’

Compensation Tribunal [1986] I.R. 642 at p.658 where Henchy J. stated that:-

"… the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision

plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-

maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in

all decision-making which affects rights or duties requires, inter alia , that the decision-maker must not flagrantly

reject or disregard fundamental reason or common sense in reaching his decision."

All of the members of the Court agreed with the legal principles stated.

36. These principles were applied in deciding O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 at p.70, as pointed out by

Finlay C.J.. Finlay C.J. restated the legal principle but did not change the principles which had been described previously

by Henchy J. and agreed to by the Court. However, in O’Keeffe v.An Bord Pleanála the nature of the decision-maker was a

very relevant factor. Finlay C.J. pointed out that the legislature had firmly placed questions of planning with the planning

authorities and the Board which are expected to have special relevant skills, competencies and experience on planning

issues. The nature of the decision-maker in that case was a key factor.

37. The standard of judicial scrutiny in O’Keeffe v. An Bord Pleanála is grounded on the test as stated in The State

(Keegan) v. Stardust Victims’ Compensation Tribunal . Consequently, fundamentally the test was stated in The State

(Keegan) v. Stardust Victims’ Compensation Tribunal and then in O’Keeffe v. An Bord Pleanála a strict interpretation was

taken in view of the nature of the decision-maker.

38. The test as stated by Henchy J. in The State (Keegan) v. Stardust Victims’ Compensation Tribunal is sufficiently

general when construed broadly in relevant circumstances to be applied so that fundamental rights may be protected.

39. The term "irrational" is less relevant in that it relates to situations which are alleged to be perverse and arise less

frequently in litigation.

40. The term "unreasonable" is the key, it is broader and essentially the basis of this type of scrutiny. A decision which

interferes with constitutional rights, if it is to be considered reasonable, should be proportionate. If such an approach is

not taken then the remedy may not be effective. This is relevant especially when access to the courts has been limited

by the legislature.

41. In this case it was submitted that the fundamental rights of the applicant would be affected by her proposed

deportation to a country where she has indicated a fear for her personal safety.

42. However, an aspect of the case was given only a glancing reference. In the letter of the 12th July, 2002 it was

stated:-

"In reaching this decision the Minister has satisfied himself that the provisions of section 5 (prohibition on

refoulement) of the Refugee Act 1996 are complied with in your case."

The Deportation Order stated:-

"And whereas the provisions of section 5 (prohibition on refoulement) of the Refugee Act 1996 … are complied

with…"

43. I am satisfied that the test in The State (Keegan) v. Stardust Victims’ Compensation Tribunal should be applied, and

in construing whether the decision was reasonable it is part of that analysis to determine whether it was within the

implied constitutional limitation of jurisdiction which affects rights, whether the decision was proportionate.

44. The applicant has claimed that she is fearful for her personal safety if returned to Nigeria. She has claimed that she is

in danger of female genital mutilation.

45. I would apply the factors and the principles, as set out earlier in this judgment, to this case.

(a) In this case the decision-making process being reviewed is that of the Minister.

(b) It is not an appeal on the merits.

(c) The onus of proof rests upon the applicant at all times.

(d) The test is to determine whether the decision of the Minister is fundamentally at variance with

reason and common sense.

(e) The nature of the decision and decision-maker are relevant.

(i) The decision in this case is to deport a person in circumstances where she has claimed a fear

for her personal safety. Thus the issue of the "implied constitutional limitation", as Henchy J.

referred to in The State (Keegan) v. Stardust Victims’ Compensation Tribunal [1986] I.R. 642, at

658, arises. The decision affects the applicant’s fundamental rights. The decision-maker has the

authority to make deportation orders under the legislation and the policy of the Government, but

that process must be seen to be reasonable.

(ii) The Minister is the decision-maker under the legislation and Government policy for

deportations. However, it is not an area of technical skill in the sense of the decision in O’Keeffe

v. An Bord Pleanála [1993] 1 I.R. 39.

(f) The Court should have regard to the implied constitutional limitation of jurisdiction of all decision-

makers which affects rights, and whether the effect on the rights of the applicant would be so

disproportionate as to justify the court in setting it aside on the ground of manifest unreasonableness.

46. The Minister made a decision on s.5 of the Refugee Act, 1996, which is indicated both in his letter and order. The

Minister stated in his letter of 12th July, 2002 that he "has satisfied himself that the provisions of section 5 (prohibition of

refoulement) … are complied with …" And, similarly, in the deportation order it is recited that the "… provisions of section

5 (prohibition of refoulement) … are complied with ..."

47. In the circumstances of this case I would distinguish Baby O v. The Minister for Justice, Equality and Law Reform

[2002] 2 I.R.. I agree with the analysis by Murray C.J. of the judgment of Keane C.J. in that case.

48. In all the circumstances of this case it appears that the decisions of the Minister affect constitutional rights and

fundamental rights, and thus they fall within the implied constitutional limitation of jurisdiction of a decision which affects

rights. It is this aspect of the decision which has caused me concern.

49. This judgment relates solely to the test to be applied by a court. It is intended to clarify the necessity to consider

constitutional rights in the context of the reasonableness test by the use of the principle of proportionality.

50. The Executive has a primary role in relation to policy and immigration. However, the Court has a duty to protect

constitutional rights. An aspect of this duty is that a remedy must be effective. The fact that there have been hearings

at administrative level does not nullify the Court’s duty. The facts and circumstances of the case, the hearings, the

nature of the decision, and the policy of the area, are relevant to achieving a constitutional analysis of the

reasonableness of a decision.

51. My conclusion is as follows. In determining the reasonableness of an administrative decision which affects or concerns

constitutional rights the standard to be applied is that stated by Henchy J., in The State (Keegan) v. Stardust Victims’

Compensation Tribunal [1986] I.R. 642. This has been set out previously in the judgment, but for clarity I restate it here:

Henchy J. stated at p.658:-

"I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering

whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common

sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied

constitutional limitation of jurisdiction in all decision-making which affects rights or duties require, inter alia, that

the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his

decision."

This test includes the implied constitutional limitation of jurisdiction of all decision-making which affects rights and duties.

Inter alia, the decision-maker should not disregard fundamental reason or common sense in reaching his or her decision.

The constitutional limitation of jurisdiction arises inter alia from the duty of the courts to protect constitutional rights.

When a decision-maker makes a decision which affects rights then, on reviewing the reasonableness of the decision: (a)

the means must be rationally connected to the objective of the legislation and not arbitrary, unfair or based on irrational

considerations; (b) the rights of the person must be impaired as little as possible; and (c) the effect on rights should be

proportional to the objective.

52. In all the circumstances I am satisfied that the applicant has established substantial grounds for contending that the

Minister’s decision conveyed by letter of the 12th July, 2002 on s.5 (non refoulement) was manifestly unreasonable. I

would grant an order to the applicant giving her leave to apply for judicial review of the decision of the Minister to deport

her, dated the 8th July, 2002, but only on the aspect of the decision which related to her complaint of refoulement

contrary to section 5 of the Refugee Act, 1996. The order should grant leave to apply for the relief sought at paragraph

d) I and II of the Statement of Grounds; on the grounds set out in paragraph e) 1, 3, 5 and 7, insofar as they relate to

section 5 (prohibition of refoulement) of the Refugee Act, 1996.