M.I.O. v Minister for Justice, Equality and Law Reform and Another
Jurisdiction | Ireland |
Judge | Mr. Justice Hedigan |
Judgment Date | 12 December 2007 |
Neutral Citation | [2007] IEHC 441 |
Court | High Court |
Date | 12 December 2007 |
Docket Number | RECORD NO. No. 972 JR/2006 |
[2007] IEHC 441
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S2
O (FOY) v MIN JUSTICE UNREP MCGOVERN 16.5.2007 2007 IEHC 237
STEFAN v MIN JUSTICE 2001 4 IR 203
ABENGLEN PROPERTIES v CORPORATION OF DUBLIN 1984 IR 381 1982 ILRM 590
REFUGEE ACT 1996 S11B
IMMIGRATION
Asylum
Refugee Applications Commissioner - Judicial review - Certiorari - Alternative remedy - Whether appeal procedure adequate alternative remedy - Fair procedures - Whether all material aspects of applicant's claim for asylum explored by decision maker - Whether substantial grounds for leave to seek judicial review - The State (Abenglen Properties) v Corporation of Dublin [1984] IR 381 applied; Stefan v Minister for Justice [2001] 4 IR 203 distinguished - Leave to seek judicial review refused (2006/972JR - Hedigan J - 12/12/2007) [2007] IEHC 441
O(M) v Minister for Justice
This is an application for leave to seek judicial review made on the part of the applicant in order to quash the decision of the second named respondent dated the 13th of July 2006 to the effect that the applicant had failed to establish a well-founded fear of persecution as defined under section 2 of the Refugee Act 1996 as amended. Further declarations are sought in relation to lack of fair procedures and other reliefs associated with the above.
To exercise the Court's discretion in granting leave to seek such relief I must be satisfied that there are substantial grounds upon which the applicant may argue that the Refugee Appeals Commissioner acted somehow beyond his jurisdiction or not in a manner which was consistent with the applicant's right to fair procedure in the hearing of her application for a declaration as a refugee in accordance with the above Act. In this context, I have also to examine whether judicial review is an appropriate way to proceed in the light of the full appeal procedure that exists with an oral hearing and legal representation and which has been sought in this case.
In his judgment delivered on the 16th May 2007 in Fatimo Oydele v. The Minister of Justice, Equality and Law Reform and Others, McGovern J stated:
"It is undesirable that parties should challenge decisions by way of application for judicial review when an adequate remedy is available elsewhere."
In his judgment, he citedStefan v. The Minister for Justice, Equality and Law Reform, where the Supreme Court, although holding that in the circumstances of that case there had been a serious breach of the requirement for a fair hearing, nonetheless held that judicial review was discretionary and could be refused where there was an adequate alternative remedy. In that case, the Supreme Court relied upon and cited the judgment of O'Higgins CJ in The State (Abenglen) Properties v. Corporation of Dublin [1984] I.R. 381, and specifically at page 393:
"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 a 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 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 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 is not adequate."
It seems to me that the applicable principles to be applied in determining this type of...
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O (S M) v Refugee Applications Commissioner and Others
...Tribunal [2007] IEHC 290 (Unrep, Peart J, 27/7/2007); O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301; OST v Minister for Justice [2007] IEHC 441 (Unrep, Hedigan J, 12/12/2007); De Roiste v Minster for Defence (Unrep, McCracken J, 28/6/1999); Golan v DPP [1989] ILRM 491; Ojuade v Mi......