A (C I) v Min for Justice & Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms. Justice Mary Irvine
• Judgment Date: 30 June 2009
• Neutral Citation: [2009] IEHC 281
• Court: High Court
• Date: 30 June 2009

[2009] IEHC 281

THE HIGH COURT

[No. 176 J.R./2009]

A (C I) v Min for Justice & Refugee Appeals Tribunal

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT, 2000, SECTION 5 OF THE REFUGEE ACT, 1996 (AS AMENDED), AND IN THE MATTER OF THE IMMIGRATION ACT, 1999 (AS AMENDED)

BETWEEN:

C.I.A.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

AND

THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

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

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9

EEC DIR 2004/83 ART 4(3)

REFUGEE ACT 1996 S13(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

S v MIN FOR JUSTICE & ORS 2002 2 IR 163 2002/24/6257

MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364 2003/38/9156

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

S (C) & ORS v MIN FOR JUSTICE & AG 2005 1 IR 343 2005 1 ILRM 81 2004/45/10305 2004 IESC 44

K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

BUGOVSKI & BUGOVSKA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP GILLIGAN 18.3.2005 2005/6/1153 2005 IEHC 78

KRAMARENKO v REFUGEE APPEALS TRIBUNAL & ORS 2005 4 IR 321 2004 2 ILRM 550 2004/26/6170

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 2(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 195

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 196

Abstract:

Immigration - Judicial review - Certiorari - Refugee Appeals Tribunal - Time limits - Discretion to extend time limit within which application for leave to apply for judicial review made - Whether good and sufficient reasons advanced for extending time limit - Whether leave to seek judicial review should be granted - Illegal Immigrants (Trafficking) Act 2000, section 5(2).

Facts the applicant's appeal against the recommendation of the Refugee Applications Commissioner refusing him asylum was refused by the Refugee Appeals Tribunal. That decision was communicated to the applicant on the 16th October, 2008. The applicant sought, in February 2009, to quash that decision by way of judicial review, contending, inter alia, that the respondent had failed to take certain information into consideration, including country of origin information. The application was, by virtue of section 5(2) of the Illegal Immigrants (Trafficking) Act 2000, which provides, inter alia, that an application for leave to apply for judicial review shall "be made within the period of fourteen days commencing on the date on which the person was notified of the decisionunless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made", some four months out of time. The applicant, accordingly, sought an extension of the time limit for making the application.

Held by Irvine J in refusing the applicant leave to seek the reliefs sought that section 5(2) of the Act of 2000 imposed a strict statutory time limit for the bringing of judicial review proceedings and an extension of time thereunder could not be equated to an extension of time which was sought in respect of procedural time limits which were fixed by the rules of court where a more sympathetic view could be taken of a breach of such time limits. By virtue of the doctrine of the separation of powers, if the court were to customarily and on a continuous basis, permit extensions of time beyond the statutory time limits provided the court would be effectively rewriting the legislation and replacing the will of the Oireachtas with that of the Court.

In assessing whether there were good and sufficient reasons to extend time, the following factors should be considered: the period of delay; any prejudice to the respondent; the reasons given for the delay; whether the applicant had an intention to apply within the stated time limits; whether the matters relied upon for the extension of time were on affidavit and; the strength of the applicant's case on the merits. The applicant had not shown good and sufficient reasons such that the discretion to extend time under section 5(2) of the Act of 2000 should be exercised.

Reporter: P.C.

1 JUDGMENT of Ms. Justice Mary Irvine delivered the 30th day of June, 2009

2 This is an application for leave to seek judicial review, in which the applicant seeks, inter alia, an order of certiorari of the decision of the Refugee Appeals Tribunal (the "RAT") not to grant the applicant refugee status notified to the applicant by letter dated 14 ^th October, 2008, and, by extension, the decision of the Minister for Justice, Equality and Law Reform to issue a proposal to deport the applicant notified to the applicant by letter dated 14 ^th November, 2008. The applicant seeks an extension of the time limit for the making of this application, pursuant to section 5(2)(a) of the Illegal Immigrants (Trafficking) Act, 2000.

3 The grounds upon which relief is sought can be summarised as follows:-

4 1. In concluding that the applicant did not have an objectively well-founded fear of persecution, the Tribunal member failed to have any or adequate regard to the fact that the applicant had already been subjected to police brutality when he was detained for two months and beaten in police custody, and, by reason thereof, was entitled to the benefit of a presumption that he would be subject to persecution upon his return to Nigeria.

5 2. The Tribunal member failed to have any or adequate regard to the fact that the applicant, as a homosexual man in Nigeria and a member of a particular social group, could be subject to acts of persecution, within the meaning of Regulation 9 of the European Communities (Eligibility for Protection) Regulations 2006, without necessarily being liable to execution.

6 3. The Tribunal member failed to have any or adequate regard to reputable country of origin information submitted to the said respondent at the time of the decision, which demonstrates that 18 men had been arrested for alleged sodomy, which is punishable under Sharia law by death by stoning, and were awaiting trial.

7 4. The Tribunal member failed to have any or adequate regard to reputable country of origin information available to the said respondent at the time of the decision, which demonstrates that Nigerians are liable to arbitrary arrest and detention, as well as police brutality and lengthy prison sentences by reason of engaging in homosexual activity.

8 5. The Tribunal member acted ultra vires the Refugee Act, 1996 (as amended), as interpreted in accordance with Article 4(3) of CouncilDirective 2004/83/EC in failing to take account of all relevant facts as they relate to the country of origin at the time of taking his decision on the applicant's asylum application, including all the relevant statements and documentation presented by the applicant including information on whether the applicant has been or may be subject to persecution or serious harm.

Background facts

9 The applicant is a Nigerian national who sought asylum in Ireland in or about 10 ^th of June 2008. On 11 ^th June 2008, the applicant completed a questionnaire in which the following facts, amongst others, are revealed:-

10 1. The applicant was born on 16 ^th of July 1986 and is a citizen of Nigeria.

11 2. For the last eighteen years, the applicant has resided in Benin city with his father. His mother is deceased and the whereabouts of his sister are unknown.

12 3. The applicant attended school from 1990 to 2000 at the Baptist Group of Schools, obtaining his primary and secondary school certificates.

13 4. Between January 2006 and February 2007, the applicant worked with a charity helping the under-privileged, known as the African Children Care Democratic Party.

14 5. The applicant claims that he was accused of stealing money from this charity. He was arrested and detained in police custody for 2 months during which time he was beaten by the police. Later he came to understand that this was because the police knew that he was gay.

15 6. The applicant claims that he fled to Lagos to hide himself but was followed by the police. The applicant fears that he will be killed if he returns to Nigeria.

16 7. The applicant claims that he was brought to Ireland by an agent, to whom he paid a fee.

17 Following the completion of this questionnaire, an interview was held on 24 ^th June, 2008. During the interview the applicant was asked a large number of questions as is normal, and while it is not necessary for me to detail everything that was said, I will summarise the relevant information which was given during this interview.

18 The applicant stated that he was detained in the police station for 2 months. He was released following the assistance of his uncle, who is a lawyer. Following his release, the police came to his house on 2 ^nd June, 2008. There were 3 policemen and 3 fearful cultist men. They drove the applicant to a building site where the 3 policemen left. The applicant's boss was at the building site as well as six of his co-workers. His boss said that he knew the applicant had not stolen the money, that he used that to get the applicant out of his office because he knew that the applicant was gay. His boss advised him to leave the country immediately. The applicant stated in his interview that he is gay.

19 The applicant stated that he fled to Lagos to stay with a friend. He remained there for the whole month of June. On 27 ^th June, three policemen came to Lagos and showed the applicant's photograph to his neighbour as they...