Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF SECTION 21 OF THE REFUGEE ACT 1996

RESULT: The Court does not grant leave to the Appellant / Applicants to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 2nd October, 2018

DATE OF ORDER: 2nd October, 2018

DATE OF PERFECTION OF ORDER: 8th March, 2019

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 27th March, 2019 AND WAS IN TIME.

General considerations

1 The general principles applied by this court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment, have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134, (Unreported, Supreme Court, 6 December 2017) and in a unanimous judgment of a full court delivered by O’Donnell J. in Quinn Insurance Ltd. v. PricewaterhouseCoopers [2017] IESC 73, [2017] 3 I.R. 812. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2 Furthermore, the application for leave filed and the respondent’s notice are published along with this determination (subject only to any redaction required by law), and it is therefore unnecessary to set out the position of the parties in any detail. No aspect of this ruling has precedential value as a matter of law.

Decision

3 These cases concern identical decisions made by the respondent Minister pursuant to s. 21(1)(h) of the Refugee Act 1996 (as amended) (“the 1996 Act”) to revoke the refugee status granted to the applicants pursuant to recommendations made on appeal by the Refugee Appeals Tribunal (“the RAT”) on 24 July 2006. At the time the applicants entered Ireland they were unaccompanied teenagers. The ground of revocation was the Minister was satisfied that the applicants had provided information during the asylum process that was false and misleading.

4 The basis for the Minister’s decision emerged from an investigation carried out when one of the applicants sought a declaration of citizenship in 2011. The information which emerged as a result of inquiries made was that the fingerprints of the applicant matched those of a Tanzanian citizen. The applicant had sought refugee status on the basis that he was a Somali national. A further investigation had the same outcome in respect of the other applicant. It should be said that the original application for refugee status was refused by the Office of the Refugee Appeals Commissioner (“the ORAC”) on the grounds of credibility but was granted on appeal by the RAT.

5 The applicants were informed by the Minister of a proposal to revoke their declarations of status as a refugee. Each applicant was given the opportunity to make representations and availed of it through the services of a solicitor. There was a comprehensive exchange of submissions and information. Ultimately the applicants were informed of the Minister’s decision to revoke the declaration in July 2012. The applicants invoked their right to appeal to the High Court against the decision pursuant to s. 21(5) of the 1996 Act. The High Court (Stewart J.) dismissed the appeal (see [2017] IEHC 163), and the Court of Appeal (Hedigan J.; Birmingham P. and Edwards J. concurring), in turn, dismissed the appeal against the decision of the High Court (see [2018] IECA 303).

6 The applicants now seek to appeal to this court and identify the following issues which, it is contended, meet the constitutional threshold. First, it is submitted that the critical information received in respect of each applicant was received through the invocation of the so-called ‘Dublin system’ for the exchange of information between countries in respect of asylum seekers. It is contended that the Dublin system cannot be used for the rechecking of information provided on an application in the context of naturalisation proceedings. It should be noted that the court has recently given judgment on this area in B.S. v. Refugee Appeals Tribunal [2019] IESC 32, (Unreported, Supreme Court, 22 May 2019). The applicants sought to raise this point only in legal submissions delivered (out of time) a matter of days before the High Court hearing. The High Court refused to permit the applicants to raise the point because it had not been pleaded in advance. It is argued by the applicant that this decision was erroneous, first, because it is said the provisions of O. 84C of the Rules of the Superior Courts which govern statutory appeals do not provide for formal pleadings, but rather require an application to be brought by notice of motion and affidavit. Second, it is contended that both the High Court and Court of Appeal were wrong to conclude that the onus of proof on the appeal lay on the applicants. This, it is suggested, was inconsistent with Article 14(2) of the Directive 2004/83/EC (“the Qualification Directive”) requiring a demonstration on an individual basis that the person concerned has never been a refugee. The applicants also rely on para. 34 of the UNHCR Note on the Cancellation of Refugee Status (22 November 2004), which states that, as a general principle, the onus to show the refugee status should be cancelled normally rests on the authority which reviews the initial decision. It is suggested that the Court of Appeal, in endorsing the decisions in Hussein v. Minister for Justice and Equality [2014] IEHC 130, (Unreported, High Court, Mac Eochaidh J., 18 March 2014) and T.F. (Nigeria) v. Minister for Justice and Equality [2016] IEHC 551, (Unreported, High Court, Stewart J., 29 July 2016) was coming to a contrary conclusion to the earlier decision of the High Court in Adegbuyi v. Minister for Justice Equality and Law Reform [2012] IEHC 484, (Unreported, High Court, Clark J., 1 November 2012), at para. 42.

7 It is perhaps important to note that the issue raised in respect of the information obtained and used in the revocation process does not directly raise any question of the lawfulness or the appropriateness of the use of that information or any question of the admissibility of evidence in the High Court. The basis of the High Court and Court of Appeal’s decisions on this point was that the applicant had not raised the issue in submissions to the Minister and had not raised it by way of the procedure set out for the statutory appeal, but rather had only raised it in written submissions delivered late, and shortly before the proceedings were due to commence. It is clear that the procedure adopted envisages that the issues will be raised by way of the documentation commencing the statutory appeal, and indeed a large number of points of appeal were raised by the applicants in this way. It is also possible to seek to amend those proceedings. Finally, the principles governing the decision of a judge whether to permit a matter to be raised and agitated which has not been formally notified or pleaded are well known, and there is, in any event, an area of discretion afforded to any trial judge. However, the question of whether the trial judge here was right to refuse to permit the matter to be addressed was a matter in the first place for the High Court, and thereafter for appeal to the Court of Appeal. It is not for this court to review the correctness of those decisions, or to express any view upon them. The application raises no issue of law of general importance which requires an appeal to this court.

8 The issue raised in relation to the burden of proof is largely of academic interest, with little practical consequence in general in this case. The outcome of the decision which is sought to appeal is that the Minister must have the burden of being satisfied that the refugee status should be cancelled, but on an appeal to the High Court, the applicant has the onus of showing that the Minister was wrong. In this case, it means that the Minister must be satisfied that the refugee status should be revoked, and if not so satisfied, must not do so, and on appeal the applicant must merely show that the Minister could not have been, or should not have been, satisfied. The question of on whom the burden of proof lies is principally related to the obligation to adduce evidence, and the position which would arise if either no evidence is adduced, or if the matter is equally balanced. In either case, the party having the burden of proof would fail. It does not appear that it was, in any event, at all decisive in this case. The High Court held at para. 36 of its judgment that the evidence could lead to no other conclusion but that the RAT would have decided the appeal against the ORAC’s decision differently had all the information been put before it, and the Court of Appeal decided at para. 86 of its judgment that the reality of the case was that the applicants gave false and misleading information in their application for asylum, and that the Minister had ample grounds upon which to revoke the declaration of refugee status. It does not appear that there is any incompatibility between the decisions in Hussein and T.F. (Nigeria), on the one hand, and Adegbuyi, on the other, which would require that an appeal be brought to this court. It is true that in Adegbuyi, a comment is made at para. 42 that the Minister must establish matters on the appeal, but that was not part of the ratio of the case and does not appear to have been argued as a ground in that case. In the circumstances, the court does not consider it raises any issue of general public importance which requires an appeal to this court.

9 Since the matters to which the grounds of appeal relate concern pleadings and the burden of proof, they were issues of national procedural law, and it is not considered that any issue of European Union law is raised which would require a reference to the CJEU. Accordingly, leave to appeal will be refused.

And it is hereby so ordered accordingly.