KA v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 02 May 2003
• Date: 02 May 2003
• Docket Number: [2002 No. 284 J.R.]
• Court: High Court

K.A. v. Minister for Justice

K.A.

Applicant

and

The Minister for Justice, Equality and Law Reform and the Refugee Appeals Tribunal (Tribunal Member,Mr. James Nicholson)

Respondents

[2002 No. 284 J.R.]

High Court

Practice and procedure - Discovery - Judicial review - Leave to apply - Whether application for leave to apply for judicial review is cause or matter - Definition of "matters in question" - Whether factual issues in dispute - Whether discovery to be granted in absence of factual dispute - Rules of the Superior Courts 1986 (S.I. No. 15) O. 31, rr. 12 and 29, O. 84, r. 20(2) and O. 125 - Illegal Immigrants (Trafficking) Act 2000 (No. 29) s. 5 - Refugee Act 1996 (No. 17) s. 17.

Aliens - Refugees - Discovery - Judicial review - Leave to apply - Decision to refuse refugee status - Grounds for decision - Right to obtain access to material before decision-makers - Whether severe consequences for applicant relevant - Rules of the Superior Courts 1986 (S.I. No. 15) O. 31, rr. 12 and 29, O. 84, r. 20(2) and O. 125 - Illegal Immigrants (Trafficking) Act 2000 (No. 29) s. 5.

The applicant issued a motion seeking leave to apply for judicial review of the respondents' refusal to grant him refugee status pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000. While the application for leave was pending, the applicant issued a motion seeking discovery of certain documents.

The documents sought related to, first, the total number of decisions reached by each member of the second respondent and its predecessor, the appeals authority, in a defined time period, and the number of refusals of refugee status that were not affirmed by the first respondent; and secondly, the total number of decisions recommending the grant and refusal of refugee status by each member of the second respondent and the appeals authority during a specified period of time.

The respondents filed no affidavit replying to or disputing the affidavit filed in support of the application for leave.

Held by the High Court (Finlay Geoghegan J.), in refusing the application for discovery, 1, that discovery could be granted prior to an application for leave in the absence of a factual dispute, but only in very limited circumstances.

Megaleasing U.K. Ltd. v. Barrett (No. 2) [1993] I.L.R.M. 497 considered.

2. That, as there was no dispute as to the facts alleged by the applicant, the matter in question on the application for leave was whether there were substantial grounds as a matter of law for contending that the impugned decisions were invalid or should be quashed.

Gordon v. Director of Public Prosecutions [2002] 2 I.R. 369 applied.

3. That the fact that the decision to refuse refugee status would have serious consequences for the applicant was not unique and did not justify treating the applicant's motion for discovery differently from other applications for judicial review of decisions that carried serious consequences.

4. That some factual basis for the applicant's assertions must be established before discovery would be granted and, as there was no factual basis for the assertions that the first respondent did not exercise his discretion under s. 17(1)(b) of the Refugee Act 1996, that assertion could not justify an order for discovery.

• R. v. Secretary of State for Health, ex parte Hackney London Borough (Unreported, Court of Appeal, 24th July, 1994);Megaleasing U.K. Ltd. v. Barrett (No. 2)[1993] I.L.R.M. 497 considered.

5. That, since the facts alleged by the applicant regarding the tribunal hearing were not disputed, the applicant was entitled to have the application for leave determined on the basis that those facts were capable of proof. Discovery was therefore not necessary to dispose of those issues.

6. That an application for leave to seek judicial review was a proceeding, but did not come within the definition of a"cause".

Cases mentioned in this report:-

Burke v. Director of Public Prosecutions [2001] 1 I.R. 760.

Compagnie Financière du Pacifique v. Peruvian Guano Co. (1882) 11 Q.B.D. 55.

Gordon v. Director of Public Prosecutions [2002] 2 I.R. 369; [2003] 1 I.L.R.M. 81.

The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 I.R. 360.

Megaleasing U.K. Ltd. v. Barrett (No. 2) [1993] I.L.R.M. 497.

R. v. Secretary of State for Health, ex parte Hackney London Borough (Unreported, English Court of Appeal, 24th July, 1994).

R. v. Stratford-on-Avon C. Ex p. Jackson [1985] 1 W.L.R. 1319; [1985] 3 All E.R. 769.

Motion on notice.

The facts have been summarised in the headnote and are more fully set out in the judgment of Finlay Geoghegan J.,infra.

On the 22nd February, 2002, the second respondent made a recommendation to refuse the applicant refugee status. On the 7th May, 2002, the first respondent upheld a decision to refuse to grant the applicant refugee status. The applicant filed an originating motion on notice on the 17th May, 2002, pursuant to s. 5 of the Illegal Immigrant (Trafficking) Act 2000, seeking leave to apply for judicial review of these recommendations and the decision of the first respondent. On the 29th June, 2002, the applicant issued a motion seeking discovery of certain documents.

The motion was heard by the High Court (Finlay Geoghegan J.) on the 5th November, 2002.

Cur. adv. vult.

Finlay Geoghegan J. 2nd May 2003

The applicant herein has issued an originating motion on notice pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000 seeking leave to apply for judicial review of a decision of the first respondent of the 7th May, 2002, to refuse his application for refugee status, a recommendation of the second respondent of the 22nd February, 2002 and a decision of the tribunal member of the 22nd January, 2002, to that effect. The application for leave has not yet come on for hearing.

In the meantime, the applicant also issued in the proceedings commenced by said originating motion on notice a separate motion on notice seeking discovery of certain documents from each proposed respondent pursuant to O. 31, r. 12 of the Rules of the Superior Courts 1986. This judgment is on the discovery application.

This application for discovery raises the issue as to the principles according to which discovery ought to be granted in an application brought pursuant to s. 5 of the Act of 2000, but prior to the granting of leave to apply for judicial review.

Nature of documents sought

Whilst the letter sent by the applicant's solicitor pursuant to O. 31, r. 12 of the Rules of the Superior Courts and the motion on notice seek a greater number of documents, at the hearing, the application was confined to the following category of documents specified at paras. (a) and (b) of the notice of motion:-

"(a) all documents relating to, pertaining to or containing the details of the total number of decisions reached by each member of the Refugee Appeals Tribunal/Appeals Authority in the period May, 1999, to date and the total number of...