The Commissioner refused the applicant a declaration and applied Section 13(6) of the Refugee Act 1996 with the result that the applicant would not have an oral hearing on appeal. The applicant’s legal representatives filed a notice of appeal, requesting the Tribunal to delay making a decision while the applicant sought to quash the Commissioner’s decision on the basis of it being in breach of fair procedures. The applicant was unsuccessful in quashing the Commissioner’s decision informally, and brought proceedings in the High Court. Meanwhile, the Tribunal dismissed the appeal. The applicant then also sought to quash the Tribunal’s decision on the basis that it affirmed the allegedly defective decision of the Commissioner’s office.
The respondent argued that the Commissioner’s decision was no longer open to review in itself as it had merged with the decision of the Tribunal. The Court held, in refusing the relief sought, that the decisions had not merged and that the decision of the Commissioner remained susceptible to review, but that the normal position must be that where an appeal is determined an application has thus gone too far and the High Court will not interfere save where there are special circumstances.
The Court stated that such special circumstances would include:-
(a) the nature of the grounds asserted,
(b) whether they could be considered on appeal,
(c) when the applicant became aware of such grounds,
(d) whether the applicant was prevented from bringing the application before the determination of the appeal,
(e) whether the applicant acquiesced,
(f) the relevant statutory scheme,
(g) the time elapsed and
(h) the fairness of the appeal procedure.
The Court held that the facts of the instant case did not disclose such special circumstances.
