The High Court granted B.W. leave to appeal its earlier decision refusing relief in her judicial review challenge to the Refugee Appeals Tribunal. The court certified a point of law as one of exceptional public importance and said an appeal to the Court of Appeal was desirable in the public interest.
The question concerns decisions supported by several reasons when one or more reasons cannot be sustained. It asks whether the overall conclusion may still stand if, reading the decision as a whole, the invalid reasons are not major and do not go to its core. The certified question also asks whether that approach can apply where those reasons may be relevant to the core claim, the decision is cumulative, or the decision-maker did not expressly assign weight to individual factors.
B.W.’s application followed two earlier judgments in the proceedings. In the first, the court allowed her to amend her statement of grounds in certain respects. In the second, it refused all relief, including relief based on the amendments. This judgment dealt with leave to appeal and costs; it did not decide the appeal itself.
The judge said the issue involved potentially conflicting approaches in High Court authority and arose frequently in asylum decision-making. The State submitted that the earlier ruling had clarified the law and there was no uncertainty requiring resolution. The judge considered an appeal the quickest and most satisfactory way to resolve the issue and found the requirements for leave satisfied.
On costs, the respondents sought an order under the general rule that costs follow the event. B.W. sought her costs if granted leave. The judge exercised discretion to award her the full costs of the proceedings, including reserved costs, against the respondents, to be taxed if not agreed. The award was made on her undertaking to pursue the appeal expeditiously and seek priority, and on the basis that solicitors and two counsel were appropriate at all stages.
The costs order is stayed for 28 days from perfection of the order and, if a notice of appeal is filed within that period, until the appeal is finally determined. If no notice is filed in time, or an appeal is withdrawn, abandoned or determined without a substantive decision because of an act or omission attributable to B.W., the stay becomes permanent.