Supporting Documents:
 
THE SUPREME COURT
DETERMINATION J.N.E. Applicant AND
The Minister for Justice and Equality, The Refugees Applications Commissioner, Ireland and the Attorney General Respondents
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES I.E., AN APPLICATION TO APPEAL TO THE SUPREME COURT FROM THE HIGH COURT.
RESULT: The Court refuses the applicant leave to appeal directly from the High Court to this Court.
REASONS GIVEN:
1. This determination relates to an application for leave to appeal to the Supreme Court from an judgment of the High Court, made on the 14th November, 2016, the judgment refusing certificate to appeal delivered on the 20th February, 2017, and the order perfected on the 29th March, 2017.
2. J.N.E., the applicant, referred to as “the applicant”, seeks leave to appeal to this Court from the said judgments of the High Court.
3. The Minister for Justice and Equality, The Refugees Applications Commissioner, Ireland and the Attorney General, the respondents, are referred to collectively as “the respondents”.
Jurisdiction
4. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution.
5. Article 34 of the Constitution provides for the public administration of justice; describes the courts established by the Constitution, and those which may be established by law; provides for the full and original jurisdiction of the High Court; establishes the Court of Appeal under Article 34.2.
6. Article 34.5.3° provides as follows:-
“The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decision of the Court of Appeal, if the Supreme Court is satisfied that:
(i) the decision involves a matter of general public importance, or
(ii) in the interests of justice it is necessary that there be an appeal to the Supreme Court.”
7. Article 34.5.4°, on the other hand, provides:
8. It is not necessary for present purposes to enter into a detailed consideration of the proper interpretation of the criteria specified for an “ordinary” appeal from the Court of Appeal to this Court save to note that the relevant decision of the Court of Appeal must either involve a matter of “general public importance” or there must be some other reason requiring that the interests of justice be met by an appeal.
9. The criteria, under Article 34.5.4°, for a leapfrog appeal, include, but are not confined to, both of those matters, for it is specified that it is a pre-condition for this Court to grant leapfrog leave either that the relevant decision of the High Court involves a matter of general public importance or that the interests of justice require such an appeal.
10. In order for this Court to grant leave to bring a leapfrog appeal, it must be the case that the issues raised are such that they would justify granting leave for a second appeal from the Court of Appeal to this Court, had the course of action of an appeal to the Court of Appeal been adopted by the appellant. Therefore, the basic constitutional threshold of general public importance or the interests of justice, which must be met in respect of an application to bring an ordinary appeal from the Court of Appeal to this Court, must also be met in the context of a leapfrog appeal.
11. The additional requirement which must be present, in order that leapfrog leave be given, is, in accordance with the words of Article 34.5.4° “that there are exceptional circumstances warranting a direct appeal to” this Court.
12. The decision of the Supreme Court under Article 34.5.6 is, in all cases, “final and conclusive”.
13. The Rules of Court are set out in the amended Order 58 of the Rules of the Superior Courts.
No precedential value
14. The Court considers it desirable to point out that a determination of the Court on an application for leave, which is final and conclusive as far as the parties are concerned, is a decision in relation to that application only. The decision is whether the question, or questions, raised, and the facts underpinning them, meet the constitutional criteria for leave. Save in the rarest of circumstances, it will not be appropriate to rely upon a grant or refusal of leave as having a precedential value in relation to the substantive issues or in the context of different cases. Where leave is granted, any issue canvassed in the application will, in due course, be disposed of in the substantive decision of this Court.
Background facts and procedural history
15. The applicant came to Ireland from Nigeria in September, 2015, and on arrival was refused entry at Dublin Airport. She was conveyed to the Dóchas Centre where she applied for asylum. Following interviews with the Refugee Applications Commissioner her application was refused in a decision sent to the applicant on 23rd August, 2016. The applicant sought to challenge the Commissioner’s decision by way of applying for judicial review, rather than an appeal to the Refugee Appeals Tribunal.
16. On the 5th October, 2016, the applicant applied for leave to seek judicial review of the Commissioner’s decision. The High Court (Humphreys J.) delivered judgment on the 14th November, 2016, holding that the application for leave to seek judicial review be refused.
17. The applicant applied to the High Court for leave to appeal the decision of the 14th November, 2016, to the Court of Appeal. Judgment was delivered by the High Court (Humphreys J.) on the 20th February, 2017, in which leave to appeal was refused. It was held that the points raised in the application were not of exceptional public importance such that it was in the public interest there be an appeal to the Court of Appeal.
The reasons put forward by the applicant as to why the Supreme Court should grant leave to appeal
18. The reasons submitted by the applicant as to why this Court should grant leave to appeal are set out in detail in her application for leave and notice of appeal document, which is available with this determination on the Courts Service website.
19. In summary, the applicant contends:
(i) It is of general public importance and in interests of justice that it be determined:- “can a first-instance international protection decision-maker in applying a statutorily mandated definition apply a specific pre-ordained deliberately applied modus operandi that operates to decline to make findings concerning certain elements of the test where two of seven relevant statutory criteria are not satisfied?”
(ii) It is also of general public importance and in interests of justice that it be determined:- “is a first-instance international protection decision-maker obliged to apply the correct standard of proof to its decision notwithstanding that there is an appeal from that decision to another body?”
The reasons put forward by the respondent as to why the Supreme Court should grant leave to appeal
20. The reasons submitted by the respondent as to why this Court should not grant leave to appeal are set out in detail in the Respondent’s Notice document which is available in redacted form with this determination on the Courts Service website. In summary, the respondent contends:
(i) The rights of the applicant were not impaired by the procedure adopted by the Refugee Applications Commissioner for determining first instance applications for refugee status. The applicant’s right of appeal was and is maintained.
(ii) The second issue raised by the applicant does not arise out of the judgment in the Court below and therefore it would not be appropriate to grant leave on an issue not decided in the Court below.
(iii) It is not in the interests of Justice that there be a further hearing of the issues identified by the applicant. The High Court determined there were no substantial grounds upon which leave to seek judicial review should be granted.
Decision
21. The applicant had a right of appeal from the Commissioner to the Refugee Appeals Tribunal. She did not take this route.
22. The applicant, instead, appealed for leave to appeal by way of judicial review.
23. The High Court determined that there were no substantial grounds upon which leave should be granted to seek judicial review.
24. Subsequently the High Court refused a Certificate for leave to appeal to the Court of Appeal.
25. In all the circumstances, the Court considers that the applicant has not identified a point of law of general public importance, or raised any matter requiring that leave to appeal to the Court be granted in the interests of justice, let alone established that there are exceptional circumstances such as to establish that the criteria for leave to appeal directly from the High Court to this Court. Consequently the Court finds that the applicant has failed to meet the criteria established in the Constitution.
26. Accordingly, the Court refuses leave for the applicant to appeal under Article 34.5.4° of the Constitution.
And it is hereby so ordered accordingly.
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