Kayode v Refugee Application Commissioner

JurisdictionIreland
JudgeMr. Justice O'Leary
Judgment Date25 April 2005
Neutral Citation[2005] IEHC 172
CourtHigh Court
Docket Number[No. 465 JR/2004]
Date25 April 2005
KAYODE v REFUGEE APPLICATIONS COMMISSIONER
JUDICIAL REVIEW
IN THE MATTER OF THE ILLEGAL IMMIGRANTS
(TRAFFICKING) ACT 2000

BETWEEN

AJOKE KAYODE
APPLICANT

AND

THE REFUGEE APPLICATION COMMISSIONER
RESPONDENT

[2005] IEHC 172

[No. 465 JR/2004]

THE HIGH COURT

JUDICIAL REVIEW

practice and procedure

Leave - Exercise of discretion of court - Whether existence of appeal bar to court acting - Circumstances in which court should not act - Tomlinson v Criminal Injuries Compensation Tribunal [2005] 1 ILRM 394; Buckley v Kirby [2000] 3 I.R. 431 and McGoldrick v An Bord Pleanála [1997] 1 I.R. 497 followed - Leave refused (2004/465JR - O'Leary - 25/4/2005) [2005] IEHC 172

Kayode v Refugee Applications Commissioner

Facts: The applicant’s application for asylum was refused by the RAC. She appealed the refusal to the RAT and applied for leave to apply for judicial review of the refusal.

Held by O’Leary J. in refusing the relief sought that the application should be refused because of the absence of substantial grounds and the appeal process was a more appropriate remedy.

Reporter: R.W.

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)

TOMLINSON v CRIMINAL INJURIES COMPENSATION TRIBUNAL 2005 1 ILRM 394

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORPORATION 1984 IR 38 1982 ILRM 590

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497

BUCKLEY v KIRBY & DPP 2000 3 IR 431 2001 2 ILRM 395

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134

Mr. Justice O'Leary
1

The applicant applied by notice of motion dated 27th May, 2004, on notice to the respondent for leave to apply by way of judicial review for the following orders:

2

(a) An order of certiorari by way of application for judicial review quashing the decision of the respondent, dated the 27th day of April, 2004 that the applicant not be declared a refugee.

3

(b) An order of mandamus directing the respondent to assess the applicant's asylum claimab initio.

4

(c) A declaration by way of application for judicial review that the respondent erred in law and/or in fact in its decision in respect of the applicant's application for refugee status.

5

(d) An order allowing for an extension of time within which to bring an application for judicial review, pursuant to Section 5(2)(a) of the Illegal Immigrants (Trafficking Act),2000.

6

(e) Such further or other order as to this honourable court shall seem meet.

7

(f) An order providing for costs.

8

The pleadings and the following evidence was available to the court for its consideration:

9

Pleadings consisting of:

10

(1) Notice of Motion.

11

(2) Statement Grounding Application.

12

(1) Grounding affidavit of Ajoke Kayode (the applicant) dated 27th May, 2004.

13

(2) Affidavit of service of Susan Hudson on behalf of the solicitor for the applicant dated 28th May, 2004.

14

In order to fully understand the submissions of both parties a full examination of the pleadings and evidence is necessary. The court has conducted such a full examination.

15

The affidavit of the applicant is drafted in a manner that is contrary to the requirements of an affidavit as to facts. It is replete with arguments that are, obviously, the work of the lawyers in the case and contain submissions which are clearly not the words of the applicant. If at any time it becomes necessary to tax the costs of the applicant the taxation should reflect this violation of the rules of pleading. The effect of such incorrect procedure is to complicate and lengthen what should be a straightforward application. It would be unfair, however, to visit the annoyance of this court on the applicant. From the mixture of fact and argument the following matters appear to emerge.

16

Facts for which there is objective evidence are set out below and facts depending on the unsupported word of the applicant are underlined.

17

The applicant:

18

1.Was born on 26th October, 1961. She is married since 1982 and has six children. Her spouse and children remain in Nigeria.

19

2. Arrived in Ireland on 18th March, 2004.

20

3.Was assisted by a white male, with whom she has now lost contact, in leaving Nigeria.

21

4.Her father was a Muslim who had a dispute over employment policy in his firm and was killed for this reason as were her two brothers, her mother was injured as were other family members including the rape of the applicant's daughter.

22

5.Herself was attacked in her house on 18th February, 2003.

23

6. Mother is a person whose asylum application has been granted in 5th December, 2002.

24

7.The applicant travelled to Ireland via France where she did not claim asylum.

25

8.Never had a passport and in so far as she may have had the benefit of a passport for her travel this was retained by her white travel companion.

26

9.Had no knowledge at which airport in France she had landed.

27

10. Was interviewed on 22nd April, 2004, and the report of the officer assigned to the case was made on that day.

28

11. An appropriate officer on behalf of the respondent further considered the matter on 27th April, 2004, recommending refusal of application.

29

12. The decision not to grant refugee status was conveyed to the applicant by letter dated 28th April, 2004.

30

13. The applicant appealed to the Refugee Appeals Tribunal on 20th May, 2004.

31

14. The applicant applied for judicial review of the decision herein on 27th May, 2004.

32

The applicant has pointed out that the application is some two weeks later than provided for in the legislation and has explained the delay by reference to the delay in receiving legal advice though this was sought on 29th April, 2004. The explanation appears reasonable and the court exercises its discretion to extend the time for the making of the application to the extent that this is necessary for the further consideration of the application.

33

Making of an application for Judicial Review and maintaining a simultaneous appeal.

34

The court notes that the applicant has first in time lodged an appeal against the unfavourable decision of the respondent to the Refugee Appeals Tribunal on 20th May, 2004, and later on the 27th May, 2004, issued a judicial review motion. Is this acceptable? The law in this area has been undergoing a certain refinement culminating in the decision of the Supreme Court inAngela Tomilson v. Criminal Injuries Compensation Tribunal [2005] 1 I.L.R.M. This decision has the advantage of summarising the law in a straightforward and comprehensive way. At page 397 Denham J. sets out the current law as follows.

35

“The common law, on the discretion to be exercised by a court when there is an application for judicial review in circumstances where an alternative remedy exists, has been developed over the last two decades. Several different approaches may be seen inState (Abenglen Properties Ltd) v. Dublin Corporation [1984] I.R. 381; [1982] I.L.R.M. 590. In that case, O'Higgins C.J. stated at pp. 393/597:

"The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the exercise of the court's discretion. It is well established that the existence of such right or remedy ought not to prevent the court from acting. It seems to me to be a question of justice. The court ought to take into account all the circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative remedy, and of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such, should be immaterial. Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of such ought not to be a ground for refusing relief. Other than these, there may be cases where the decision exhibits an error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question. In such cases, while retaining always the power to quash, a court should be slow to do so unless satisfied that, for some particular reason, the appeal or alternative remedy us not adequate."

36

Over a decade later, it was stated by Barron J. in a High Court judgment inMcGoldrick v. An Bord Pleanála [1997] 1 I.R. 497 at 509:

"The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and principles of fairness; provided, of course, that the applicant has not gone too far down one...

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