Muzaffar & Ors v Minister for Justice, Pervaiz v Minister for Justice (Approved)

Factual and Procedural Background

This summary concerns two judicial review applications brought by applicants against the Minister for Justice in relation to delays in processing applications under the "Regularisation of Long Term Undocumented Migrant Scheme" ("the scheme").

In the first case ("Muzaffar case"), the applicants, a family residing in the State since 2015, applied for residency under the scheme in February 2022. Their application was processed through a system involving chronological queuing and background checks, which took longer than anticipated. The applicants initiated mandamus proceedings in April 2023, alleging unreasonable delay. However, the Minister granted permission to remain under the scheme on 29 May 2023, rendering the proceedings moot. The Minister's affidavit evidence stated that the decision was made in the ordinary course of processing and was not influenced by the proceedings.

In the second case ("Pervaiz case"), the applicant, a 38-year-old citizen, applied under the same scheme in April 2022. After a lengthy delay and correspondence seeking a decision, mandamus proceedings were filed in June 2023. The Minister refused the application in June 2023 on grounds that the applicant failed to satisfy criteria due to prior documented residency. Affidavit evidence similarly stated that the decision was made independently of the proceedings. The applicant subsequently received residency based on parentage of an Irish citizen child.

Both sets of proceedings sought mandamus orders due to delay, but became moot following the Minister's decisions. The current applications concern the issue of costs in these moot proceedings.

Legal Issues Presented

1. Whether there exists an "event" for costs to follow in judicial review proceedings that have become moot.
2. Whether the mootness arose due to factors outside the control of the parties or unilateral action by one party.
3. Whether there is a causal nexus between the proceedings and the decision that rendered the proceedings moot.
4. The appropriate exercise of the court's discretion regarding costs in moot judicial review proceedings.

Arguments of the Parties

Applicants' Arguments

• The respondent's delay in processing was inordinate, unreasonable, and breached their own timelines.
• The affidavits filed by the respondent failed to address the legality and reasonableness of the delay.
• The applicants suffered prejudice due to the delay.
• The respondent should be penalised in costs for failing to comply with the indicated timeline.

Respondent's Arguments

• The background checks took longer than expected, causing delay, but the applications were processed in the normal course.
• There was no causal nexus between the proceedings and the timing of the decisions that rendered the proceedings moot.
• The decisions were made as part of an orderly, chronological system and not influenced by the proceedings.
• Based on established authorities, no order as to costs should be made.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cunningham v. The President of the Circuit Court [2012] 3 IR 222	Costs in moot proceedings: no order as to costs where no event to follow; distinction between mootness caused by unilateral action and external factors.	Applied to conclude no event existed for costs to follow; default is no order as to costs in moot cases without causal nexus.
Godsil v. Ireland [2015] 4 IR 535	Costs follow the event; event must be caused by the proceedings for costs to be awarded.	Reinforced the principle that an explicit admission or acknowledgment of legal validity is an event for costs.
MATA v. Minister for Justice [2016] IESC 45	Clarification of causal nexus requirement for costs in moot proceedings; no costs if no causal nexus.	Used to affirm no causal nexus existed between proceedings and decisions, supporting no order as to costs.
MKIA (Palestine) and C.Z. v. The International Protection Appeals Tribunal [2018] IEHC 134	Summarised principles on costs in moot actions, including inquiry into existence of event and causal nexus.	Applied the six-point test from this case to determine no event and no causal nexus existed.
Hughes v. The Revenue Commissioners and Minister for Public Expenditure and Reform [2021] IECA 5	Four questions to determine costs in moot proceedings focusing on event and causal nexus.	Answered the four questions affirming that the mootness was caused by unilateral action but not in response to proceedings; thus no costs order.
Kiani v. Minister for Justice (Unreported High Court, 24 April 2024)	Emphasised that costs applications in moot cases should not be proxy trials of substantive issues.	Adopted to reject applicants' attempt to litigate substantive delay issues through costs application.

Court's Reasoning and Analysis

The court began by recognizing the general rule that costs follow the event but acknowledged the difficulty in applying this rule when proceedings become moot, as there is no "event" to follow.

The court examined whether the mootness resulted from an event caused by the parties' proceedings or by external factors. It found that the mootness in both cases was due to unilateral decisions by the respondent (the Minister for Justice) granting or refusing permission under the scheme.

However, the court carefully considered the affidavit evidence from the respondent's officer, which was uncontroverted, stating that the decisions were made in accordance with an orderly, chronological system and were not influenced or prompted by the judicial review proceedings.

Applying established legal principles from precedents, the court concluded there was no causal nexus between the institution of the proceedings and the decisions that rendered the proceedings moot. This absence of a causal nexus meant no "event" existed for costs to follow.

The court also declined to consider substantive issues such as the reasonableness or legality of the delay within the costs application, emphasizing that moot proceedings cannot be used as a proxy trial of the underlying issues.

Consequently, the court held that the usual rule of no order as to costs should apply, as neither party's conduct justified a costs award.

Holding and Implications

The court's final decision was to make NO ORDER AS TO COSTS in both sets of proceedings.

The direct effect of this decision is that neither the applicants nor the respondent will be awarded costs arising from the moot judicial review proceedings. The court reaffirmed the established principle that costs should not be awarded in moot cases absent a causal nexus between the proceedings and the event rendering them moot. No new precedent was set; rather, the court applied existing legal principles to the facts before it.