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Judge refuses "wasted costs" order for failed refugee challenge

A HIGH Court judge has refused to grant a "wasted costs" order requiring solicitors for a Nigerian child pay the State's costs of what the Minister for Justice argued was the child's "hopeless" legal challenge to a refusal of refugee status.

The Minister and Refugee Applications Commissioner claimed the case was among 282 similar cases which, in light of certain High and Supreme Court decisions, must be appealed to the Refugee Appeals Tribunal (RAT) rather than challenged via judicial review.

It was also argued the solicitors for the now seven year old child failed to deal meaningfully with an earlier offer by the State that, if the case was withdrawn, no costs would be sought by the State.

While later withdrawn on the date of hearing, Mr Justice Gerard Hogan said he could not accept the case should not have been brought.

While the prospects of success were "admittedly not great", it could not be said they were hopeless or the case was untenable, he said.

While the abrupt withdrawal of the case on the morning of hearing might be thought to suggest otherwise, that decision was almost certainly taken given the trial judge's comments the case was not particularly strong.

The judge said he would award costs to the State against the applicant child as the losing party but would not make a "wasted costs" order against the solicitors for the child requiring them to pay the Chief State Solicitor's costs.

He agreed with the child's solicitors - Burns Kelly Corrigan - they were entitled to advance arguments the case could fall into the category of exceptional cases where the court's discretion might be exercised in favour of judicial review.

The child arrived here in December 2008 and sought asylum in March 2009.

In April 2009, a judicial review challenge was initiated to a decision of the ORAC (Office of the Refugee Applications Commissioner) refusing the child asylum on the basis of the threat of female genital mutilation in Nigeria.

It was argued ORAC breached fair procedures by arriving at conclusions regarding the availability of State protection in Nigeria on the basis of material not disclosed to the girl's mother.

Mr Justice Hogan said the application presented the "vexed" question whether such litigants were obliged to appeal to the RAT or could directly challenge the ORAC decision at first instance in High Court judicial review proceedings.

The Minister argued a High Court October 2008 decision (BNN v RAC) and a Supreme Court January 2009 decision (Kayode v RAT), plus other decisions based on the principles outlined in those two cases, meant the child's judicial review could not succeed.

Given those decisions, the Minister's lawyers told the High Court in June 2009 the State would allow applicants who had initiated judicial review challenges to ORAC decisions strike out their cases with no costs orders.

At that stage, there were 282 judicial review cases involving ORAC but the child's solicitors argued her case could be distinguished.

When the case came to hearing in October 2009, the trial judge indicated there appeared to be no issue in the case not already decided in other cases and refused an application by the child's counsel to adjourn the case. It was then withdrawn.

In his reserved judgment on costs today, Mr Justice Hogan ruled the Minister and Commissioner were entitled to their costs against the child but there was no basis for a "wasted costs" order against her solicitors.

A wasted costs order was contingent on a solicitor being guilty of misconduct or negligence in the sense of a breach of their duty to the court, he said.

Certain injustices may not be capable of being remedied on appeal to the RAT and, in those "rare and limited" circumstances, an applicant may be entitled to judicial review of an ORAC decision.

While the existence of a statutory right of appeal to the RAT was "a fundamental reason" not to grant judicial review, the court decisions relied on by the Minister did not exclude the possibility of judicial review of an ORAC decision, he said. The application of governing principles for judicial review to the facts of a given case may be problematic and not all the case law on that topic had been perfectly consistent, he added.

The issue whether judicial review was available fell to be decided by discretionary principles rather than some jurisdictional barrier, he said. That told heavily against an application for wasted costs.