Bugovski and Others v Minister for Justice Equality & Law Reform and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 18 March 2005
• Neutral Citation: [2005] IEHC 78
• Docket Number: [Record No. 888/2003JR]
• Court: High Court
• Date: 18 March 2005

[2005] IEHC 78

THE HIGH COURT

[Record No. 888/2003JR]

BUGOVSKI & BUGOVSKA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL

JUDICIAL REVIEW

BETWEEN

YURI BUGOVSKI OKSANA BUGOVSKA ROMAN BUGOVSKI (A MINOR SUING BY HIS FATHER AND NEXT FRIEND YURI BUGOVSKI) AND EVA BUGOVSKA (A MINOR SUING BY HER MOTHER AND NEXT FRIEND OKSANA BUGOVSKA)

APPLICANTS

AND

THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND REFUGEE APPEALS TRIBUNAL

RESPONDENTS

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(b)

REFUGEE ACT 1996 S13(1)

KILLINEY & BALLYBRACK DEVELOPMENT ASSOCIATION LTD v MIN LOCAL GOVT 1987 112 ILTR 69

GERAGHTY v MIN LOCAL GOVERNMENT 1976 IR 153

GENMARK PHARMA LTD v MIN FOR HEALTH 1998 3 IR 111

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S11(6)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

S (C) & ORS v MIN JUSTICE & AG UNREP SUPREME 27.7.2004

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

K (G) & ORS v MIN JUSTICE & ORS 2002 2 IR 418 2002 1 ILRM 401

MURESAN v MIN JUSTICE 2004 2 ILRM 364

S v MIN JUSTICE 2002 2 IR 163

KARANAKARAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2000 3 AER 449

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

MCELHINNEY v COMMISSIONER OF AN GARDA SIOCHANA UNREP GEOGHEGAN 10.5.1995 1995/10/2803

O v MIN FOR JUSTICE & ORS (BABY O CASE) 2002 2 IR 169 2003 1 ILRM 241

IMMIGRATION

Deportation

Judicial review - Leave - Extension of time - Deportation order made - Fair procedures - Research carried out by RAT member after hearing - Fourteen day time limit - Not absolute limitation period but confers discretion on court - Claims not advised of possibility of applying to High Court for judicial review of refusal of refugee status - Claims not advised of mistakes in member's decision - No clear oversight by lawyers previously acting - No good or sufficient reason for extending period under s 5(2) - Application for leave refused (2003/888JR - Gilligan J - 18/3/2005) [2005] IEHC 78- B (Y) v Minister for Justice, Equality and Law Reform

Mr. Justice Gilligan

1 The first and second named applicants are husband and wife and are the parents of the third and fourth named applicants who are minors. The applicants are all Ukrainian nationals. The applicants entered the State in April, 2001. The first named applicant is appealing against the recommendation of the Refugee Applications Commissioner to refuse him refugee status in accordance with the definition as contained in s. 2 of the Refugee Act,1996, which recommendation was contained in a letter dated the 19th day of June, 2002 and was based on the grounds that the Refugee Applications Commissioner had considered the application pursuant to ss. 11 and 13 of the Refugee Act and had concluded that the first named applicant had not demonstrated a well founded fear of persecution within the meaning of s. 2 of the Refugee Act, 1996 (as amended). By letter dated the 4th day of July, 2002 the applicant's solicitor appealed the recommendation and lodged grounds of appeal. The appeal was heard on 16th September, 2002 and the first named applicant was represented by a solicitor from the Refugee Legal Service and by counsel and the Refugee Applications Commissioner was represented by the presenting officer.

2 The applicant's claim in respect of persecution in the Ukraine was on the basis of his political opinion as he is a member of a political party, UNA-UNSO.

3 The Refugee Appeals Tribunal member gave his decision in the first named applicant's case on 26th day of September, 2002 and he came to the conclusion that the first named applicant had not demonstrated that he held a well-founded fear of persecution for a reason set out in s. 2 of the Refugee Act,1996 (as amended) and he found that the applicant's account was unsatisfactory in terms of credibility and substance and he affirmed the findings of the Refugee Applications Commissioner at first instance and dismissed the applicant's appeal. The relevant decision was notified to the first named applicant by letter dated 9th October, 2002 and the Minister then refused to grant a declaration of refugee status and notified the first named applicant that he proposed to make deportation order in regard to him by letter dated 22nd November, 2002. Representations were then made by the first named applicant's then solicitors as dated respectively 20th December, 2002 and 8th January, 2003 and these representations were considered by the Minister and deportation orders were made on 8th August, 2003 in respect of the first named applicant and the deportation order was notified by letter dated 30th October, 2003.

4 These proceedings were then instituted on 1st December, 2003 and it is accepted on all the applicants behalf that the first named applicant's claim can be regarded as the lead application and the other applications in relation to the issues that arise in this application will depend on the ruling of the court.

5 Pursuant to s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act,2000 an application for leave to apply for judicial review under the order in respect of any of the matters referred to in sub-s. (1) shall -

"(a) be made within the period of fourteen days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made."

6 It is clear that in the circumstances of this case an extension of time is required to challenge the decision of the Refugee Appeals Tribunal as these proceedings have been commenced some thirteen months outside the relevant period of fourteen days.

7 Section 5(2)(b) specifies that an application such as is being made in this instance shall be by motion on notice (grounded in the manner specified in the order in respect of anex parte motion for leave) to the Minister and any other person specified for that purpose by order of the High Court and such leave shall not be granted unless the High Court is satisfied that there are substantial grounds for contending that the decision, determination, recommendation, refusal or order is invalid or ought to be quashed.

8 Accordingly, the applicant has to satisfy this court that there are substantial grounds for contending that the decision of the member of the Refugee Appeals Tribunal dated 26th day of September, 2002 ought to be quashed.

9 In the particular circumstances of this case it is appropriate that I set out the decision of the Refugee Applications Commissioner as dated 9th day of May, 2002 which provides certain very relevant information.

1996

10 2 1.1. I have considered the information and documentation in relation to the application for a declaration made by Yuri Bugovski.

11 3 1.2 Beginning in October 1999, and continuing throughout January 2000, January 2001 and March 2001 the applicant was involved with a group called UNA-UNSO in demonstrations against government. The applicant submitted medical documents pertaining to January, 2001 and March 2001 which would show that he was involved in violent demonstrations at this time. I had gathered information from the first interview about the events surrounding March 2001. At that time the applicant was detained for three to four days by agents of the SBU. After paying $2,000 the applicant was released. A BBC report of 10 March 2001 which I have tabulated as Tab 2 says that the police in Ukraine rounded up two hundred members of an extreme right-wing party UNA-UNSO in connection with protests in Kiev the previous day and they could face criminal charges.

12 4 1.3 In the re-interview I allowed the applicant to cover in detail the circumstances surrounding the events of the end of January 2001. Injuries received by the applicant resulted from riot situations similar to those described earlier. The applicant, a member of UNA-UNSO along with twenty-four others, was the target of police dispersal and apprehension in late January 2001.

13 5 1.4 One of the consistent allegations brought against UNA-UNSO as well as its extreme nationalism is its anti-Semitism. See Tab 3. During the second interview when I asked the applicant about this he said he was not aware of such a position. A UNHCR document which I have tabulated as Tab 4 describes most of the members of UNA-UNSO as young people with military backgrounds and histories of arrest and disorderly conduct. It has also been described in the same document as an essentially fascist grouping formed initially as a loose alliance of right-wing parties. The UK Home Office report for October 2001 which I have tabulated as Tab 5 notes not only the word fascist but refers to the group advocating violence and ethnic intolerance. Further reports which I have tabulated as Tab 6 show UNA-UNSO to be a paramilitary group.

14 2 2.1 The applicant had been involved as a member of UNA-UNSO on at least four occasions since 1999 in anti-government demonstrations. The two most recent, January 2001 and March 2001, for which he submitted medical reports and which he described during interview show that he was along with many others involved in violent clashes with government police. The description of UNA-UNSO which I have gathered from country of origin reports, a BBC report and the Research Directorate, Immigration and Refugee Board of Canada would show them to be ultra-nationalistic and militaristic. Their ideology could be described as in Tab 4 as based on authoritarian rule, militarism, chauvinism and a veiled anti-Semitism.

15 3 2.2 It is considered that this ideology is...