A Minor Suing by His Mother and Next Friend M. A.

[2017] IELCA 4

THE HIGH COURT

JUDICIAL REVIEW

2009 No 93 JR

IN THE MATTER OF THE REFUGEE ACT 1966 (AS AMENDED), IN THE MATTER OF THE IMMIGRATION ACT, 1999 (AS AMENDED), IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000 (AS AMENDED), AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT, 2003 Section 3 (1)

BETWEEN

M. A. and E.M.

(a Minor suing by his mother and next friend M. A.)

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

ATTORNEY GENERAL

IRELAND

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

RULING ON OBJECTIONS

Introduction

1. By Order of McDermott J., dated 5 September 2014 the Applicant was granted an Order for costs including reserved costs of these Judicial Review proceedings.

The Judicial Review Proceedings

1. The background and issues arising in connection with these proceedings are to be found reported at M.A. And E.M (A Minor suing by his mother and next Friend M.A.) And The Refugee Appeals Tribunal & Others And Human Rights Commission [2014] IEHC 430. In essence the proceedings concerned Judicial Review of a decision which refused to recommend a grant of refugee status to the Applicants. The sole ground upon which the Court granted leave to apply by its Order of 27 July 2012 is to be found at paragraph 1 of the report, which finds;

“The Tribunal Member erred in law by failing to examine and reach a conclusion from a forward looking perspective on the Applicant's claim to be at continuing risk of persecution if returned to Nagorno-Karabakh due to her family background and ethnicity, having regard to country of origin information as to ongoing inter-communal conflict in the country of origin.”

1. This is how matters turned out following the leave to apply Application. The determination on that single issue resulted in the decision of the first named Respondent being quashed. The Applicant obtained an Order of Certiorari and the matter was remitted in full for a rehearing before a different Tribunal member. The limited issue upon which leave to apply does not adequately address the issues that both solicitors and Counsel had to deal with. The grounds upon which relief was sought were set out in the leave notice. There are sixteen grounds advanced as set out in the Statement of Grounds, which will be referred to subsequently. It may perhaps be useful to refer to some of the issues in the within proceedings.

1. The Applicant brought these proceedings on her own behalf and on behalf of her minor son. At the date of the institution of the within proceedings, the Applicant was 27 and the minor was aged 5. The Applicant lived all her life in the disputed territory of Nagorno-Karabakh until she fled Azerbaijan. The Applicant is of mixed ethnicity. Her father is an ethnic Armenian and her mother is Azeri. A pro-Armenian movement had been campaigning in the territory over the past number of decades. Recent country of origin reports indicated that Armenian forces now control most of the area. The Applicant’s parents' mixed marriage attracted significant adverse attention. The Applicant’s father had assisted his brother-in-law (her mother’s brother) to flee the area but his family were killed on ethnic grounds and he had retaliated.

1. Following the killing of the Applicant’s brother on 10 June 2002, the Applicant’s parents and her remaining brother fled to Ireland. Both of the Applicant's parents and her brother were each granted refugee status on appeal to the Refugee Appeals Tribunal. The Applicant had married on 14 May 2002 and resided with her husband. The Applicant advised that Armenian forces had started to call to her house seeking to ascertain the whereabouts of her parents. The Applicant’s father-in-law was hospitalised following a beating and serious threats made in the context of interrogation as to the whereabouts of the Applicant’s parents. The Applicant’s father-in-law believed that the Applicant and her husband should flee immediately. They went to Turkey and remained in Turkey from the end of 2002 until August 2007. It remained too dangerous for the Applicants to remain in Turkey. Despite the Applicant’s difficult financial position a smuggler was arranged to transport the Applicant and her son to Ireland. The Applicants arrived in Ireland on 28 August 2007 and thereafter applied for asylum. The Applicant attended for interview on 13 December 2007 in the context of the Asylum system. The Applicant was informed by letter dated 31 January 2008 issued by the Refugee Applications Commissioner that the Applicant and her son were not to be declared refugees. The Applicant appealed to the Refugee Appeals Tribunal and submitted a copy of the country of origin information and also a copy of the decision of the Tribunal relating to her father.

1. Following an oral hearing on 8 October 2008, by letter dated 19 December 2008 received by the Applicant on about 23 December 2008, the Applicant was advised that her application was unsuccessful.

1. The Applicant believed that the Tribunal behaved in an unreasonably aggressive manner towards her. There was a clear conflict between the Applicant and as is averred in her grounding affidavit the Applicant stated that the Tribunal failed to accurately assess her claim and in particular the inaccurate finding of fact by the Tribunal that in her clear oral evidence to the Tribunal the Applicant's belief “he was sought because he was helping Armenians” was a distortion of the Applicant’s claim. Furthermore the Applicant disputed the conclusions of the Tribunal also and in particular that it made no finding at all in relation to the second named Applicant.

1. The relief sought by the Applicant was an Order of Certiorari quashing the decision of the first named Respondent which affirmed the recommendations of the Refugee Applications Commissioner. An Order remitting the appeal for a fresh determination by a separate member of the Refugee Appeals Tribunal. A declaration pursuant to section 5 (1) of the European Convention on Human Rights Act, 2003 that the rule of law covering the scope of Judicial Review relating to asylum decisions as set out in O’Keefe v AnBordPleanalais incompatible with the European Convention on Human Rights in that the test so afforded fails to constitute an effective remedy for the purposes of Article 13 of the Convention. The grounds upon which such relief was sought was an error of law, errors of fact and misconstruction of the Applicant’s evidence, failure to make any findings in respect of significant details of the first named Applicant’s evidence including evidence of past persecution, a breach of natural and constitutional justice in failing to treat the Applicants in a like manner to other persons in similar circumstances and in particular the parents and brother of the first named Applicant each of whom had been granted refugee status on the basis of like circumstances, errors of law making adverse credibility findings based on conjecture without stating any reason by explanations furnished for perceived inconsistencies were rejected. Errors of law in failing to assess the credibility of the Applicant in the light of country of origin information before it. Errors in law in taking into account the recommendations of the Refugee Applications Commissioner in failing to take into account the asylum claim of the Applicant’s father. Failure to comply with the mandatory requirements set out in part 2 of SI number 424 of 2003 and in particular those set out in Regulations 9 (1) (a) and (e). Errors of law in failing to consider the individual circumstances and fears of the second named Applicant. In the alternative failure to make any findings in relation to the second named Applicant. Acted in breach of fair procedures in failing to have any regard to the principles of the best interests of the child in the manner in which the second named Applicant's appeal was determined. An error of law in taking into account matters irrelevant to the determination of the appeal and/or a failure to take into account relevant considerations. A failure to make an assessment of the facts for the purpose and in the matter mandated by the Refugee Act 1996, the European Communities (Eligibility for Protection) Regulations 2006 and the UNHCR Handbook and thereby acting ultra vires. The Applicant’s human rights would be compromised by the refusal to grant refugee status to the Applicants by the first named Respondent such that they are entitled to a judicial examination of the decisions of the first named Respondent, the reasoning behind the decisions and the evidence upon which the decisions are based. Insofar as the Court was restricted to confining itself to the O’Keeffe test in reviewing the first named Respondent’s decision to refuse the Applicant's refugee status, such a review is inadequate and contrary to the rights guaranteed by the European Convention on Human Rights such as to indicate incompatibility with the said Convention, and, if appropriate the Applicants seek a declaration of incompatibility pursuant to section 5 of the European Convention on Human Rights Act, 2003. The decision of the first Respondent was unreasonable, irrational and flew in the face of common sense in the light of all the circumstances. Submitted that an error in law in foreclosing on speculation relating to future persecutory risk.

1. These were the matters at issue on the application before the Court on the leave to apply.

1. The Court granted the Applicant liberty to apply for Judicial Review on the sole ground that there was an error in law by the Tribunal member by failing to examine and reach a conclusion from a forward looking perspective on the Applicant’s claim to be at continuing risk of persecution if returned to Nagorno-Karabakh due to her family background and ethnicity, having regard to the country of origin information as to ongoing inter-communal conflict in the country of origin.

1. The Statement of Grounds of Opposition filed on behalf of the Respondent was supported by a replying affidavit of Philip Sullivan of the Refugee Appeals Tribunal. The Statement of Opposition filed contained a preliminary objection submitting that the sole ground in respect of which the Applicants had been granted leave to apply for Judicial Review was misconceived and/or erroneously formulated in that it either expressly or implicitly identifies an entity or place therein described as Nagorno-Karabakh as the only country of origin or place whither the Applicants might be returned hence. On the contrary the said Nagorno-Karabakh is merely a sub-national entity and not a country or state so-called recognised under international law. It is merely a province, region and/or part of Azerbaijan in the first named Applicant’s self-admitted country of origin. Without prejudice to the foregoing the Respondent submitted that it denied the assertions and pleas set forth in the statement of grounds of opposition seriatim. Denied that Nagorno-Karabakh constitutes or could conceivably constitute a country of origin for the Applicants; on the contrary the country of origin is Azerbaijan where the said Nagorno-Karabakh is merely one part. Further or in the alternative the second named Applicant’s country of origin is Turkey. However and under either of the said two alternatives Nagorno-Karabakh is not the country of origin of either of the Applicants and for the avoidance of doubt the Respondents reaffirmed that the distinction mentioned hereinbefore between the province of Nagorno-Karabakh and the Country of Azerbaijan is not merely one of semantic technical or legal importance. On the contrary this distinction has fundamental and material effects of practical importance. That is to say Nagorno-Karabakh is a part of Azerbaijan but is controlled de facto by the Armed Forces of another country, namely, Armenia which said Armenian Armed Forces are the alleged persecutors of the Applicant herein. The remainder and indeed the vast majority of Azerbaijan is free and independently controlled by its own Azeri Armed Forces. Therefore or otherwise the Applicants enjoy a reasonable internal flight option within their said country of origin, if such be needed. Subject always to the foregoing it was denied that the first named Respondent failed to examine or reach a conclusion, either from a forward looking perspective, or otherwise on the Applicant’s claim to be at continuing risk of persecution if returned to Nagorno-Karabakh due to their respective family backgrounds or ethnicity or either of them as is alleged or at all and whether having regard to country of origin information as to the alleged or any ongoing inter-communal conflict in the country of origin. On the contrary the Respondents will maintain that when taken at its height the evidence adduced by or on behalf of the Applicants clearly amounts to something much less than persecution within the meaning of the relevant Conventions and law. If such was denied, the first named Respondent did fail to examine or reach a conclusion as aforesaid, then it is denied that it erred in law or otherwise. It denied the first named Respondent erred in law or otherwise and pleaded that the Applicant was not entitled to the relief sought or any relief and denied entitlement to costs. A grounding affidavit and exhibits by Philip Sullivan was filed in support thereof.

1. Comprehensive written legal submissions were filed in full by the Applicants both on the leave to apply and also by the Applicants and the Respondents for substantive hearing. As these are not the subject of objections by either party their reference as a fact content is taken as not to be an issue.

The Taxation of Costs and Objections

1. The Applicant presented a Bill of costs for Taxation, which came before former Taxing Master Mulcahy. It was at hearing on 2 March 2015 and adjourned for further hearing on 5 June 2015. As I understand the facts, the Taxing Master took the solicitor's papers to consider. There appeared to have been some considerable delay in obtaining her decision, The Applicants were concerned about the delay and wrote several letters of complaint.

1. On 30 May 2016 former Taxing Master Mulcahy delivered her ruling. Unfortunately, there is no written ruling, in the accepted sense, where the arguments of each side are articulated and her reasoning explained. There is in existence a note of the ruling on the Taxation of costs, which has been prepared by the Respondents. I have read and considered this in the context of reviewing the papers and the respective written and oral submissions made before me.

1. On the hearing of the Objections before me the parties were in dispute with regard to the solicitor’s instructions fee and Counsel’s fees.

1. Regarding Counsel’s fees the Respondents have filed Objections to the allowances made by the former Taxing Master. The route by which these Objections carried in is slightly circuitous, which will be explained later. The Respondents have objected to the allowance of fees to both Senior Counsel and Junior Counsel retained by the Applicants. These can be best illustrated by the table following; there are other small sums for Counsel such as for settlement of the Notice of Motion, Grounding Affidavit and taking Judgment which are not in dispute. The figures are shown net of Vat, which is payable in addition.

1. Thus the overall issues in dispute in this matter can be shown as follows

A C Pendred & Co

Solicitors Instructions Fee Claimed €29,500 Fee Allowed €5,250

Gary O’Halloran BL

Brief on leave to apply Fee Claimed €6,000 Fee Allowed €4,800

Written Legal Submissions Claimed €2,500Fee Allowed €1,800

Brief on Substantive Hearing Claimed €5,000Fee Allowed €4,500

Written Legal Submissions Claimed €2,500Fee Allowed €1,000

Robert Haughton SC

Brief on Substantive Hearing Claimed €7,500Fee Allowed €7,500

1. Both parties were ultimately dissatisfied with the allowances made by the former Taxing Master. Pursuant to the provisions of Order 99 Rule 38 (1) the parties brought in Objections to the former Taxing Master's allowances.

1. The Applicants have lodged objections to this decision by Notice of Objections filed on 9 June 2016. The Applicants rely on 13 grounds of Objection and these are recited in full and are as follows.

1. The allowance of €5,250.00 by way of “Instruction Fee” is inadequate remuneration and insufficient to cover the work done by Solicitors for the Applicants.

1. The deduction of 82.2% from the Instruction fee claimed is disproportionate and or irrational to the nature of the proceedings.

1. The Taxing Master failed to have regard to the urgency and importance of the proceedings and the degree of responsibility born (sic) by the Solicitor for the Applicants in the course of the Judicial Review proceedings.

1. That the Taxing Master departed from the established Jurisprudence/Case law as established by the Superior Courts in the assessment of Solicitors Instruction Fee. (sic)

1. The Taxing Master failed to have regard to the general regulations and in particular to Order 99 Rule 37 (22) (ii) RSC 1986 items (a) – (g).

1. The Taxing Master failed to have regard or make enquire (sic) as to the time and l abour expended by the Solicitor.

1. That the Taxing Master made no allowance as to an uplift for intangible factors referred to in Order 99 Rule 37 (22) (ii).

1. The Taxing Master failed to give any weight and or consideration of the comparator rulings/cases that was submitted on behalf of the Applicants, namely the case of Dana Salman and Minister for Justice Equality and Defence insofar as the taxation of the Solicitors Instructions Fee was concerned notwithstanding that the Taxing Master gave considerable weight to the said comparator ruling/case when assessing Senior Counsels fees.

1. The Taxing Master erred in fact in holding that no information was proffered in relation to the length of time that was spend (sic) in Court in the course of the hearings of the proceedings namely the “Leave Application” and the “Substantive Hearing” i.e.; Days in Court.

1. The Taxing Master erred in fact in in ruling that no Section 68 letter was proffered at the hearing of the Taxing and no evidence was produced if the section 68 letter was sent even to the Client. (sic)

1. The Taxing Master failed to give reasons as to why the Instructions fee was reduced by 82.8%.

1. The Taxing Master provided no comparators and/or case law to support the findings for such a deduction of 82.2% to the fee claimed under the heading “General Instructions Fee”.

1. The Taxing Masters approach to the assessment of the Instructions fees in the instant case is inconsistent with the written rulings published by the Office of the Taxing Master on the Court Services Website.

1. The Applicant’s Objections came before former Taxing Master Mulcahy on 27 June 2016. On that date the Applicant’s Objections were listed for mention and an application was made by the Respondents seeking liberty to file Notice of Objections to Counsel’s fees. It appears that this application was adjourned for further hearing to 4 July 2016. In the intervening period between the determination of the original taxation and the Objections coming on for hearing before former Taxing Master Mulcahy the Court of Appeal delivered its decision in Sheehan V Corr [2016] IECA 168. It appears that at the hearing on 27 June 2016 the former Taxing Master concluded that the Applicant's solicitors were required to lodge a new Bill of costs in compliance with the dicta of the judgment of Cregan J. in the Sheehan case.

1. On 4 July 2016 the Respondents obtained an extension of time to file Objections to the allowances made in respect of Counsel’s fees. It appears on this date that the Taxing Master give directions regarding the lodgement of a revised Bill of costs to satisfy the requirements in the Sheehan case.

1. The Respondents duly filed their written Objections. The Respondents' written Objections were limited to the issue of Counsel’s fees. In issue were the fees allowed to Junior and Senior Counsel.

Gary O’Halloran BL