Cili v Refugee Appeals Tribunal & Minister for Justice
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C. SMYTH |
| Judgment Date | 02 October 2002 |
| Neutral Citation | [2002] IEHC 140 |
| Docket Number | Record No. 28JR/2002 |
| Court | High Court |
| Date | 02 October 2002 |
[2002] IEHC 140
THE HIGH COURT
Citations:
REFUGEE ACT 1996 S13(3)(B)
REFUGEE ACT 1996 S11(2)
REFUGEE ACT 1996 S13(1)
TEN V THE MINISTER UNREP 31/10/2001
ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360
ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S5
ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999 S10
MCGONAGLE V MCGONAGLE 1951 IR 123 1951 IR JUR REP 17
ILLEGAL IMMIGRANTS ACT 1999 S3
P & L & B V MIN FOR JUSTICE 2002 1 ILRM 38
FAHIK & ORS V MIN FOR JUSTICE UNREP O'HANLON 05.03.92 1992/7/1998
REFUGEE ACT 1996 S23
REFUGEE ACT 1996 (APPEALS) REGULATIONS 2000 SI 342/2000 REG 3
REFUGEE ACT 1996 (APPEALS) REGULATIONS 2000 SI 342/2000 PART 2
REFUGEE ACT 1996 (APPEALS) REGULATIONS 2000 SI 342/2000 REG 9
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S4(1)
LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S4(1)(2)
WALSH, STATE V AN BORD PLEANALA 1981 ILRM 535
ELM DEVELOPMENTS, STATE V BORD PLEANALA 1981 ILRM 108
IMMIGRATION ACT 1999 (DEPORTATION) REGULATIONS 1999 SI 319/1999
R V HOME SECRETARY, EX-PARTE SALEEM 2001 1 WLR 443
REFUGEE ACT 1996 (APPEALS) REGULATIONS 2000 SI 342/2000
IMMIGRATION ACT 1971 (UK)
ASYLUM APPEALS (PROCEDURE) RULES 1996 (UK)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT S10
Synopsis:
IMMIGRATION
Asylum
Judicial review - Time limits - Whether time limit constitutional - Delay - Notice of appeal lodged five months outside time limit - Whether collateral or misericordiam scheme for allowing appeals outside time limit exists - Refugee Act 1996, section 13 (3) (b) - Refugee Act 1996 (Appeals) Regulations 2000 SI 342/2000 (2002/28JR - Smyth J - 2/10/02)
Cili v Minister for Justice, Equality and Law Reform
Facts: the applicant’s notice of appeal was submitted five months outside the time limit set out in section 13 (3) (b) of the Refugee Act 1996. The applicant applied for leave to judicially review the decision of the first respondent that the notice of appeal submitted to it was out of time on the grounds, inter alia, that the decision was erroneous in law and arrived at in breach of fair procedures and that the first respondent failed to properly exercise its discretion to admit the appeal notwithstanding that it may have been late. The applicant contended, inter alia, that the respondents would not be prejudiced by extending the time, that the eighteen month period between date of arrival and the determination of the Commissioner gave rise to a legitimate expectation of a time scale that could be anticipated for the appeal procedure and, that, even if the statutory scheme was applicable, the applicant’s case fell within the collateral and misericordiam scheme operated by the Tribunal.
Held by Smyth J in refusing leave that the role of an applicant for asylum is not a passive role and the rule that the “Tribunal shall, in arranging its business, have regard to the desirability of disposing of appeals with due expidition consistent with fairness and natural justice” as framed in the Refugee Act 1996 (Appeals) Regulations 2000 is not unreasonable, particularly when there is a safeguard in section 10 of the Illegal Immigrants (Trafficking) Act 2000 in the case of a situation where someone is served with notice of a particular decision but does not receive it. No reasonable excuse or explanation had been given by the applicant for the delay. To confer the Tribunal with jurisdiciton to operate a collateral and misericordiam scheme would be to interfere with the Ministerial jurisdiciton to do so by way of regulations and he had not done so.
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON WEDNESDAY, THE 2ND DAY OF OCTOBER 2002
I hereby certify the following to be a true and accurate transcript of my shorthand notes in the above-named judgment.
APPEARANCES
For the Applicant:
MR. POWER
For the Respondent:
MS. MOORHEAD BL
| MR. JUSTICE SMYTH: | The reliefs sought in this application are as |
(i) An Order of Certiorari by way of application for Judicial Review quashing the decision of the first-named Respondent that the Notice of Appeal submitted to it by the Applicant was out of time.
(ii) A Declaration that the Decision of the first-named Respondent deeming the Applicant's appeal out of time is ultra vires, void and of no force or effect.
(iii) A Declaration that the first-named Respondent failed to exercise its discretion to admit that appeal.
(iv) A Declaration that Section 13(3) (b) of the Refugee Act 1996is unconstitutional.
(v) An Order of Mandamus admitting the Applicant's appeal to the first-named Respondent.
(vi) An injunction restraining the second-named Respondent from deporting the Applicant.
The grounds upon which such reliefs are sought are as follows:-
(i) The first-named Respondent erred in law in deeming the Applicant's appeal from a refusal of refugee status to be outside the time set down for same in Section 13 (3) (b) of the Refugee Act 1996.
(ii) The first-named Respondent's decision was arrived at in breach of fair procedures and natural and constitutional justice in all the circumstances.
(iii) In breach of natural or constitutional justice, the first-named Respondent failed to properly exercise its discretion to admit the Applicant's appeal notwithstanding that it may have been late, which is denied.
(iv) If, which is denied, the first-named Respondent has no discretion as aforesaid, Section 13 (3) (b) is unconstitutional for failing to allow the Applicant an opportunity to protect and vindicate his fundamental rights, and for failing to afford the Applicant access to justice.
(v) The Applicant is at risk of deportation unless the second-named Respondent is restrained from so ordering.
The factual background to the proceedings is not in dispute. The Applicant, whose stated date of birth is 28th July 1975, is a Kosovar of Muslim religion who was, at the time of his arrival in this State on 4th November 1999, a person who spoke Albanian. He had the assistance of an interpreter when interviewed on 3rd May 2001, in the course of the consideration of his asylum application by the Refugee Applications Commissioner (hereinafter referred to as “the Commissioner”). He had been able to do or complete some of the Questionnaire, dated 9th November 1999, on his own, but he received some assistance in understanding some questions. He had left school 1989 and had different jobs over the decade before arriving in Ireland — the most significant being that of a shepherd for his grandfather. He did suffer from some ill health during those years and in particular had problems with his spine upon which he consulted a doctor.
The history of his departure from his country of origin is that subsequent to an incident in his home in February 1998, in which he was stabbed by a bayonet by Serbian soldiers, be left Kosova in February 1999. He stated he was effectively forced to do so because he did not join the KLA. He was in favour of peace and opposed to war. He went to Macedonia to "stay with some people" who were Albanian Macedonians. He stayed in Macedonia for four of five months. It would appear that for some two months of the period February-October 1999 the Applicant was in hospital. He ultimately paid 4,000DM to an agent and told the agent he was sick.
Reports were prepared by Mr. Neal D. Fleming, an Authorised Officer of the Commissioner, on 14th May 2001, under Section 11 (2) of the Refugee Act 1996(as amended) (hereinafter referred to as “the Act of 1996”), and on 21st May 2001 under Section 13 (1) of the Act of 1996. The first of these reports is in the nature of a fact-finding report and the latter is a report of analysis and evaluation upon which is based a recommendation. The nature and extent and differences of function exercised (by Mr. Fleming in this instance) in these circumstances is the subject of an unreported decision of the High Court in Ten and Ors -v- The Minister for Justice, Equality and Law Reform(31st October 2001).
The Commissioner, by letter, informed the Applicant that it had been concluded by her that the application was not such as to entitle him to a declaration as a refugee. The letter enclosed not only the documents prepared under Section 11 ( 2) and 13 (1), but also the recommendation dated 22nd May 2001, by Mr. John Behan, under Section 17 of the Act of 1996. There is exhibited in the Applicant's own affidavit, in Exhibit “B”, two letters in identical terms, but while each is signed by Mr. John Behan, Higher Executive Officer, one is dated 14th June 2001 and the other records "Re-Issued - 29.06.01, First Issued 14/06/2001". It is clear from paragraph (4) of the Applicant's affidavit that he received both letters.
The Applicant's explanation of what next happened is best recorded by what is deposed in paragraph 5 of his affidavit:-
"5. I instructed my solicitors by handing them the papers in the matter on the 5th July 2001, and requested them to appeal the matter on my behalf. I believed that this was all that was necessary from me at that stage and that I did not personally need to take further steps at that stage. I say that my solicitors have informed me that they made efforts to contact me by telephone and letter, but that the said efforts were fruitless. I believe that on my behalf my solicitors faxed a statement of intention to appeal to the first-named Respondent on July 6th 2001."
The solicitor did fax a letter not to the Refugee Appeals Tribunal (hereinafter referred to as “the Tribunal”), but to the Commissioner, dated 6th July 2001, which is in...
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