Yacef v Minister for Justice, Equality and Law Reform

JurisdictionIreland
JudgeMR. JUSTICE T.C. SMYTH
Judgment Date04 October 2002
Neutral Citation2002 WJSC-HC 7524
CourtHigh Court
Date04 October 2002

2002 WJSC-HC 7524

THE HIGH COURT

Record no. 701JR/2000
YACEF v. MINISTER FOR JUSTICE & CUSACK
(JUDICIAL REVIEW)
Between/
HAMID YACEF
Applicant
-and-
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM and DYMPNIA CUSACK
Respondents

Citations:

RSC O.84 r.24

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 16

P & L & B V MIN FOR JUSTICE 2002 1 ILRM 38

HAY V O'GRADY 1992 1 IR 210, 1992 ILRM 689

SS GAIRLOCH 1899 2 IR 1

DPP, PEOPLE V MADDEN 1977 IR 336

CAMARA V MIN FOR JUSTICE UNREP KELLY 26.7.2000 2000/4/1247

MIN JUSTICE EQUALITY & LAW REFORM V U UNREP MURPHY 28.2.2002

GAVIN V CHIEF APPEALS OFFICER 1997 3 IR 240

Synopsis:

IMMIGRATION

Asylum

Certiorari - Reasonableness - Irrationality - Whether view taken that evidence not credible irrational or unreasonable - Nature of appeal - Whether inquisitorial in nature - Whether procedural deficiencies cured by appeal - Whether irrelevant considerations taken into account - Hope Hanlon procedures - Adequacy of procedures (2000/701JR - Smyth J - 4/10/02)

Yacef v Minister for Justice, Equality and Law Reform

Facts: the view had been taken at the hearing of the appeal against a recommendation that the applicant be refused refugee status that the applicant’s evidence of his disembarkation from a ship at Cork was not credible. The applicant applied for leave to judicially review the decision to refuse his claim for asylum on the grounds, inter alia, that the procedure before the second respondent, which should be regarded as part of the whole asylum procedure, including the initial investigation and recommendation which was being appealed against, was flawed as it did not provide for a key element of a de novo hearing in that she acted on evidence that had not been properly adduced before her in circumstances where the initial decision was flawed. It was also alleged that her decision was irrational and/or unreasonable since there was no inconsistency in his evidence and no countervailing evidence was before the Interim Authority on the issue.

Held by Smyth J in refusing leave that the Interim Appeals Authority (now the Refugee Appeals Tribunal) was empowered to carry out an independent investigation as if the application had been made to it in the first instance and the applicant had been given the opportunity to address whatever deficiencies may have been perceived in the first instance decision on appeal. The scheme under both the Hope Hanlon procedures and under the Acts was and is inquisitorial in nature and a view expressed on evidence in a determination does not necessarily leave open the curial part of the order to a charge of invalidity due to excess of jurisdiction or unreasonableness. Obiter dictum: the fact that the Hope Hanlon procedures may have been slightly less structured and did not have the statutory framework to be found in the Refugee Act 1996, as amended, does not put their intendment in doubt.

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MR. JUSTICE T.C. SMYTH DELIVERED ON FRIDAY, THE 4TH DAY OF OCTOBER 2002

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I hereby certify the following to be a true and accurate transcript of my shorthand notes in the above-named judgment

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Stenographer

APPEARANCES

For the Applicant:

MR. P. FINLAY SC

For the Respondent:

MR. R. BARRON BL

MR. JUSTICE T.C. SMYTH DELIVERED HIS JUDGMENT AS FOLLOWS

MR. JUSTICE SMYTH:

The Applicant seeks leave

to apply for judicial

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review for the following reliefs:-

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a (A) A Declaration that the application of the Applicant herein for recognition of his refugee status was not conducted in accordance with the law and/or with the requirements of natural and constitutional justice.

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b (B) An Order of Certiorari by way of application for judicial review quashing the decision of the Second-Named Respondent to dismiss the Applicant's appeal and to recommend the rejection of the Applicant's refugee status claim.

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c (C) An Order of Certiorari by way of application for judicial review quashing the decision of the First-Named Respondent to uphold his original decision and to refuse the Applicant's appeal.

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d (D) An Interim Injunction by way of application for judicial review restraining the First-Named Respondent, his servant or agents, from deporting and/or detaining the Applicant, or otherwise implementing or acting upon the First-Named Respondent's decision to consider making a Deportation Order.

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e (E) A stay pursuant to the terms of Order 80, Rule 20 (Figure 7), prohibiting the making of a Deportation Order by the First-Named Respondent pending the determination of the present application or until this Honourable Court should otherwise order.

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f (F) A Declaration by way of application for judicial review that the Applicant is entitled to leave to remain and work in the State.

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While no less than seventeen grounds were relied upon, they may be broadly reduced to the following main headings:-

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(i) The procedure before the Second-Named Respondent did not provide for a key element of a de novo procedure, in that the Second-Named Respondent acted on evidence that was not properly adduced before the Interim Appeals Authority in concluding that the Applicant's evidence of his arrival in Cork was not credible. Further or in the alternative, the recommendation of the Second-Named Respondent was unreasonable and/or irrational and thereby ultra vires, since there was no inconsistency in the Applicant's evidence in this regard and no countervailing evidence before the Authority.

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(ii) The Second-Named Respondent took into account irrelevant considerations in making a recommendation to the First-Named Respondent. Further or in the alternative, the Second-Named Respondent failed to indicate in a recommendation that she only took into account...

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