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Stefan v. Minister for Justice, Equality and Law Reform [2001] IESC 92 (13th November, 2001)
THE
SUPREME COURT
RECORD
NO. 198/00
Denham
J.
McGuinness
J.
Hardiman
J.
BETWEEN/
PETREA STEFAN
APPLICANT
AND
THE
MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,
THE
REFUGEE APPEALS AUTHORITY, IRELAND,
THE
ATTORNEY GENERAL
RESPONDENTS/APPELLANTS
Judgment
of The Hon. Mrs. Justice Susan Denham delivered on the 13th day of November,
2001 [Nem. Diss.].
1. Appeal
1. This
is an appeal by the Minister for Justice, Equality and Law Reform, (hereinafter
referred to as the Minister), the Refugee Appeals Authority, Ireland and the
Attorney General (hereinafter referred to collectively as the respondents)
against an order made by the High Court (Kelly J.) on 8th June, 2000. The High
Court granted an order of
certiorari
in respect of the order of the Minister notified to Petrea Stefan (hereinafter
referred to as the applicant) by letter dated 29th December, 1998, informing
him that his application for refugee status in the State had been refused. It
was ordered that the matter be remitted back to the Minister to be considered
in accordance with law.
2. Facts
2. The
applicant is a Romanian national who arrived in Ireland in 1998 and applied for
refugee status. He was furnished with a questionnaire which he returned to the
respondents on the 1st May, 1998. Subsequently he was notified of and attended
at an interview that took place on the 22nd June, 1998. The application was
assessed and a decision was made to refuse the applicant refugee status, which
was notified to him by the said letter dated the 29th December, 1998. An
appeal form was lodged on the 11th January, 1999. Following further
correspondence the applicant was notified by letter of the 2nd March, 1999 of
the appeals procedure and furnished with all the material upon which the
decision to refuse refugee status had been taken. By letter dated the 22nd
March, 1999 the applicant was notified that the appeal hearing was scheduled
for the 21st April 1999. By a letter dated the 14th April, 1999 the applicant
challenged the decision to refuse refugee status and requested that it be
rescinded. On the 20th April, 1999 the applicant applied for and was granted
leave to apply for judicial review on a number of grounds. The application was
heard on the 8th June, 2000 and an order of
certiorari
was granted on the grounds that the questionnaire submitted by the applicant
had not been fully translated and accordingly the decision to refuse refugee
status was made in circumstances where the entire of the material submitted by
the applicant was not considered.
3. A
key document in this matter is the letter written by Ms. Molyneux on the 29th
December, 1998 informing the applicant of the finding against him. That letter
stated,
inter
alia
:
“I
am directed by the Minister for Justice, Equality and Law Reform to refer to
your application for refugee status in the State.
Your
application has been considered on the basis of the information you provided in
support of it, both in writing and at interview, and it has been
decided
that your application is not such to qualify you for refugee status
in
accordance with the definition contained in the 1951 Convention relating
On
the basis of the information available you have not fulfilled the requirements
of the refugee definition under Article 1A of the 1951 Convention. You have
not established a well founded fear for any Convention reason, and furthermore
your account lacks credibility in many respects.
It
is open to you to appeal this decision. If you wish to lodge an appeal against
the decision you must do so by notifying the Asylum Appeals Unit of the Asylum
Division, Department of Justice, Equality & Law Reform, Timberlay House,
79-83 Lower Mount Street, Dublin 2 in writing within 14 days of the date of
this letter. Any further information which you wish to submit to support your
case should be forwarded to the Asylum Appeals Unit of the Asylum Division
within that time limit. Asylum Appeals Section will advise you of the
procedures which apply for processing an appeal following receipt of written
notification of your intention to appeal.. . . ”
4. The
translation of the questionnaire filled in by the applicant was incomplete in
that the applicant’s reply to question 84 was incomplete in the English
translation. As was deposed to by Brendan Toal, on behalf of the applicant, in
his affidavit of the 20th April, 1999:
“Question
84 of the questionnaire is as follows:-
‘Why
are you seeking asylum? (give full details of your claim, bearing in mind that
you must demonstrate a well founded fear of being persecuted for reasons of
race, religion, nationality, membership of a particular social group or
political opinion and are unable or unwilling to avail yourself of the
protection of your country of origin or residence) - extra pages may be
used.’
5. As
appears from exhibit B the Applicant replied to this question with approx. two
and a half pages of cursive script. The English translation is incomplete, in
that after the word ‘finish’ at line 10 thereof, the following
should appear (per translation provided on 20th April 1999 by a translation
agency):-
‘school
and get their leaving cert. Then my family and myself exiled to Roman,
it’s a neighbouring city to the one I was born and grew up in. My wife
and children were very distressed and could not come to terms with why I took
the decision to move. They asked me why all the time. I told them lots of
excuses. My wife and children told me about things that happened to them. The
children said older children in school were threatening them and they did not
want to go to school They said, they
would
end up worse that
(sic)
Ceausescu. The threats were not only from students, they were from people in
the street who were unknown to them. For a period of time I tried to avoid
certain places and streets to avoid any threats. But anywhere I applied for
work they required the records from my last employment. After I produced my
records I had to wait a few days to hear if I got work. All the answers were
that they could not give me work. They told me that they could not give me
work. They told me that I would not get work anywhere, maybe, if there is
another revolution I will get work. These events were what force me to move to
roman city.’”
3. The
High Court
6. The
High Court (Kelly J.) held:
“The
entire answer to question 84 was not before the Officer who made the decision.
As he didn’t have all the information then prima facie the decision
was
defective. The defect can be looked at in either of two ways. First, it can
be said that the decision in suit was ultra vires the Minister insofar as in
making the order all of the written submissions validly made to the Minister
were not considered by him. Secondly, it can be said to have been a decision
arrived at in breach of fair procedures in that the question was not considered
fully as a result of the omissions in the translated Questionnaire.
The
question that arises is whether or not certiorari should be ordered as a result
of the defect. The first consideration that has been put to me on behalf of
the respondents is that as the information is of no or so little relevance
certiorari should not be ordered. I am not convinced it is necessarily
appropriate for me to look at the relevance of the omitted information. But
without deciding whether it is or is not appropriate, it cannot be said that
the omitted information in this case was in fact immaterial. There are two
reasons for this. First, the clear tenor of Mr. Cummins’ assessment
makes reference to matters touched upon in the omitted material. Secondly, the
credibility of the applicant was considered in the said assessment. I do not
have to sit in Mr. Cummins’ chair and make his decisions but I reject the
notion that I should treat the omitted material as irrelevant.
The
second question that arises then is whether or not the appeals mechanism which
was available to the applicant from the decision constituted an adequate
alternative remedy to that of the Judicial Review. The appeal to the Refugee
Appeals Authority is not in the form of a re-hearing. It is in the nature of a
review that can be conducted;
1. By
means of a review of documents; or
2. If
a request by an oral hearing is made it must be granted and
the
Refugee Appeals Authority hears testimony and reviews
the
documentation.
It
is argued that the procedure before the Refugee Appeals Authority is a cure for
the complaints made in the present case. I do not agree. It does not seem to
me
that
this form of review is such that the certiorari should not go. No criticism is
made of the Hope Hanlan procedure. This provides for a hearing at first
instance. The review is premised on a full and proper hearing having taken
place before the Deciding Officer. This was not present in this case.
Even
if I am wrong in this, even if a full rehearing was available I take the view
that it would be unsatisfactory. An insufficiency of fair procedures at first
instance is not cured by a sufficiency on appeal.
It
is not necessary for me to embark on a consideration of the second argument -
that being the alleged substandard performance of the Interpreter and I do not
propose to make any finding thereon.
I
therefore grant certiorari directed to the decision made and that decision will
be quashed and the recommendation by Mr. Cummins must likewise fall. I
therefore quash the recommendation and decision made on foot of the
recommendation dated the 29th December, 1998. The matter will be remitted for
interview before an Officer of the Department of Justice, Equality and Law
Reform other than Mr. Cummins on the basis of the Questionnaire as already
completed by the Applicant.”
4. Grounds
of Appeal
7. The
respondents appealed the said order of the High Court on the following grounds:
1.
That the trial judge erred in law and in fact in finding that the appeal to
the Refugee Appeals Authority was not a rehearing but was more of a review.
2.
That the learned trial judge erred in law and in fact in finding that a full
and proper hearing was a prerequisite of a full and proper appeal.
3.
That in exercising his discretion the learned trial judge failed to consider
whether the appeal to the second named respondent was adequate to remedy the
error complained of.
4.
That the learned trial judge erred in law and in fact in exercising his
discretion in favour of the applicant in circumstances where the relief was
unnecessary to protect the applicant’s rights.
5.
That in exercising his discretion the learned trial judge failed to take
into account the fact that in determining the issue in question, namely whether
the applicant is a refugee, the Refugee Appeals Authority would be in
possession of all relevant material.
6.
That in exercising his discretion the learned trial judge failed to take
into account the fact that at the hearing of appeal before the Refugee Appeals
Authority there would be an oral hearing at which it would be open to the
applicant to advance any reasonable argument in support of his claim.
7.
That in exercising his discretion the learned trial judge failed to take
into account the fact that in hearing the appeal so far as relevant the second
named respondent would be in a better position than the court to determine
whether the error complained of was material to the decision.
8.
That in exercising his discretion the learned trial judge failed to take
into account the fact that the appeals procedure was designed to correct errors
and to this end it specifically provides that all material upon which the
original decision was based be furnished to the applicant.
5. Submissions
8. Mr.
Frank Callanan, S.C., counsel on behalf of the respondents supplied written
submissions and made oral submissions to the court. In summary the written
submissions submitted that the applicant’s complaint is adequately met by
the appeal procedure provided in the Hope Hanlan letter. It was submitted that
the procedure may be said to form part of a single, undivided process or
alternatively to constitute an adequate alternative remedy. On either
approach, it was submitted that having heard all the circumstances of the case,
this is a case in which the learned trial judge of the High Court misdirected
himself in law in granting an order of
certiorari
and that the respondents’ appeal ought to be allowed.
9. Mr.
Gerard Hogan, S.C., counsel on behalf of the applicant, provided written
submissions and made oral submissions to the court. In conclusion, in the
written submissions, it was submitted that the decision of the Minister
notified to the applicant on the 29th December, 1998 was
ultra
vires
the Minister insofar as in making the order all of the written submissions
validly made by the applicant were not considered by him and secondly because
it was a decision arrived at in breach of fair procedures in that the
application was not considered fully as a result of the omissions in the
translated questionnaire. It was submitted that judicial review should be
available to the applicant in respect of the original decision, that the
Refugee Appeals Authority hearing is not sufficiently adequate to warrant
withholding
certiorari.
In those circumstances it was submitted that the appeal ought to be dismissed.
6. Decision
10. In
effect there are two issues to be determined on this appeal. First, whether
the process under the Hope Hanlan letter is a single undivided process.
Secondly, whether
certiorari
should lie in view of the alternative remedy of appeal to the Appeals Authority.
11. The
first issue, as to the process under the Hope Hanlan letter, was not the
strongest of the issues raised by the respondents. The administrative
procedures which applied to the applicant’s application were set out in
the letter dated 10th December, 1997 from the Minister to Ms. Hope Hanlan. The
letter sets out the process which includes at paragraph 11:
“11.
A person duly authorised by the Minister will make a decision based on the
information made available during the process described above. The applicant
will be notified by registered post of the decision and of the reasons for it,
and (if the decision is negative) of the right to appeal the decision within 14
days of the notification being sent, setting out the grounds on which the
appeal is based. The applicant in his or her notice of appeal shall specify if
an oral hearing is required.”
12. Thereafter
the letter deals with the accelerated procedure of “manifestly
unfounded” cases. The matter of appeals is covered in paragraphs 15 to
18 as follows:
“Appeals
15.
Where an appeal is made within the specified time against a decision
(other than in manifestly unfounded cases or in cases deemed to be abandoned
(see paragraph 20) to refuse refugee status, the applicant will be supplied
with all of the material (other than material which has been supplied to the
Department on the basis that it will not be disclosed further) on which the
decision was based. The appeal will be determined by an Appeals Authority, a
person independent of the Minister and the Department with at least ten
years’ practice as a solicitor or barrister appointed by the Minister for
this purpose (more than one such person may be appointed). The Appeals
Authority will be provided with all of the information provided to the
applicant and with such submissions as may be made by or on behalf of the
applicant in connection with the appeal. The Appeals Authority will make a
decision based on the papers only or, where the applicant has so requested,
following an oral hearing.
16.
Where an applicant fails to attend at an appeal hearing, having requested
and being granted an oral hearing an having been duly informed of the date
thereof, the appeal shall be considered on the basis of written documentation
already available to the Appeals Authority.
17.
The Appeals Authority will make a recommendation to the Minister as to
whether refugee status should be granted.
18.
A duly authorised officer of the Department will make a final decision on
refugee status on behalf of the Minister based on the recommendation of the
Appeals Authority, but subject to considerations of national security or public
policy.”
13. While
the whole process is a procedure culminating ultimately in a decision on
refugee status on behalf of the Minister by a duly authorised officer of the
Department of Justice, Equality and Law Reform based on the recommendation of
the Appeals Authority, subject to considerations of national security or public
policy, the procedure itself has to be analysed to see whether within the
process there are two separate distinct decisions. I am satisfied that there
are. The Hope Hanlan letter itself in plain language refers to the primary
part of the process as culminating in “a decision”: see paragraph
eleven. It is so described again in the first line of paragraph fifteen.
Further, the Appeals Authority is described also as making “a
decision” on the papers only or (if so requested) following an oral
hearing. The clear words create a two tier process with two separate
decisions. That this is plainly the situation is apparent also from the
underlying policy apparent on the face of the document, the policy to have a
transparent, credible and independent process. An example of such policy can
be seen in paragraph fifteen:
“
. . . The appeal will be determined by an Appeals Authority, a person
independent of the Minister and the Department with at least ten years practice
as a solicitor or barrister appointed by the Minister for this purpose . .
.”
14. For
the purpose of the analysis for judicial review I am satisfied that the Hope
Hanlan letter process is bifurcated. It will involve two decisions, if an
applicant appeals to the Appeals Authority. The decision furnished to the
applicant by letter dated the 29th day of December, 1998 was a final decision
on the applicant’s application for refugee status subject to his right of
appeal, which if taken would involve a second decision. On this first issue of
the appeal the respondents fail, in my view.
Certiorari
may lie in relation to the decision on the application for refugee status.
15. The
second issue was pressed, on behalf of the respondents, as the stronger ground
of appeal. Counsel submitted that
The
State (Abenglen Properties Limited) v. Dublin Corporation
[1984] IR 381 should be applied and on its application the respondents would
succeed. There being the alternative remedy of appeal (including the right of
an oral hearing) it was submitted that the High Court erred in the exercise of
its discretion in granting an order of
certiorari.
In
State
(Abenglen Properties Ltd.) v. Dublin Corporation
[1984] IR 381 Henchy J. at
p.
405 stated:
“.
. . where Parliament has provided a self-contained administrative and quasi-
judicial scheme, postulating only a limited use of the Courts, certiorari
should not issue when, as in the instant case, use of the statutory procedure
for the correction of error was adequate (and, indeed, more suitable) to meet
the complaints on which the application for certiorari is grounded.”
16. Other
cases have recognised that a judicial review is discretionary and may be
refused where there is an adequate alternative remedy; see
The
State (Glover) v. McCarthy
[1981] ILRM 46;
Nova
Colour Graphic Supplies Ltd. v. Employment Appeals Tribunal
[1987] IR 426;
Memorex
v. Employment Appeals Tribunal
[1992] IR 184;
McGoldrick
v An Bord Pleanala
[1997] 1 IR 497.
17. However,
to take the above quotation of Henchy J. in
Abenglen
in isolation is too simplistic an approach in light of the judgment as a whole.
An analysis of the judgment of Henchy J. in
Abenglen
indicates a comprehensive approach to the issues. There were several reasons
for refusing
certiorari.
First, Henchy J. held that where an inferior court or a tribunal errs within
jurisdiction without recording that error on the face of the record,
certiorari
does not lie. He stated that it was only in such cases when there is the extra
flaw that the court or tribunal acted in disregard of the requirements of
natural justice that
certiorari
will issue. In
Abenglen’s
case there was no suggestion that the respondents acted in disregard of the
requirements of natural justice. However, in this case, there was the error of
omission of part of the evidence before the decision maker. Such a situation
brings into consideration the basic fairness of the procedures. Henchy J. gave
two further reasons in
Abenglen
why
certiorari
should not issue. First, the merits of the application were considered.
Henchy J. considered that if it could be held that the respondents acted in
excess of jurisdiction the granting of
certiorari
would be a matter of discretion for the court for no benefit would accrue to
Abenglen
by the granting of the order. However, counsel for
Abenglen
admitted that the only purpose of the application to quash the
respondent’s decision was a technical one to gain monetary advantage.
Counsel for
Abenglen
sought to quash the decision so that it could lay claim to a grant of
development permission by default, greatly to their advantage. Henchy J. found
the process of the reasoning totally unacceptable. He stated at p. 401:
“.
. . Since the ability to make such a contention successfully is the only reason
for bringing these certiorari proceedings, an absolute order of certiorari
would be worthless to Abenglen. In such circumstances,
the
grant of certiorari is a matter of discretion, and it does not seem to me that
it could be a proper exercise of the Court’s discretion to grant
certiorari when the sole purpose of the quashing is the attainment of an object
which is legally unattainable. That being the position here, even if the
respondents made a decision which they had not the required jurisdiction to
make, Abenglen, on their own admission regarding the reason for bringing their
application for certiorari, have no standing to have that decision
quashed.”
18. The
circumstances are entirely different and distinguishable in this case. Certain
evidence of the applicant was not before the decision maker. The finding of
the learned trial judge that
“.
. . it cannot be said that the omitted information was immaterial” was
not challenged. This was correct in my view. Clearly the applicant has
standing and on the facts his merits, unlike the situation in Abenglen, cannot
be impugned. An order for
certiorari
would not be worthless, it would enable the primary decision be made in light
of all the evidence. In such a circumstance the purpose is entirely different
to that in
Abenglen.
Secondly,
Henchy J. refused to grant
certiorari
even if the respondents in
Abenglen
acted in excess of jurisdiction because the correct procedure for the
correction of the legal errors complained of lay in an appeal to An Bord
Pleanála. He stated at p. 404:
“The
present case does not seem to me to exhibit the exceptional circumstances for
which the intervention of the courts was intended. On the contrary, certiorari
proceedings would be singularly inapt for the resolution of the questions
raised by Abenglen.. . .
.
. . Because of the technicality of the objections raised by Abenglen, because
the resolution of these objections require oral evidence, and because the
resulting decision would probably govern cases, past, present or future, I
would in the exercise of my discretion, refuse
certiorari
on the ground that Abenglen should have pursued the appellate procedure that
was open to them under the Acts.. . .”
19. The
entire passage containing the oft quoted passage cited previously states:
“I
pause to stress that the primary reason why I would refuse certiorari in this
case is because the alleged errors of law were not made in excess of
jurisdiction and do not appear on the face of the record of the
respondents’ decision. I am merely explaining why I would exercise my
discretion against Abenglen in the event of the Court deciding that certiorari
lies as a matter of discretion. Such an exercise of my discretion would appear
to accord with the practice in the United States, which is stated as follows in
14 Am. Jur. 2d, p 787 - ‘Under the prevailing practice, a writ of
certiorari will not issue if there is another adequate remedy, such as an
appeal or writ of error, an action at law or in equity, or intervention with
the right of appeal secured. It is only in cases of unusual hardship and in
the furtherance of justice that the use of the writ of certiorari is permitted
to
supplement
the method of review expressly provided by statute.
’
I have added the emphasis. It may be that not all the limitations in that
passage on the issue of
certiorari
accord with the law as it has evolved in this jurisdiction; but where
Parliament has provided a self-contained administrative and quasi-judicial
scheme, postulating only a limited use of the Courts, certiorari should not
issue when, as in the instant case, use of the statutory procedure for the
correction of error was adequate (and, indeed, more suitable) to meet the
complaints on which the application for certiorari is grounded.”
20. It
is clear that the above analysis related to circumstances very different to the
circumstances of this case and that insofar as principles were applied there
they would not be so applicable in this case. A theme throughout that judgment
is the protection of fairness of procedures. Hederman J. agreed with the
judgment of Henchy J. Griffith J. agreed also but stated at p. 406:
“With
the reservation hereinafter mentioned, I agree with the judgment delivered by
Mr. Justice Henchy. The primary reason given by him for refusing certiorari in
this case is that the errors of law alleged to have been made by the respondent
planning authority were not made in excess of jurisdiction and do not appear on
the face of the record of their decision. Notwithstanding that this was his
primary reason, as I am in complete agreement with the other reasons given by
him refusing
certiorari,
and which are adequate to determine this appeal, I do not consider it is
necessary to decide or offer an opinion on that question.”
21. It
is clear that Griffin J. was referring to aspects such as the furtherance of
justice, the protection of fair procedures.
22. While
the reasoning of Henchy J. is somewhat different from that of the Chief Justice
the core principle is similar. O’Higgins C.J. refused to grant
certiorari.
He
stressed the importance of retaining the discretion of the court to attain
justice. He stated at p. 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 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 is
not adequate.”
23. Walsh
J. grounded his judgment in the concept of justice. He stated at p. 398:
“There
is no doubt that the existence of alternative remedies is not a bar to the
making of an order of
certiorari.
A court, in its discretion, may refuse to make such an order when the
alternative remedy has been invoked and is pending. However, a court ought
never to exercise its discretion by refusing to quash a bad order when its
continued existence is capable of producing damaging legal effects. A
court’s discretion cannot in justice be exercised to produce or permit a
punitive or damaging result to be visited upon an applicant as a mark of the
court’s disapproval or displeasure when such result flows from, or is
dependent upon, an order which is bad in law - even when the applicant (by his
conduct or otherwise) has contributed to the making of such an order. Such
conduct can be dealt with in deciding the question of costs.”
24. The
approach taken in subsequent cases illustrates that the words of Henchy J.
should be read in their context and that in each case the circumstances, the
facts, the appeals and processes being considered, must be considered. For
example, in
P.
& F. Sharpe Ltd. v. Dublin City and County Manager
[1989] IR 701, the respondents refused the applicants planning permission to
build an access road onto a new dual carriageway. The applicants sought
certiorari
quashing the respondents’ refusal of the planning permission. The
respondents argued that as the applicants had commenced an appeal to An Bord
Pleanala they should be confined to that remedy and
certiorari
should be refused on discretionary grounds. Finlay C.J. stated at
p.
721;
“The
powers of An Bord Pleanala on the making of an appeal to it would be entirely
confined to the consideration of the matters before it on the basis of proper
planning and development of the area and it would have no jurisdiction to
consider the question of the validity, from a legal point of view, of the
purported decision by the county manager. It would not, therefore, be just for
the developers who are respondents in this appeal to be deprived of their right
to have that decision quashed for want of validity.”
In
Mythen
v. Employment Appeals Tribunal
[1990] 1 IR 98 the court quashed the decision of the Employment Appeals
Tribunal on the ground that it had misapplied the Council Directive 77/187/EEC
of 14th February, 1997 on the Approximation of Laws on Safeguarding Employees'
Rights in the Event of Transfers of Undertakings, Businesses or Parts of
Businesses. Barrington J. decided that
certiorari
should not be refused on the ground that the applicant should have appealed to
the Circuit Court.
25. In
a criminal law case the High Court (Lynch J.) has upheld the right to judicial
review when there is the alternative of an appeal. In
Gill
v. Connellan
[1988] ILRM 448 the applicant had not received a satisfactory hearing before
the District Court and the question was whether an appeal to the Circuit Court
was an adequate alternative remedy. Lynch J. held at pp. 454-455 that it was
not, stating:
“In
the present case however, both facts and law are at issue. Neither the facts
nor the law have been adequately heard in the District Court. On an appeal to
the
Circuit Court, therefore, the appeal could hardly be said to be by way of
re-hearing - the case would more truly be heard for the first time. The
applicant and his solicitor would be deprived of the possible advantage of
having gone over the whole facts and law and having heard the submissions and
cross examination by the prosecuting superintendent in the District Court.”
26. It
is clear that whilst the presence of an alternative remedy, an appeal process,
is a factor, the court retains jurisdiction to exercise its discretion to
achieve a just solution.
27. The
stage of the alternative remedy may be relevant, though it may not be
determinative of the issue. This is a case where an appeal had been lodged but
had not been opened. It is therefore a situation to be distinguished from that
in
The
State (Roche) v. Delap
[1980] IR 170.
28. In
this case the appeal is pending. It is for the court to determine in the
circumstances whether judicial review is an appropriate remedy. The presence
of the pending appeal is not
a
bar to the court exercising its discretion. It is a factor to be considered.
It is a matter of considering the requirements of justice. This has been
expressed clearly in
McGoldrick
v. An Bord Pleanala
[1997] 1 IR 497 at 509 by Barron J.:
“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 where the applicant has
taken steps to pursue such remedy. The true question is which is the more
appropriate remedy in the context of common sense, the ability to deal with the
questions raised and the principles of fairness; provided, of course, that the
applicant has not gone too far down one road to be estopped from changing his
or her mind. Analysis of the authorities referred to shows that this is in
effect the real consideration.”
In
Buckley
v. Judge Brian Kirby and the Director of Public Prosecutions
,
Unreported, Supreme Court, 18th July, 2000, Geoghegan J. adopted the view of
Barron J.
Certiorari
may be granted where the decision maker acted in breach of fair procedures.
Once it is determined that an order of
certiorari
may be granted the court retains a discretion in all the circumstances of the
case as to whether an order of
certiorari
should
issue. In considering all the circumstances matters, including the existence
of an alternative remedy, the conduct of the applicant, the merits of the
application, the consequences to the applicant if an order of
certiorari
is not granted, the degree of fairness of the procedures, should be weighed by
the court in determining whether
certiorari
is the appropriate remedy to attain a just result.
29. In
this case the decision of the Minister notified to the applicant by letter
dated the 29th day of December, 1998 was a decision made in breach of fair
procedures in that evidence, which was not immaterial, was not before the
decision maker because of the section omitted from the translation. The
application was not considered fully as a result of the omissions in the
translated questionnaire. This was a breach of fair procedures. It cannot be
said that the omitted information was immaterial both because of the nature of
the decision made on the information and because of the determination as to the
credibility of the applicant. Consequently the procedures were unfair. There
may well be many instances where omissions in translation occur but which are
not
such as to render the proceedings unfair. However, in this case in light of
the material omitted there was such an omission as to be a breach of fair
procedures. Consequently an order of
certiorari
may lie. It was for the High Court to exercise its discretion and determine
whether the order of
certiorari
would be appropriate. I would not interfere with the discretion exercised by
the High Court. I am of the opinion that the learned High Court judge was
correct in granting the order of
certiorari.
The original decision was made in circumstances which were in breach of fair
procedures and which resulted in a decision against the appellant on
information which was incomplete. The Appeals Authority process would not be
appropriate or adequate so as to withhold
certiorari.
The applicant is entitled to a primary decision in accordance with fair
procedures and an appeal from that decision. A fair appeal does not cure an
unfair hearing. Consequently I am satisfied that the appeal should be dismissed.
7. Conclusion
30. For
the reasons stated I would uphold the decision of the High Court to grant an
order of
certiorari.
I would dismiss the appeal and affirm the order of the High Court being that
the matter be remitted back to the first named respondent to be considered (by
a person other than Mr. Cummins) in accordance with law.
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