BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

High Court of Ireland Decisions


You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ayaya v. Minister for Justice, Equality and Law Reform [2003] IEHC 7 (2 May 2003)
URL: http://www.bailii.org/ie/cases/IEHC/2003/7.html
Cite as: [2003] IEHC 7

[New search] [Context] [View without highlighting] [Printable RTF version] [Help]


Ayaya v. Minister for Justice, Equality and Law Reform [2003] IEHC 7 (2 May 2003)
    THE HIGH COURT

    [2002 No. 284 J.R.]

    BETWEEN

    KENNEDY AYAYA

    APPLICANT

    AND

    THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND REFUGEE APPEALS TRIBUNAL (TRIBUNAL MEMBER, MR. JIM NICHOLSON)

    RESPONDENTS

    JUDGMENT of Ms. Justice Finlay Geoghegan delivered the 2nd day of May 2003.

    The applicant herein has issued an originating notice of motion pursuant to s. 5 of the Illegal Immigrants Trafficking Act, 2000, seeking leave to apply for judicial review of a decision of the first named intended respondent ("the Minister") of 7th

    May, 2002, to refuse refugee status; a recommendation of the second named respondent of the 22nd February, 2002 and a decision of the tribunal member of 22nd January, 2002, to that effect. The application for leave has not yet come on for hearing.

    In the meantime the applicant also issued in the proceedings commenced by such originating notice of motion a separate notice of motion seeking discovery of certain documents from each proposed respondent pursuant to Order 31 Rule 12 of the Superior Court Rules. This judgment is on the discovery application.

    This application for discovery raises the issue as to the principles according to which discovery ought to be granted in an application brought pursuant to s. 5 of the

    -2-

    Act of 2000 but prior to the granting of leave to apply for judicial review.

    Nature of documents sought

    Whilst the letter sent by the applicant's solicitor pursuant to Order 31, Rule 12 of the Superior Court Rules and the notice of motion seeks a greater number of documents, at the hearing, the application was confined to the following category of document specified at paras. (a) and (b) of the notice of motion:

    (a) All documents relating, pertaining or containing the details of the total number of decisions reached by each member of the Refugee Appeals Tribunal/Appeals Authority in the period May, 1999 to date and the total number of decisions refusing Refugee Status not affirmed by the first named Respondent pursuant to s.17 Refugee Act, 1996.

    (b) All documents relating, pertaining or containing the total number of decisions recommending refusals of refugee status and the total number of decisions recommending the granting of refugee status by each refugee appeals tribunal and appeals authority member in the period May, 1999 to date."

    The documents sought in the application do not include the documents which were before the intended respondents when they made the decisions challenged. This is important for the following reason.

    Counsel for the applicant submitted that the normal principles relating to discovery should not apply to this application because firstly the respondent is on notice of the application for leave and secondly because if the applicant fails to get leave he will be repatriated which it is submitted is potentially a very serious consequence for him. In such circumstances it is submitted that the applicant must be in the position to make the best possible case on the application for leave and therefore there is an obligation

    -3-

    on the authorities to make available such documents as the applicant considers may assist his case.

    The right of an applicant or potential applicant under s. 5 of the Act of 2000, to obtain access to all the material which was before the decision maker concerned, was considered in a limited context by the Supreme Court in its decision on the Article 26 reference re The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360. The point under consideration was whether the fourteen day period would permit an applicant to obtain access to all the material which was before the decision maker concerned in order to properly evaluate any possible grounds of challenge. In considering this submission, the Supreme Court stated at p. 397

    "However, in any event, an applicant, who establishes that his right of access to the courts has been prejudiced by the failure of the relevant State authority to make available material which is appropriate and necessary to enable him to exercise that right, is entitled to apply to the High Court for discovery of documents. Insofar as the submissions of counsel assigned by the court focused on the difficulty of gaining access to such material within the fourteen day period, it is sufficient to say that difficulty in getting appropriate access to relevant material may constitute a good and sufficient reason for extending the time within which to apply for leave to seek judicial review. Difficulty in gaining access to relevant documents in the case of R. v. Stratford-on-Avon D. C. Ex p. Jackson [1985] 1 W.L.R. 1319, was also accepted in that case as a good explanation for part of the delay in applying for leave to seek judicial review. There is nothing in s. 5 restricting an applicant seeking to use the ordinary procedural mechanisms for discovery, with or without the benefit of

    -4-

    an extension of time. The court does not consider that the arguments made afford grounds for calling in question the constitutionality of the section."

    It may be implicit in the above approach of the Supreme Court that an applicant is entitled to obtain access to all the material which was before the decision maker prior to the granting of leave or even prior to the issue of an originating notice of motion. It may also be that, on the principles submitted by counsel, the applicant would be entitled to such material. However that is not the type of material which is sought in the discovery application in this case. Any decision on that issue should, if necessary, be left over for an appropriate case. I think it fair to observe that there has developed a practice in relation to applications under s.5 of the Act of 2000, whereby the authorities make available to potential applicants all the material which was before the relevant decision maker.

    The submission does not appear well-founded in relation to the present application. I do not consider the fact that the respondent is on notice of the application supports the contention that the normal principles relating to discovery should not apply. Further, whilst a decision to refuse refugee status and/or deport is one which may have fundamental consequences for the person involved it is not unique in this respect. Ministers and administrators regularly take decisions with fundamental consequences, including those which concern constitutionally protected rights. There does not appear to be any basis upon which the applicant's right to documents of the type sought in the present application should be different from that of an applicant for judicial review of other decisions with fundamental consequences.

    -5-

    Applications under s.5 of the Act of 2000

    Section 5 of the Act of 2000 requires an application for leave to apply for judicial review of any of the decisions specified in subs. 5 (1) to be made by "motion on notice" to the Minister and any other person specified for that purpose by order of the High Court. Section 5 further requires the application to be grounded in the manner specified in Order 84 of the Superior Court Rules for an ex party motion. Order 84 Rule 20 (2) requires a statement of grounds and an affidavit verifying the facts relied upon.

    There do not exist rules of court which specifically govern such applications. The practice has been to issue an originating notice of motion out of the Central Office of the High Court and serve this together with the proposed statement of grounds and verifying affidavit on the Chief State Solicitor. In many instance it is not clear whether the motion is being served on the Minister alone or on all the proposed respondents. As a matter of practice the Chief State Solicitor instructs counsel to appear on behalf of the Minister and all other intended respondents. This is of some relevance to the identification of the precise proceeding in being prior to the hearing of the application for leave. Section 5 (2) (b) only requires the motion to be on notice to the Minister and any other person who might be specified by order of the High Court. I am not aware of any other person so specified in respect of this application nor of any practice of the High Court to make such orders. Accordingly following the issue of the motion seeking leave to apply for judicial review any proceeding in being is only a proceeding between the applicant and the Minister as the notice party to the application.

    It should be noted that the number of the present application is a "JR" number which normally indicates a judicial review proceeding, there is of course no judicial

    -6-

    review proceeding in being between the applicant and the intended respondents. Leave has not yet been granted.

    Discovery prior to leave

    This application for discovery is brought pursuant to Order 31 Rule 12 (1) of the Superior Court Rules which in its opening sentence provides

    "Any party may apply to the court by way of notice of motion for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his or her possession or power, relating to any matter in question therein."

    The first issue is whether or not the existing application for leave to apply for judicial review is a "cause or matter" within the meaning of Order 31 Rule 12 (1). These terms are defined in Order 125 of the Superior Court Rules where "a matter" is stated to include "every proceeding in the court not in a cause". The application on notice to the Minister as required by s. 5 (2) of the Act of 2000 appears to come within this definition. Following the issue of the notice of motion out of the Central Office it must be a "proceeding in the Court". It is therefore unnecessary to consider whether or not it comes within the definition of "a cause" but on balance I consider that it does not.

    Accordingly an applicant, prior to being granted leave to apply for judicial review under s.5 of the Act of 2000 is entitled to apply under Order 31 Rule 12 (1) for discovery. However for the purposes of Order 31 Rule 12 (1) the relevant proceeding is only the application for leave and, save where the court may have otherwise ordered under s. 5 (2) (b) of the Act of 2000, the only other party to that proceeding is the Minister.

    -7-

    The judicial review proceedings are not in being and the other proposed respondents are not yet parties; therefore any application for discovery against such third party would have to be brought and considered pursuant to Order 31 Rule 29. Whilst the substantive rules according to which an application for discovery against the Minister as a party under Order 31 Rule 12 or another intended respondent under Order 31 Rule 29 may be similar the courts have been restrictive in their approach to the making of orders under rule 29. See Delaney and McGrath, Civil Procedure in Superior Courts, pp. 198-204.

    The next question is how one should determine at the leave stage what a "matter in question" in the application for leave is. In general applications for discovery are not entertained by the courts until after the delivery of a defence or in the case of judicial review, the notice of opposition and the matters in question are determined in the light of those pleadings.

    In all applications for leave to apply for judicial review pursuant to s.5 of the Act of 2000, there will be before the court a statement of grounds and verifying affidavit sworn by or on behalf of the applicant. In some such applications an affidavit may be sworn on behalf of the Minister or a proposed respondent. In many instances, in my experience, such replying affidavit simply sets out more fully than has been done in the applicant's affidavit the relevant process and factual steps which lead to the decision which is being sought to be challenged and will exhibit all the relevant documents in the process. In a very limited number of applications, the replying affidavit may set up a factual dispute with the applicant.

    In the present application, no replying affidavit has been delivered. I was informed by counsel for the Minister that it is not intended to deliver one prior to the hearing of the application for leave. Where no replying affidavit is delivered on the

    -8-

    application for leave, there cannot be any factual issue in dispute between the applicant and the Minister. Counsel for the Minister submitted that discovery should not be granted unless there are factual issues in dispute on the application for leave. I do not agree that discovery should never be granted prior to leave in the absence of a factual dispute but consider that the circumstances in which it should be granted are very limited for the reasons set out below.

    In the absence of a factual dispute, the "matters in question" in such applications for leave must be determined from the statutory scheme, the statement of grounds and verifying affidavit. Section 5 of the Act of 2000 requires the applicant to establish to the satisfaction of the court that there are "substantial grounds" for contending that the decision is invalid or ought to be quashed. Applying this statutory requirement to the normal principles according to which leave will be granted suggests that "the matter in question" on the application for leave is whether, upon the assumption that facts set out in the affidavit sworn by or on behalf of the applicant can be proved, there are as a matter of law substantial grounds for contending that the decision is invalid or ought to be quashed. In Gordon v. Director of Public Prosecutions [2003] 1 ILRM 81 Fennelly J. stated in relation to an ex parte application for leave at p.84

    "... leave to apply for judicial review can be obtained by demonstrating that, if the facts alleged are proved, the applicant has an arguable case in law to obtain the relief he seeks; ..."

    In the context of s.5 of the Act of 2000 "arguable case" must be replaced by "substantial grounds"

    -9-

    Discovery in Judicial Review

    The principles according to which the courts will make an order for discovery in judicial review proceedings are relevant to discovery at the leave stage. As a matter of common sense an applicant who has not yet obtained leave could not have a greater entitlement to obtain documents on discovery than an applicant who has obtained leave. In this jurisdiction, it appears that the principles according to which the courts will determine applications for discovery in judicial review proceedings are the same as those upon which they are determined in other forms of civil actions. In Burke v. Director of Public Prosecutions [2001] 1 I.R. 760 Keane C.J. (with whom the other members of the court agreed) in considering an appeal against a refusal to order discovery of certain categories of documents in a judicial review concluded at p. 764:

    "... I would, on the basis that the category of documents is clear ... conclude that it would be going too far to say that they could not contain any material which would either help the applicant or hinder the respondent."

    This is of course the well-established test derived from Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co. [1882] 11 QBD 55.

    It is however inherent in the nature of judicial review that the necessity for discovery will be more difficult to establish than in plenary proceedings. This follows from the fact that in judicial review at issue is the legality of the decision challenged. In many instances the facts are not in dispute. Discovery will normally but not exclusively be confined to factual issues in dispute. It can be envisaged that an applicant for judicial review may raise a factual issue and whilst not disputed consider that there are documents in the possession of the respondent which would assist in the proof of relevant related facts at the hearing and that a Court would take the view that

    -10-

    discovery of such documents is necessary for disposing fairly of the application for judicial review .. The limitation on discovery in such circumstances is that it must not be considered to be a fishing exercise. It is difficult to state in a general way the precise dividing line but it is clear that it is not sufficient for an applicant simply to make an assertion not based upon any substantiated fact and then seek discovery in the hope that there will exist documents which support the assertion. In R v Secretary of State for Health ex parte Hackney London Borough and Others (Unreported, Court of Appeal, 24th July, 1994) Bingham MR stated in relation to discovery in a judicial review application

    "... I think it is broadly true to say that discovery will be regarded as necessary for disposing fairly of the action, or application, if a party raises a factual issue of sufficient substance to lead the court to conclude that it may, or will, be unable to resolve the issue fairly, fairly that is to all parties, without discovery of documents bearing on the issue one way or the other ... It is not open to a plaintiff in a civil action, or to an applicant for judicial review, to make a series of bare unsubstantiated assertions and then call for discovery of documents by the other side in the hope that there may exist documents which will give colour to the assertions the applicant, or the plaintiff, is otherwise unable to begin to substantiate. This is the proscribed activity usually described as "fishing": the lowering of a line into the other side's waters in the hope that the net may enclose a multitude of fishes, the existence or significance of which the applicant has no rational reason to suspect."

    In the same case Lord Bingham put the test to be met by an applicant in the following terms:

    -11-

    "Have they raised a factual issue of sufficient substance, or adduced evidence which grounds a reasonable suspicion of unlawfulness, such that the application cannot be fairly resolved without discovery?"

    Action for Discovery

    The necessity of factual proof of the alleged wrongdoing prior to being entitled to discovery at the leave stage appears to me to be supported by the principles upon which an action for discovery for the purpose of intended proceedings will be determined . In Megaleasing UK Ltd v. Barrett (No. 2) [1993] ILRM 497 Finlay CJ in relation to an action for discovery alone stated at p.504

    "I am, accordingly, driven to the conclusion that the existing authorities ... confine the remedy to cases where a very clear proof of wrongdoing exists ... "

    There is an obvious sense in which discovery sought at the leave stage is analogous to an action for discovery for the purpose of intended proceedings. If obtained the documents will be used initially to obtain leave and thereafter to assist in obtaining relief in the intended judicial review proceedings.

    Entitlement to documents sought

    The present application for discovery is grounded upon an affidavit of Niall Sheerin, solicitor for the applicant. From it and the submissions made, it appears that the first category of documents sought are sought for the purpose of supporting what

    is described as the applicants "contention" that the Minister in making the decision of the 7th May, 2002, to deport the applicant, failed to exercise his discretion pursuant to s. 17(1)(b) of the Refugee Act, 1996 and/or adhered to an inflexible policy rule which

    -12-

    fettered his discretion. That is a ground sought to be relied on at para. 5A of the statement of grounds.

    The verifying affidavit grounding the application for leave is sworn by the applicant. The only statement in that affidavit which relates to ground 5A is as follows:

    "I say and am advised that having regard to the decision of the first named respondent of the 7th May, 2002 to accept the recommendation of the Refugee Appeals Tribunal pursuant to s. 17(1)(b) Refugee Act, 1996, that the first named respondent has a discretion in this matter, which discretion should be exercised and should not be exercised in a manner which appears rigidly to an inflexible policy rule and/or amounts to an automatic rubber stamping of recommendations furnished by the refugee appeals tribunal to the first named respondent."

    The above statement is not evidence of fact of any alleged wrongdoing in relation to the exercise of discretion by the Minister but is simply a repeat of the assertion sought to be relied upon at ground 5A. Accordingly there is at present before the court no factual basis at all for the assertion that the Minister in making his decision of the 7th May, 2002, in relation to the applicant in this case did not exercise his discretion as required under s.17 of the Refugee Act, 1996. Upon the principles already set out the mere making of an assertion upon no factual basis cannot justify the making of an order for discovery.

    Insofar as the second category of documents sought is concerned, the affidavit of Mr. Sheerin makes it clear that the purpose of seeking these documents is to establish as he considers will be the case that the number of appeals allowed by the tribunal member named in the title is considerably lower than other tribunal members.

    -13-

    These documents are stated to be relevant and necessary for the purpose of disposing of the application for leave and that they will assist the applicant in his challenge to the recommendation of the tribunal upon the basis that the hearing before the tribunal member was conducted in breach of the applicant's right to natural justice and fair procedure and in breach of his right to equality of treatment within the asylum system and with inherent bias and prejudgment on the part of the tribunal member. These grounds are relied upon at para. 5D of the statement of grounds.

    The position in relation to this ground may be considered to be different. The applicant in his affidavit does set out in paras. 7 and 8 a number of factual matters relating to the conduct of the hearing including that he has been told that his counsel was not permitted to make argument and representations on his behalf in relation to certain issues. The applicant also states that

    "It was my clear impression that the hearing of my appeal was conducted with an element of bias and prejudgment against me as an applicant for refugee status and I say and believe that I was not afforded an equal opportunity at the appeal hearing before this tribunal member to succeed in my application as compared with other applicants, whose appeal hearings are assigned to different tribunal members."

    Whilst the above statements contain some element of assertion, they also contain statements of fact or conclusions of the applicant based upon his experience at the hearing. As such facts are not disputed, the applicant is entitled to have the application for leave determined by the court upon the basis that the statements of fact are capable of being proved. Accordingly discovery is not necessary to assist at the leave stage in the proof of facts stated. The applicant's affidavit does not contain any statement of fact in relation to the handling of other cases by the tribunal member.

    -14-

    Mr. Sheerin's affidavit grounding the discovery application does. At para. 11 he states:-

    "I say that I have practiced in the area of immigration and refugee law for six years. I have represented applicants for refugee status and/or instructed Counsel in that regard on numerous occasions before the Tribunal Member (formerly Appeals Authority Member), Mr. Nicholson. I have not found him to be fair towards the applicants involved in these appeals and it is my clear impression that the appeal hearings were conducted with an element of pre-judgement and bias. Up to the time of the institution of these proceedings, it is my understanding that the rate of successful appeals before this Tribunal Member (formerly Appeals Authority Member) is significantly and disproportionately lower than the average appeals heard by this Tribunal Member that the disclosure of the documents sought in category b) will assist the Applicant in establishing that the hearing and conduct of his appeal was not conducted in a fair and transparent matter (sic), that he was denied equality of treatment in the asylum process and that the assignment of his appeal to be heard by this Tribunal Member placed him at a disadvantage in the appeal process having regard to other applicants whose appeals are assigned to and heard by other Tribunal Members."

    Even if the above evidence is to be treated as evidence grounding the application for leave insofar as it contains statements of fact, they are not disputed by the respondents. There is therefore no factual issue in dispute between the parties to which the documents sought are relevant. As already stated the applicant is entitled to have the application for leave determined upon the basis that the matters of fact as stated in the affidavit sworn by him or on his behalf are capable of being proved.

    -15-

    Therefore the issue which will have to be determined by the court at the leave stage is whether, assuming the facts relating to the conduct of the appeal hearing insofar as they are deposed by the applicant and the facts in relation to the rate of successful appeals before Mr. Nicholson as compared with other tribunal members as stated by Mr. Sheerin are capable of being proved, the grounds relied on to challenge the decision of Mr. Nicholson constitute a substantial ground as a matter of law. It does not appear to me that the documents sought are necessary for disposing fairly of such issue on the application for leave.

    Accordingly I refuse the application for discovery herein.


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/cases/IEHC/2003/7.html