Title:	XX -v- Minidter for Justice and Equality
Neutral Citation:	[2019] IESC 59
Supreme Court Record Number:	133/18
Court of Appeal Record Number:	169/17
High Court Record Number:	N/A
Date of Delivery:	07/23/2019
Court:	Supreme Court
Composition of Court:	O'Donnell Donal J., MacMenamin J., Dunne J., Charleton J., O'Malley Iseult J.
Judgment by:	Charleton J.
Status:	Approved
Result:	Appeal dismissed

An Chúirt Uachtarach

The Supreme Court

O’Donnell J
MacMenamin J
Dunne J
Charleton J
O’Malley J

Between

Judgment of Mr Justice Peter Charleton delivered on Tuesday 23 July 2019

1. For clarity, the applicant is also called Khalid, which is not his name but is common in the Arabic-speaking world as a given name and as a family name. The necessity to use initials arises from the protection of anonymity granted by statute; see MARA (Nigeria) v Minister for Justice and Equality [2014] 1 IR 561. Particular care to the extent of using incorrect initials and a name unrelated to the applicant arises due to the fact that he is alleged to be active for Daesh, or Islamic State of Iraq and the Levant, ISIL, or ISIS, and as such was deported from Ireland on security grounds in 2016. Khalid’s appeal is taken by him against a complex background of steps pursuant to legislation passed by the Oireachtas for the protection of refugees. The proper interpretation of that legislation in relation to applying for refugee status, and then withdrawing that application and subsequently applying again, arises. Since very many asylum applications become judicial review applications in the High Court, the interpretation and application of the legislative provisions requiring such challenges to be taken within a particular timeframe and not later as a collateral attack is also in issue. Finally, since Khalid was deported from Ireland, the Minister claims that this application is moot, in the sense that no practical result to his benefit will result from any judgment in his favour.

Asylum: application and withdrawal

2. Khalid is of Palestinian origin. He arrived in Ireland with his family in early 2000 when his wife was heavily pregnant. He applied for asylum on the grounds that his religious and political beliefs resulted in harassment by the authorities in his country of origin. This application was sent for processing in the ordinary way. Shortly thereafter his wife gave birth to a child who was an Irish citizen, by virtue of the then applicable form of Article 2 of the Constitution providing for citizenship to all those born in this jurisdiction. The conditions for citizenship changed by virtue of the Twenty-Seventh Amendment of the Constitution Act 2004 following a referendum of the people. Shortly after the time of his asylum application, Khalid decided that his prospects of obtaining residence in the State were better pursued through his status of having a child who was a citizen. Consequently, by letter of 14 August 2000, Khalid told the asylum division of the Department of Justice, Equality and Law Reform that: “having already applied to Immigration in Stephens Green for residency on the basis of my Irish Born Child, I now wish to withdraw my asylum application.”

3. This letter was acknowledged by the respondent Minister. Further, the plain reality is that thereafter the application of Khalid was treated as one for immigration. On 15 August 2000, the letter was replied to thus by the Department:

I am directed by the Minister for Justice, Equality and Law Reform to refer to your recent letter regarding your wish to withdraw your case for asylum which has been noted on our files. I also note that you wish to apply for residency in the State on the basis of your Irish Born Child. Your application for residency will be forwarded to the Immigration Division of this Department for further consideration. All future enquiries should be made in writing to [name given of the] Immigration Division [address given]…

5. By a complex route, the Minister claims that if the application for asylum was treated as having been withdrawn, such withdrawal is statutorily equivalent to a refusal of permission and thus requires the consent of the Minister for such a withdrawn applicant to enter the asylum adjudication and processing system for a second time. Under section 8(1)(a) of the Refugee Act 1996, a person “who arrives at the frontiers of the State seeking asylum in the State or seeking the protection of the State against persecution … may apply to the Minister for a declaration” that he or she is a refugee. This will then be processed in the usual way, though the system and legislation have now changed. Under section 17(7) of the 1996 Act, a “person to whom the Minister has refused to give a declaration may not make a further application for a declaration under this Act without the consent of the Minister.” As it turns out, the 1996 Act was not then in force. Commencement was by the Refugee Act 1996 (Commencement) Order 2000 (SI No 365 of 2000) and it is agreed that this was subsequent to any steps taken in this case. Commencement took place on 20 November 2000.

6. The Minister argued that the transitional provisions under section 28 of the 1996 Act capture the withdrawal made prior to the commencement of the legislation, and transform it into a refusal. Section 28 applies to a person who “before the commencement of this section” had made an asylum application “but a decision in relation thereto had not been made by the Minister”. That application is “deemed to be an application under section 8” of the 1996 Act and any “step taken by the Minister before such commencement … shall be deemed to have been taken under this Act.” Further, section 28A(1)(b) provides that in relation to such an application, which is a deemed application under section 8, “this Act … shall apply to the application.” Further, since the 1996 Act, as quoted, was later amended, as the numbering implies, such an application is deemed to have been made after the commencement of the Immigration Act 2003. This provides that a withdrawn application is to be deemed to be one refused by the Minister. Consequently, it is argued that section 17(7) of the 1996 Act applies. Whether a statutory provision applies retrospectively depends upon the express wording of the legislation or upon the necessary construction of the enactment as a whole; Sweetman v Shell [2016] IESC 58. Where the terms of the legislation are express, as here, then retrospectivity is the will of the Oireachtas, subject only to constitutional considerations. But, what is of prime concern here is whether as of the commencement of the 1996 Act, which happened after the quoted letter in November 2000, there was any such application for refugee status in place.

7. In the High Court, Humphreys J held that an application for political asylum could never be simply withdrawn at the behest of one party to the process. This required, he held, solemn procedures. At paragraph 59 he stated:

In any event, I consider that the withdrawal of an application is not automatically a unilateral act, and in this context, the withdrawal required an acceptance by the Minister of the withdrawal. By way of analogy, a party having made an application to the court cannot simply withdraw unilaterally, and in certain circumstances the court might refuse liberty to withdraw. Another analogy might be parliamentary procedure, where under the standing orders of each House of the Oireachtas, leave of the house is required for a member to withdraw an amendment, once it has been moved. In all of these contexts, and in the context of the 1996 Act, a “wish to withdraw” is not an actual withdrawal.

For my part, I would think that an applicant applying under either a non-statutory or a statutory scheme for a benefit personal to him (in this instance, an asylum application) is perfectly free to withdraw that application at any time without the necessity for leave, unless the requirement in respect of leave was stipulated by either the express terms of the administrative scheme or (as the case may be) the relevant statute. Nor do I find either references to court or parliamentary procedures particularly helpful, because in those instances the necessity for leave is specifically provided for (see, e.g., Ord. 26, r.1). In any event, in the case of court proceedings, the necessity in some instances for leave of Court is quite obviously designed to safeguard the interests (particularly the costs interests) of the other parties to the litigation, as the terms of Ord. 26, r.1 itself makes clear.

9. It is difficult to see the sense of an argument that the Minister is entitled to contradict himself in giving a clear representation not by virtue of any statutory power to do otherwise, had that been argued, but rather through reference to the Rules of the Superior Courts. The formalities attendant on the commencement of litigation aid the provision of notice to those responding. Further, even to seek advice on a case that is without merit may involve the expenditure of costs on consulting with a solicitor. As the case progresses, perhaps to drafting a reply or defence or to organising documents or seeking out witnesses, costs increase. Hence, withdrawal from a case is through a formal notice of discontinuance and this involves an undertaking to pay the responding party’s costs. Reference to parliamentary procedures again occurs within a formal context of the promulgation of potential legislation or the positing of questions. Rightly, this is controlled as to when such steps may be taken and when withdrawn. The consideration of asylum claims is not a system characterised by adversarial steps but by the fundamental duty to seek out and determine the nature of the threat alleged by an applicant and by the duty not to return someone to a country which poses a threat to the life or freedom of the individual concerned; section 5 of the 1996 Act, prohibition on refoulement.

10. What characterises the steps taken here is of an application being made by a person claiming refugee status and subsequently changing his mind and considering that his chances of staying in Ireland are better by reason of his parentage of an Irish child. As it turns out, the applicant has been deported to his country of origin and there is no complaint of persecution at the present time. Perhaps a complaint of this nature might be made should he be allowed to return. As of the inception of the 1996 Act and the various amendments to it, the applicant was no longer a person seeking refugee status but was instead a person who had once made such an application and then withdrawn it within a short time. He had instead the status of a foreign national seeking to immigrate. There was therefore no application to refuse or to be deemed to be refused notwithstanding withdrawal when the 1996 Act commenced in November 2000. Retrospectivity in terms of provisions brought into force after the commencement of the 1996 Act may apply to an existing statutory regime but it does not apply here since there was then nothing to be retrospective about. Fundamentally, therefore, the reasoning of the Court of Appeal was correct.

Steps leading to deportation

11. In February 2001, Khalid was granted residency in the State by reason of the Irish child in his family. It was only in September 2003 that the Immigration Act 2003 was fully commenced, introducing the provision previously referred to that a withdrawn asylum claim would amount to a formal refusal of refugee status. In June 2009, Khalid was issued with a passport for his country of origin. A year later, one of his children was detained in a Middle Eastern country. Three years later, in 2013, a child of his died fighting in the Syrian civil war. That year, the wife of Khalid returned to his country of origin with two of their children and thereafter there was a series of journeys back and forth to Ireland by them. Meanwhile Khalid’s residency permission in the State had been renewed periodically but by August 2014, this had expired and he took no steps towards regularising his status. Late in 2014, nonetheless, he received a renewed passport from his country of origin. Khalid in January 2015 went to the Garda National Immigration Bureau, formerly the Aliens Office, and asked to renew his leave to stay in the State. By then his Irish child had been in a Middle Eastern country for a considerable time and he was asked to clarify the situation of his family. In February 2015, he returned to the Bureau with his Irish born child but his permission was not renewed. On 18 February 2015, Khalid’s solicitors wrote to the Minister and sought renewal of permission to remain in the State. The following month, he received a proposal to deport him. The underlying reason given was that he was believed to be an organiser for Daesh or Islamic State. He sought leave to remain on humanitarian grounds under section 3 of the Immigration Act 1999 and also claimed a right to reside on what might loosely be called Zambrano grounds; that is a right to remain in an EU country based on the fact that a member of the family, in this case the Irish child, was an EU citizen; see Zambrano v Office National de l’Emploi Case C34/09 [2011] ECR I-1177. Khalid also claimed that an older surviving son was detained in his country of origin and then released with an obligation to report to the authorities in that country on multiple occasions in 2015 and 2016.

12. On 8 April 2015, the solicitors for Khalid wrote to the Refugee Applications Commissioner and sought a declaration that he was a refugee. The letter also argued that section 17(7) of the Refugee Act 1996, providing for the consent of the Minister where a prior application had been refused, was legally irrelevant. Section 17(6) and (7) should now be quoted and provide:

(6) The Minister may, at his or her discretion, grant permission in writing to a person who has withdrawn his or her application or to whom the Minister has refused to give a declaration to remain in the State for such period and subject to such conditions as the Minister may specify in writing.

(7) A person to whom the Minister has refused to give a declaration may not make a subsequent application for a declaration under this Act without the consent of the Minister.

14. These proceedings were commenced by way of judicial review, with leave granted by MacEochaidh J on 23 November 2015, seeking a declaration that Khalid was entitled to apply for a declaration of refugee status under section 8 of the 1996 Act and also seeking an order of mandamus that the application be considered. A week later Khalid learned that his son had again been detained in his country of origin, but the Minister may not have been informed of this. On 30 November 2015, the Minister made a deportation order. This was supported by what the judge in the High Court described as “forty pages of reasoned analysis, which is certainly one of the most detailed and extensive analyses supporting a deportation” that he had seen. On 21 December a new judicial review was commenced, with leave given by MacEochaidh J, challenging the deportation order and an interim injunction was granted. There were then applications to the Court of Appeal and the European Court of Human Rights. The details are not now relevant. Ultimately, the High Court in judgments dated 24 June 2016 and 29 July 2016 refused the reliefs sought; [2016] IEHC 377 and [2016] IEHC 475. On foot of this, Khalid was deported on 6 July 2016.

Mootness

15. By reason of that deportation the proceedings are said to be moot. The Minister argues that no practical benefit can arise from the determination of this Court one way or another in favour of or against Khalid. “A case is moot, and hence not justiciable, if the passage of time has caused it completely to lose its character as a present, live controversy of the kind that must exist if the Court is to avoid advisory opinions on abstract propositions of law”; per Hardiman J in G v Collins [2004] IESC 38, quoting Hall v Beals (1969) 396 US 45. In Irwin v Deasy [2010] IESC 35, Murray CJ explained the rationale behind the law thus:

The general practice of this Court is to decline, in principle, to decide moot cases. In exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance, the Court may in the interests of the due and proper administration of justice determine such a question.

However, the discretion to hear an appeal where there is no longer a live controversy between the parties should be exercised with caution, and academic or hypothetical appeals should not be heard. Exceptions may only arise where there is a question of exceptional public importance at issue and there are special reasons in the public interest for hearing the appeal.

16. Where, as between the parties to litigation, proceedings have been rendered moot by the time an appeal comes on for hearing, as a general principle, an appellate court should decline to proceed to hear and determine the matter; Murphy v Roche [1987] IR 106, see the judgment of Finlay CJ at 110. There are, however, exceptional circumstances where a moot appeal may still be heard. Thus, where one or both parties have a material interest in a point of law of exceptional public importance, the court may, in the interests of the due and proper administration of justice, determine a spent point; Irwin v Deasy. An exception may also arise where the case can genuinely be regarded as a test case; Okunade v Minister for Justice [2012] 3 IR 152. Where a decision in a case affects a significant number of other cases, an appellate court may nonetheless hear a moot point: O'Brien v PIAB (No 2) [2007] 1 IR 328 and Lofinmakin (a minor) & Ors v Minister for Justice [2013] IESC 49.

17. It is more than unlikely that this case could influence the outcome of others on a legal basis. The circumstances are unique. But the issue of whether there is a practical benefit to a decision remains.

18. Sections 8 and 9 of the Refugee Act 1996 operate on the premise that a person fleeing persecution will hardly hesitate to declare their presence in Ireland and to make a claim for refugee status. Hence, section 8 refers to a person who “arrives at the frontiers of the State seeking asylum in the State or seeking the protection of the State against persecution”. Under the legislation, such a person is to be interviewed by an immigration officer and in that context may apply “to the Minister for a declaration” that he or she is a refugee. Airports are deemed to be frontiers of the State. As a matter of practice, those who come to the Refugee Applications Commissioner, now the International Protection Office, or the police at some remove from arriving in Ireland are treated as making an application in accordance with section 8. Delay, however, risks undermining the credibility of whatever account may be given by an applicant but all of that depends on the circumstances.

19. Once an application is made, then section 9 provides that such a person “shall be given leave to enter the State by the immigration officer concerned.” Such an application may end by being withdrawn, decided in favour of an applicant or against him or her. Up to the determination, section 9(2) provides that “a person to whom leave to enter the State is given … or an applicant … shall be entitled to remain in the State until” the occurrence of the events then listed; including refusal, transfer to another country under the Dublin Convention, or withdrawal of the application.

20. It follows that if Khalid had made an application which was valid, he would have the benefit of that subsection. Hence, the case is not moot.

21. A point arises which is of the essence for the smooth functioning of the asylum and international protection system. Some may perhaps complain about delay in processing and about the inventiveness of taking every possible point with a view to slowing the system down. The legislation provides for parties to move with dispatch and it is right from the point of effectiveness in operating international protection that points should be taken as and when they arise. Courts should not allow the system to be bypassed and for collateral attacks to be taken at a time when the entitlement to challenge a decision by judicial review has passed.

Judicial review

22. A judicial review can be taken in relation to administrative steps. The theory is all very well, but where a system is held up by endless judicial reviews, there is no sense that the purpose of the underlying legislation is being fulfilled. It is the duty of those appearing for applicants and for State parties to act so as to make the system work efficiently and speedily. Coherence is brought to the system, providing for a situation where both the State parties operating international protection and those applying for leave on asylum or subsidiary protection grounds, by section 5 of the Illegal Immigrants (Trafficking) Act 2000. The object of this section is that a review of points that are claimed to arise should be taken through the mechanism of judicial review in the High Court and within fixed time limits. Hence, the section generally provides that a “person shall not question the validity” of particular decisions “otherwise by way of an application of judicial review under Order 84 of the Rules of the superior Courts”. That carries a three month time limit. While the section listed 14 such decisions, among them is a refusal under section 17(7). This is not a question of an appeal on a matter of fact, where rehearing an issue will cure any defect, but is instead concerned with decisions of law that are part of the process. There can be no question of bypassing the statute by reserving a point. Rather, if a point of law exists, it must be taken as and when it arises. Hence, as of the refusal by the Minister for consent to re-enter the asylum process on 17 June 2015, the applicant had a point which he was obliged to litigate through judicial review. Instead of doing that, effectively a collateral attack was mounted through seeking a declaration that Khalid was entitled to apply under section 8. Further, on 21 December 2015 another judicial review was mounted which had the effect of attacking the deportation order of 30 November 2015. This was done on the basis that since the applicant had no permission to remain in the State, his application having been declared inadmissible by virtue of the Minister’s decision, he proposed to challenge that decision by way of these collateral proceedings. In fact the issue goes back much earlier, since as of 9 April 2015, his application seeking refugee status had been refused by the Refugee Applications Commissioner. This was also a step in the proceedings which should then have been challenged.

Collateral attack

23. Where a statute lays down a standard procedure for challenge to a decision, space for deviation from what the legislature has decreed may not be present. In the neighbouring jurisdiction, collateral attack on an administrative decision became easier in consequence of the decision in O’Reilly v Mackman [1983] 2 AC 237. That much considered decision could be regarded as introducing procedural rigidity into challenges by way of judicial review. As is well-known, it was not followed in this country. Judicial review remedies can be sought through plenary proceedings but with the necessary modification that the time limits within the Rules of the Superior Courts were applied analogously; see O’Donnell v Dún Laoghaire Corporation [1991] ILRM 301. Where, in the neighbouring jurisdiction, a decision was made by a local authority, for instance designating an activity such as smoking in a public space illegal, a later prosecution could result in the defendant challenging the order collaterally. The very rigidity of the O’Reilly v Mackman decision had the consequent effect of procedural flexibility as to subsequent events that might need to challenge the underlying law. These exceptions are set out in De Smith’s Judicial Review (8th edition, London, 2018) at paragraph 3-132. Undermining legal contextual foundations to subsequent enforcement proceedings requires no further discussion than that already given in this Court’s decision in Dún Laoghaire Rathdown County Council v West Wood Club Ltd [2019] IESC 43, Charleton J dissenting.

24. While that decision added to the existing range of exceptions to the general rule that an administrative decision must be challenged as it is promulgated, the statutory context is central to the application of any bar through not allowing collateral challenge. There are circumstances where people are entitled to know where they stand and that a permission, or other enabling instrument, can be taken as valid because it was not challenged. That principle is of general application to the administration of such difficult and sensitive areas as the grant of refugee status. Were it to be the case that the State, dissatisfied with an analysis whereby an immigrant had been granted refugee status by the Refugee Appeals Tribunal, the time limits and mode of process through judicial review would just as much apply as these constrictions on litigation bind those refused. The analogy with planning permission is that a person granted development consent is entitled to act on the legal authority set up by statute and that where time limits have passed, exceptional circumstances apart, collateral challenges are inadmissible; KSK Enterprises v An Bord Pleanála [1994] 2 IR 128 at 135.

25. Instead of challenging the relevant decisions under the appropriate statutory procedure, Khalid sought declaratory relief the exclusive effect of which was to collaterally seek to undermine a legal status that required to be then judicially reviewed. Both the High Court and the Court of Appeal found that this was inadmissible. There were no exceptional circumstances justifying in any way a departure from the generally applicable rule. Those decisions are correct.

26. In Nawaz v Minister for Justice [2013] 1 IR 142, the applicant issued plenary proceedings challenging the entitlement of the State to deport non-nationals. Since the applicant was subject to a deportation order, by statute his entitlement to proceed against a deportation decision under section 3 of the Immigration Act 1999 was constricted by section 5 of the Illegal Immigrants (Trafficking) Act 2000. This provided, as it does in this case under appeal, that only judicial review conducted within the time limits prescribed by Order 84 of the Rules of the Superior Courts was available to challenge deportation decisions. Since the applicant was outside the relevant time limit, a plenary action was commenced in its stead. Clarke J for the Supreme Court held that such a collateral attack could not be permitted. To do so would be to undermine the statutory scheme applicable to establishing status within the international protection system. His primary analysis was whether the substance of the challenge mounted consisted of an attack on a decision that section 5(1) of the 2000 Act had ordained could only proceed by way of judicial review. Those plenary proceedings were to do just that. At pages 160-161 he stated:

The only purpose of Mr. Nawaz questioning the constitutionality of s. 3 of the 1999 Act is so that any measures which might be adopted under that section will be regarded as invalid. If Mr. Nawaz were not exposed to the risk of orders being made under s. 3 then he would, of course, have no locus standi to challenge the constitutionality of the section in the first place. It is only because he is exposed to such orders (dependent on the Minister's decision on humanitarian leave) that he could have locus standi. However, that very fact seems to me to place Mr. Nawaz in a category where it can be said that the only purpose of his constitutional challenge is to render any such measures as might be adopted by the Minister invalid. It is a pre-emptive strike designed to prevent the Minister from making a deportation order at the same time as communicating a decision to decline humanitarian leave (assuming that such be the Minister's decision). It seems to me that such a pre-emptive strike is clearly one designed to question the validity of any order which might be made.

In the absence of considered argument and reference to authority in the High Court, it is undesirable that this Court should play the effective role of a court of first instance by determining generally on this appeal whether and to what extent the doctrine of estoppel has a role to play in the field of the relations in public law between an individual and a planning authority. That will have to be determined, on full consideration of the law, by the High Court in this or another case.

Nonetheless, in the very narrow terms in which the supposed principle of estoppel was expressed in the terms of the preliminary issue directed and determined by the High Court, it seems clear … that it cannot be sustained. If a proposed development is, in fact and in law, an exempted development, no principle has been identified whereby the owner of land should be estopped from asserting the exemption merely by reason of the fact, and by nothing more, that he or she has made a perfectly proper and lawful application for planning permission. That would be to deprive him of a right at law by reason of his exercise of a different right, which would require cogent justification. There could be many perfectly good and even laudable reasons for taking the course of applying for a planning permission, where there is an arguable case for exemption. It might be done through oversight or mistake or merely through an abundance of caution or to ensure that the planning situation was very clear on the sale of a property.

30. Here, the underlying legislative purpose is the construction of a code for the assessment of claims of persecution which require international protection in Ireland. While the actual procedures have changed following the passing of the International Protection Act 2015, it is clear that the legislation which preceded it that is in issue on this appeal involves a series of steps for ascertaining, with the cooperation of an applicant, whether there are circumstances whereby the State should offer asylum to non-nationals, or should not return a non-national by reason of the need for subsidiary protection. All of these steps, including enquiry, appeal, a proposal to deport, representations concerning subsidiary protection, an order to deport or the granting of humanitarian leave to remain, take time. While the 2015 Act has streamlined many of these and while it is the duty both of the State and of applicants and their legal representatives to operate the legislation so as to ensure fair disposal of cases, no lesser considerations apply under the legislation relevant to this appeal. As each step was taken, the possibility of invoking judicial intervention presented itself. The availability of an appeal on fact is a different consideration. But where judicial review is declared the sole remedy and is bounded by particular time limits, then as each step is taken and a judicial review point presents, an applicant cannot proceed to any subsequent step, take issue with it and proceed to a collateral attack on an earlier decision. The implications of each step in the procedure are clear. As to the method and manner of seeking the intervention of the High Court, the legislation mandates only that specific decisions should be challenged as and when they arise.

Result
31. In the result, what is involved in this appeal is an impermissible collateral attack on an earlier step in proceedings which should then have been challenged. No indication is possible as to whether any successful outcome could have been anticipated if those steps had been taken. What is not possible in the code of legislation dealing with international protection is a later challenge which has the guise of a separate argument, but which in substance is an attempt to undermine a decision that is within the limits of the boundaries whereby it may be challenged, but was not then challenged. The judgment of the Court of Appeal should therefore be upheld.