The Applicant, a citizen of Zimbabwe, claimed refugee status in Ireland. The Refugee Applications Commissioner recommended that he not be declared a refugee. The Commissioner’s authorised officer had come to the conclusion that the Applicant was a citizen of Mozambique and that, even if the Applicant was not a citizen of Mozambique, his father was born there and the Applicant would be able to acquire citizenship through his parentage. The Applicant had denied that he was a citizen of Mozambique and asserted that he was a citizen of Zimbabwe only. The RAC further recommended that the Applicant be denied an oral appeal in accordance with section 13(6) of the Refugee Act, 1996, as amended.
The Court considered when it is appropriate to seek judicial review of a decision of the Refugee Applications Commissioner rather than utilising the statutory appeal remedy before the Refugee Appeals Tribunal. The Court found that there should be a two-step assessment: firstly, the Court must determine whether there has been a fundamental flaw or illegality such that a hearing upon appeal before the Tribunal would be an inadequate remedy and that the decision might be quashed; secondly, if is found that the decision might be quashed, the Court should then consider whether to exercise its discretion to grant the order quashing the decision is the appropriate remedy to attain a just result. In that regard, the Court must assess all the circumstances of the case 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 quashing the decision is not granted and the degree of fairness of the procedures.
Applying these principles to the Applicant’s case, the Court found that the failure of the Commissioner’s authorised officer to probe and question the Applicant on the question of his ability to acquire nationality of Mozambique and to tease out the issues to establish the correctness of his view amounted to a fundamental flaw in the investigation process. The Court did not consider the flaw remediable at appeal because the adverse findings on credibility and the lack of an oral appeal open to the Applicant was relevant to this finding. In the circumstances, the Court granted an order of certiorari quashing the Commissioner’s recommendation that the Applicant not be declared a refugee.
