Wednesday, 3 February 2010

Principle of proportion integrated into judicial reviews

The recent Supreme Court judgment on judicial review means an applicant's fundamental rights must be considered if they are at stake in the decision, writes CAROL COULTER

ASYLUM JUDICIAL reviews have come to dominate the judicial review list, with 785 such cases in 2008, down from 1,024 cases the previous year.

Though preliminary figures for 2009 indicate a further slight fall, it is understandable that there would be concern that any relaxation of the test for admitting judicial reviews would increase these numbers.

This fear was expressed by the two judges who gave minority judgments in the recent Abosede Aunwatoyn Meadows case.

Mr Justice Hardiman and Mr Justice Kearns stated that the existing test for leave to take judicial review proceedings, as outlined in O'Keeffe -v- An Bord Pleanála , should not be modified.

The majority - the Chief Justice, Mr Justice Murray, Mrs Justice Denham and Mr Justice Fennelly - granted Ms Meadows leave to judicially review the Minister's decision, but found this to be compatible with the O'Keeffe judgment.

The Nigerian applicant had challenged a High Court refusal to grant leave for judicial review of a deportation order made after her asylum application had been refused both by the Office of Refugee Applications Commissioner (ORAC) and the Refugee Appeals Tribunal.

The two decision-making bodies, ORAC and the RAT, had concluded that she had not established a credible connection between her circumstances and the threat of female genital mutilation (FGM).

Their decisions had not been challenged, though the decisions of both bodies frequently are the subject of judicial review.

She had then sought leave to remain in the State on humanitarian grounds, arguing her rights under Article 3 of the European Convention on Human Rights (prohibition on torture) were under threat, and that she was at risk of serious assault - FGM - were she to be returned to Nigeria.

She had submitted extensive additional material on incidence of FGM in Nigeria to the Minister for Justice in support of her application to remain on humanitarian grounds.

This argument is separate from an asylum application, where under Section 5 of the 1996 Refugee Act (prohibition of refoulement), a person may be allowed to remain in the State even if they do not qualify for recognition as a refugee if there is a risk to their life or freedom on a number of specified grounds, or a risk of serious assault.

In rejecting her application, the Minister stated that the provisions of Section 5 had been complied with. He did not respond specifically to the material she had submitted, or her claim to be personally under threat.

In challenging the deportation order, her counsel argued that the "anxious scrutiny" test adopted in England should be applied. In a number of English cases since 1987 it was argued successfully that there should be enhanced scrutiny of administrative decisions that impacted on a person's rights, beyond the existing test of "unreasonableness".

Mr Justice Hardiman considered that this would introduce a two-tier standard for judicial reviews, one for cases thought to involve constitutional or other fundamental rights, and a higher or more demanding one for those which did not, where the "unreasonableness" of the decision would have to be established.

He rejected the applicability of "proportionality" to judicial review of a decision of this kind, though he acknowledged it was appropriate to determining whether a statutory provision was compatible with the Constitution. He also rejected the argument that the Minister was required to give detailed reasons for his decision.

Giving one of the majority judgments, Mr Justice Murray considered that it was appropriate to consider proportionality. "Where there are grave or serious limitations on the rights and in particular the fundamental rights of individuals as a consequence of an administrative decision, the more substantial must be the countervailing considerations that justify it."

Citing the Fajujonu case, he stressed that there was nothing new in considering the principle of proportionality in such cases, and that it "may be applied for the purpose of determining whether, in the circumstances of a particular case, an administrative decision may properly be considered to flow from the premises on which it is based and be in accord with fundamental reason and common sense." This was in accordance with the principles of Keegan and O'Keeffe , he said.

Granting leave, he said: "An administrative decision affecting the rights and obligations of persons should at least disclose the essential rationale on foot of which the decision is taken." Otherwise the right of access to the courts to have a decision reviewed would be so circumscribed as to be "unacceptably ineffective".

Mr Justice Fennelly said: "The difficulty posed by the form of the Minister's decision is not merely his failure to provide reason for his decision, though that is undoubtedly the case, but that the decision is defective as a result.

"There is a complaint of a serious risk of exposure to what is arguably an infringement of life or freedom (as defined in section 5 of the Refugee Act, 1995) and nothing on the other side, nothing to explain how the Minister came to the conclusion that the appellant should, nonetheless, be deported.

"The Minister might have had any one of a range of reasons for his decision, but the court simply does not know."

After examining jurisprudence of the European Court of Human Rights on judicial review in relation to the UK experience, and referring to the question posed by the appellant on the adequacy of the O'Keeffe and Keegan test, Mr Justice Fennelly said: "I do not consider it necessary to change the test.

"Properly understood, it is capable of according an appropriate level of protection of fundamental rights."

What this judgment does is explicitly integrate the principle of proportionality into the existing law on judicial review, though Mr Justice Murray stated it was already implicitly there.

It does not provide the basis for challenges to future deportation orders made after a person has sought to remain in Ireland on humanitarian grounds, provided that the application is considered and the reasons for rejecting it are outlined, and it is not a mere rubber-stamping of the earlier refusal of refugee status.

A general statement of policy considerations, or that the relevant section of the Act has been taken into account without saying how, will no longer be sufficient for refusal of leave to remain.

While this will impose additional demands on the Minister's officials, they are not unduly onerous, and will help ensure that the highest and most transparent standards are applied in dealing with asylum applicants.

If they are, it should reduce the number of judicial reviews sought.

Irish Times

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