A (T T) v Min for Justice & Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr Justice Cooke
• Judgment Date: 29 April 2009
• Neutral Citation: [2009] IEHC 215
• Docket Number: [No. 875 J.R./2006]
• Court: High Court
• Date: 29 April 2009

[2009] IEHC 215

THE HIGH COURT

[No. 875 J.R./2006]

A (T T) v Min for Justice & Refugee Applications Commissioner

BETWEEN/

T.T.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

K (A) v REFUGEE APPLICATIONS CMSR UNREP SUPREME 28.1.2009 (EX TEMPORE)

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590 1982/1/1

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

N (BN) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP HEDIGAN 9.10.2008 2008 IEHC 308

D (A) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 27.1.2009 2009 IEHC 77

M (J) v REFUGEE APPLICATIONS CMSR & MIN FOR JUSTICE COOKE 27.1.2009 2009 IEHC 64

IMMIGRATION

Asylum

Remedy - First instance decision - Appeal brought but left in abeyance pending outcome of judicial review - Country of origin information - State protection - Whether appeal more appropriate remedy - N v Refugee Applications Commissioner [2008] IEHC 308 (Unrep, Hedigan J, 9/10/2008) applied; State v Dublin Corporation [1984] IR 381, Stefan v Minister for Justice [2001] 4 IR 203, M v RAC [2009] IEHC 64 (Unrep, Cooke J, 27/1/2009) and D v RAC [2009] IEHC 77 (Unrep, Cooke J, 27/1/2009) considered - Relief refused (2006/875JR - Cooke J - 29/4/2009) [2009] IEHC 215

A(TT) v Minister for Justice, Equality and Law Reform

RESERVED JUDGMENT of

Mr Justice Cooke

1 delivered on the 29th day of April, 2009.

2 1. In a judgment given on the 8^th May, 2008, in this case Herbert J. granted leave to the applicant to apply for an order of certiorari by way of judicial review to quash the report and recommendation given by the Refugee Applications Commissioner on the applicant's asylum application on the 27^th June, 2006.

3 2. Leave was granted on the four grounds which will be quoted later in the present judgment. An appeal was taken to the Refugee Appeals Tribunal against that report and recommendation of the Commissioner but has been left in abeyance pending the outcome of this judicial review proceeding. This is a case in which a full oral hearing will be available to the applicant on that appeal.

4 3. At the opening of the hearing of this application the Court invited counsel to make submissions on the issue as to whether this was a case in which, in the light of the grounds for which leave had been granted, the Court would or should exercise its discretion to issue an order of certiorari against the Commissioner when an appeal was available and had been commenced. It did so because this issue has now been considered by this Court in a number of judgments and on the 28^th January, 2009, the issue was the subject of a judgment given in the Supreme Court in an appeal certified to it by the High Court under s. 5(3)(a) of the Illegal Immigrants (Trafficking) Act, 2000 in the case of A.K. v. The Commissioner. In that judgment the Supreme Court reaffirmed its earlier view of the issue as given in The State v. Dublin Corporation [1984] I.R. 381 and more particularly, in the context of asylum cases, in its judgments in Stefan v. The Minister for Justice [2001] 4 I.R. 203. In his conclusion to an ex tempore judgment in the A.K. case Murray C.J. held that the appeal available was a more appropriate remedy where the issue raised by the applicant principally (but not exclusively) related to the quality of the decision of the Commissioner.

5 4. This issue appears to have been adverted to on the application for leave before Herbert J. in this case but that appears to have been on the limited basis that the mere commencement of an appeal was the exercise of an option which could operate as a procedural estoppel because he disposes of the point at p. 10 of his judgment by saying simply:-

"In the instant case the applicant has delivered a notice of appeal to the Refugee Appeals Tribunal but I am satisfied that this was done out of caution and to prevent an issue of time being raised in the future and nothing further has been done on the foot of the notice of appeal. In these circumstances I am quite satisfied that the applicant should not be estopped from seeking judicial review."

6 5. Herbert J. was also, of course, ruling on that leave application well in advance of the other judgments which have since highlighted this issue in asylum cases, not only the Supreme Court judgment in theA.K. case, but the important detailed consideration of the issue by Hedigan J. on the 9^th October, 2008, in the case of N. v. The Refugee Applications Commissioner and my own judgments in the Diallo and Mhlanga cases of 27^th January, 2009. (In passing I would make the observation that in the versions of my own judgments as downloaded from the Court's website they are described as being "ex tempore" judgments. In fact those cases were heard respectively on the 20^th and 21^st January, 2009 and the judgments were reserved precisely because of the coincidence of the issues raised and given on the 27^th January, and they were, I hope, somewhat more considered in their deliberation than the designation "ex tempore" might imply.)

7 6. It follows from this case law in the Court's view, and it is accepted by both sides in the present case, thatcertiorari can, in principle, issue to quash the report and recommendation of the Refugee Applications Commissioner under the Act even where an appeal is available and has been initiated in good time. However, it is now equally clear that this Court should only intervene in exceptional and clear cases where it is necessary to do so. Once again, I express my agreement with the appraisal by Hedigan J. in his description of the circumstances which can call for such intervention given at para. 45 of his judgment in the N case where he says:-

"It is clear that it is only in very rare and limited circumstances indeed that judicial review is available in respect of an ORAC decision. The investigative procedure with which ORAC is tasked must be properly conducted but the flaw in that procedure that entitles an applicant to judicial review of an ORAC decision must be so fundamental as to deprive ORAC of jurisdiction. The Courts, the applicants themselves and the general public have a right to expect that no such fundamental flaw should ever occur in such an application. An applicant must demonstrate a clear and compelling case that an injustice has been done that is incapable of being remedied on appeal to the Refugee Appeals Tribunal. When such a clear and compelling case is not demonstrated, the applicant must avail himself of the now well established procedure that has been set up by the Oireachtas which provides for an appeal to the Tribunal."

8 7. In my own judgment in theDiallo case I endeavoured to summarise the applicable criteria when I said at para. 21:-

"It follows accordingly from this case law, that leave to apply for judicial review to quash a report and recommendation of the Commissioner should only be granted in exceptional cases and that to bring an application within the category of such cases it is...