The Applicant, a Guinean national, claimed asylum in Ireland on the grounds that she had been persecuted in Guinea. The Refugee Applications Commissioner (ORAC) did not believe her story and recommended that she not be declared a refugee. She sought leave to challenge by way of judicial review the ORAC recommendation on the grounds that the Commissioner had committed errors of law in its assessment of her credibility and in its evaluation of the evidence she submitted to support her claim. Under s. 5 of the Illegal Immigrants (Trafficking) Act 2000, she was required to show ‘substantial grounds’ for contending that the ORAC recommendation was unlawful. Her appeal to the Refugee Appeals Tribunal (RAT) had already been lodged and was pending at the time of the hearing.
The Court considered first whether it was appropriate to grant leave for judicial review in circumstances where an appeal to the RAT was pending. The Court held that whether a substantial ground for contending that the ORAC recommendation ought to be quashed is closely related to the question of whether the available appeal to the Tribunal is the appropriate remedy. When it is clear that the complaints to be raised are capable of being adequately dealt with on appeal, there is no substantial ground for the purposes of s. 5 of the Illegal Immigrants (Trafficking) Act 2000. The Court summarised the principles emerging from the jurisprudence relating to the availability of an alternative remedy by way of appeal and its bearing upon the exercise of the High Court’s discretion to grant relief by way of judicial review. The Court held that the existence of an appeal is not a barrier to the availability of judicial review but that if the statutory procedure is the more appropriate remedy, the High Court should not get involved. Factors to be considered include the nature and scope of the appeal, the stage at which it arises, whether it includes an oral hearing and whether the type of error alleged could be remedied on appeal.
The Court concluded that leave to apply for judicial review to quash a recommendation of the ORAC should only be granted in exceptional cases and that to bring an application within this category, the Applicant needs to advance substantial grounds for some fundamental flaw or illegality in the report of such gravity that a rehearing upon appeal before the RAT would be inadequate to remedy it. Applying this conclusion to the Applicant’s case, the Court held that the alternative remedy of appeal was an appropriate remedy. Leave for judicial review was refused.
