High Court of Ireland Decisions

1. This is an application for Judicial Review pursuant to leave granted to the Applicant by order of Mr. Justice Andrias O’Caoimh dated the 29th of February, 2000. It is unnecessary, I think, to recite all the precise reliefs set out in the Applicant’s Statement of the grounds upon which Judicial Review is sought by him, or indeed, the details of Mr. Justice O’Caoimh’s Order. It is sufficient, in my view, that I should summarise what appear to me to be the essential reliefs sought by the Applicant which are;

2. Essentially, the grounds upon which the Applicant relies in support of his application for the reliefs aforesaid are;

3. At the time of the events which gave rise to this application, the procedure for appealing against a recommendation that a person should not be granted refugee status was entirely administrative and was based on procedures governing applications for asylum notified to the United Nations High Commissioner for Refugees on the 10th of December, 1997, as amended, which procedures are known as the “ Hope Hanlon procedures ”. Since then, the Refugee Act 1996 (Appeals) Regulations 2000 (S.I. No. 342 of 2000) which came into operation on the 20th day of November, 2000 have been enacted. These regulations make provision for procedures to be followed in the event of an appeal against a recommendation that an Applicant should not be granted refugee status and, essentially, provide that such an appeal shall be considered by an independent refugee appeals tribunal. However, prior to the enactment of those regulations and, in particular, insofar as this Applicant’s application for refugee status is concerned, his appeal against the decision of the first named Respondent to refuse him refugee status was heard by the second named Respondent (Mr. Aidan Eames), who was appointed by the first named Respondent for that purpose and, in turn, the recommendation of the second named Respondent following the hearing of that appeal was considered and adjudicated upon by an officer in the Asylum Division of the Department of Justice, Equality and Law Reform, who was also appointed by the first named Respondent for that purpose. Accordingly, it was submitted on behalf of the Applicant that the said decision lacked independence because, essentially, it amounted to the first named Respondent endorsing a recommendation that had been made by himself, in that, both the recommendation and the decision thereon had been made by officers duly appointed by him for those specific purposes. Accordingly, it was submitted that the procedure followed offended a basic principle of Irish law that no person should act as a Judge in his own cause. In this regard, Counsel for the Applicant referred to a decision of the High Court given the 27th of June, 1974 in a case of Sean O’Donoghue -v- The Veterinary Council (1975 I.R.) which is undoubtedly an authority for that proposition.

4. Apart from the foregoing, Counsel on behalf of the Applicant submitted that the error in the description of the Applicant’s origins; an error which, incidentally, was conceded on behalf of the Respondents, vitiated the decision made on foot of that recommendation because the country of origin of the Applicant was an essential detail to be taken into consideration by the deciding officer when considering the recommendation of the Appeal Authority. In this regard, Counsel on behalf of the Applicant rejected as being totally unacceptable a suggestion in the Statement of Opposition filed on behalf of the Respondents that the admitted error with regard to the Applicant’s country of origin in the said recommendation was merely a typographical error and of no consequence for the reason that the decision on foot of that recommendation was made before the error was conceded by the Appeals Authority and, therefore, was based on a false premise.

5. Counsel on behalf of the Respondents argued that the essence of the Applicant’s case appeared to be that the decision of the deciding officer of the 30th of July, 1999 was irrational; a point which Counsel for the Applicant appeared to adopt when replying to the argument on behalf of the Respondents but, if it is, it is not a case which is pleaded on behalf of the Applicant and neither is it the subject matter of the Order of Mr. Justice O’Caoimh made on the 29th of February, 2000. Accordingly, it is my view that it is not an issue that I am required to decide in these proceedings and I do not propose to do so.

6. Counsel on behalf of the Respondents also submitted that the rights of the Applicant insofar as his application for recognition of refugee status is concerned were limited to the procedures laid down in the “ Hope Hanlon procedures ” to which reference has already been made and, in that regard, he submitted that the procedures followed in this case were in accordance with those procedures and that, therefore the Applicant had no legitimate complaint with regard to the manner in which his application for refugee status had been dealt with. In particular, Counsel for the Respondents submitted that the decision of the Court in the case of O’Donoghue -v- The Veterinary Council , hereinbefore referred to, was irrelevant in the context of this case, in that, that case was concerned with wrong doing and there is no complaint of wrong doing in this case. Moreover, given that, at the material time, there was no legislation in force with regard to the matters of which the Applicant complains, no one, other than the first named Respondent, was empowered to make a final decision with regard to the Applicant’s application for refugee status and, in particular, the first named Respondent could not delegate responsibility for making that decision to anyone else. Accordingly, it was submitted that the first named Respondent had no alternative but to follow the “ Hope Hanlon procedures ”.

7. Furthermore, Counsel for the Respondents submitted that the admitted error with regard to the Applicant’s country of origin in the said recommendation is an error of fact which is not reviewable by way of Judicial Review. In support of that proposition, reference was made to a judgment in the High Court of Ms. Justice Carroll delivered on the 22nd February, 1984 in a case of the State at the prosecution of Corus Iompar Eireann -v- An Bord Pleanala , which, apparently, has never been reported; in the course of which judgment the learned Trial Judge, with regard to an error which appeared on the face of an order of An Bord Pleanala which was then been reviewed, stated “the error is an error of fact and in order for Certiorari to lie, an error of fact must produce an error of law. It seems to me that the mistake of fact is not a mistake that goes to the jurisdiction of the Bord. The Bord by this mistake has not given itself power which otherwise it would not have.”

8. While I accept the simple proposition, as stated by Ms. Justice Carroll in the State at the prosecution of Corus Iompar Eireann -v- An Bord Pleanala that Certiorari does not lie in respect of an error of fact, it is equally clear from that judgment that Ms. Justice Carroll recognised the possibility of a mistake of fact which is so basic that it deprives the adjudicator of jurisdiction to make an adjudication, in which event the decision is susceptible to review by way of Judicial Review. That recognition, whether or not Ms. Justice Carroll was aware of the decision at the time, seems to me to flow from the judgment of the Supreme Court given in the case of the State (Holland) -v- Kennedy (1977 I.R. at p. 193) in which, in the course of the judgment of the Court, Mr. Justice Henchy acknowledged that there any number of reasons why a Court, or a Tribunal, vested with powers of a judicial nature, might commence a hearing within jurisdiction but, in the course thereof exceed that jurisdiction thereby rendering its decision liable to review by way of Judicial Review. In this case, on the face of it, Mr. Eames had jurisdiction to make the recommendation which he made on the 13th July, 1999 and, on the face of it, Ms. Grealy had jurisdiction give the decision which she gave on the 30th July, 1999 upholding that recommendation. However, the basis for that recommendation and for that decision was that the Applicant did not qualify for recognition as a refugee within the meaning of Section 2 of the Refugee Act 1996. In that regard, “a refugee” within the meaning of that section, includes a person who, owing to a well founded fear of been persecuted for one or more of the reasons detailed in that section, is outside the country of his or her nationality and is unable, or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. Accordingly, it is clear that the country of origin of an Applicant for refugee status is a vital factor when considering whether or not to recognise that status. While, as I have indicated, the Respondent’s concede that an error was made in the description of the Applicant’s country of origin in the said recommendation, they submit that the error is merely typographical and that, on an analysis of the factual basis upon which the recommendation is founded, it is clear that Mr. Eames was aware of the truth of the Applicant’s origins and that, therefore, his recommendation was based on sound foundations; as was the decision of Ms. Grealy to uphold it. In that regard, reference was made to a letter dated the 2nd March, 2000 addressed by Mr. Eames to Ms. Francis Langan of the Asylum Appeals Unit at the Department of Justice, Equality and Law Reform in which Mr. Eames confirms that his recommendation should have referred to the Applicant’s proper country of origin and that that was his intention when preparing that recommendation. That as it may be, however, that confirmation long post dated Mr. Eames recommendations and Ms. Grealy’s decision to uphold it whereas, taken at their face value, the said recommendation and the decision to withhold same proceeded on an entirely wrong basis, in which event neither Mr. Eames nor Ms. Grealy could have been acting within jurisdiction when arriving at their respective conclusions. Perhaps they both now believe that, notwithstanding the record, their conclusions were properly based and it may well be that they were. However, it seems to me that, when considering this application, I cannot ignore the record; the implications of which are that both the recommendation of the 13th July, 1999 and the decisions of the 30th July, 1999 were made without jurisdiction and, accordingly I am disposed to making appropriate Orders of Certiorari quashing the said recommendation and the decision to uphold it.