The Supreme Court has ruled that an appeal by an anonymised child in an asylum case can proceed without a certificate from the High Court. It dismissed the State respondents’ motion to strike out that appeal, leaving the substantive appeal to proceed.
The judgment, delivered by Chief Justice Denham on 14 March 2013, addressed only whether section 5(3)(a) of the Illegal Immigrants (Trafficking) Act 2000 required a High Court certificate for this appeal. The child’s application for leave to seek judicial review had not been heard. Instead, the High Court had heard the respondents’ motion to dismiss the proceedings as frivolous, vexatious, doomed to fail or an abuse of process, and allowed it.
The judicial review application sought to challenge a recommendation by the Refugee Applications Commissioner that the child should not be declared a refugee. The grounds included claims that the Commissioner had relied on the mother’s rejected asylum claim rather than independently assessing the child’s case, and had not properly considered the child’s best interests, protection in Nigeria or internal relocation. Those were grounds advanced by the appellant; the Supreme Court did not determine their merits in this judgment.
The High Court had considered the challenge to the recommendation premature or unsuitable for judicial review because a statutory appeal to the Refugee Appeals Tribunal had been lodged. It held that the matters raised could be dealt with through that appeal and dismissed the proceedings. The child then appealed that dismissal.
The State respondents argued in the Supreme Court that the appeal required a certificate under section 5(3)(a), which restricts appeals from determinations of applications for leave to seek judicial review. The Supreme Court found that the High Court had not determined the leave application: it had decided a separate motion brought by the respondents to dismiss the proceedings. Applying an earlier Supreme Court analysis of the statutory wording, Chief Justice Denham concluded that the section did not clearly remove the right to appeal such a dismissal motion.
The court therefore dismissed the respondents’ motion to dismiss the appeal for lack of a certificate. It did not overturn the High Court’s dismissal of the judicial review proceedings or decide whether the asylum recommendation was lawful. The substantive appeal, which had been adjourned pending the certificate issue, could proceed. The court said it would hear counsel on how it should proceed in light of changed circumstances.