D.F.S. (Also Known as D.M.)

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 06 March 2017
• Neutral Citation: [2017] IEHC 127
• Court: High Court
• Docket Number: [2017 No. 16 J.R.]
• Date: 06 March 2017

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 (AS AMENDED)

BETWEEN

D.F. S. (ALSO KNOWN AS D. M.)

APPLICANT

AND

REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

[2017] IEHC 127

O'Regan J.

[2017 No. 16 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S. 5 of the illegal Immigrants (Trafficking) Act 2000 (as amended) – Extension of time

Facts: The applicant sought an order for extension of time for bringing the within application together with leave to apply by way of judicial review for quashing the recommendation of the respondent that the applicant should be declared a refugee. The applicant contended that the respondent did not disclose the information pertaining to biometric data to the applicant prior to the decision making and hence, breached fair procedures.

Ms. Justice O'Regan refused to grant time extension to the application, notwithstanding the fact that the applicant's case was arguable and amenable to judicial review. The Court held that before granting an extension of time, the Court must determine the extent of delay, the legal services availed by the applicant, the strength of potential claim and the reasons for the delay. The Court found that there had been considerable delay in filing the present judicial review application outside the prescribed limit and that applicant was not in receipt of any legal advice. The Court held that the applicant's solicitor had offered no cogent explanation for the delay from the time he was first contacted in the present case up to the filing of the present judicial review application. The Court, however, held that the relevant biometric data was still unavailable to the applicant and thus, the failure to grant an extension of time would not be fatal to the applicant. The Court further pointed out that since there was a full-fledged appeal in process against the decision of the respondent, the applicant would not be prejudiced adversely by the Court's refusal to grant the time extension.

JUDGMENT of Ms. Justice O'Regan delivered on the 6th day of March, 2017

1 By ex parte docket bearing the date 13th February, 2017 the applicant is seeking an order extending time within which to bring the within application together with leave to apply by way of judicial review to quash the recommendation of the respondent that the applicant should not be declared a refugee, which recommendation was notified to the applicant on the 26th July, 2016. A declaration that the recommendation was in breach of the applicant's Constitutional rights and fair procedure is also claimed together with an injunction and/or stay.

2 The essence of the complaint on the part of the applicant is to the effect that after the s. 11 interview with the applicant on the 27th February, 2016 the UNHCR by a letter of the 7th April, 2016 advised the respondent that biometric data was not held at the refugee camp in Malawi in relation to the applicant – it is complained that this response was not put to the applicant prior to the decision being made and therefore breached fair procedures. Since the impugned decision, by email of the 25th of October, 2016 the applicant has been advised by the UNHCR that they have biometric data although it does not appear that same was tendered to the applicant and consequentially the applicant has not tendered same to the Court.

3 A further complaint is that the respondent erroneously recorded that the UNHCR letter of the 7th April 2016 was a document submitted by the applicant as opposed to a document which was secured directly by the respondent. The applicant argues that the respondent relied upon the content of the UNHCR letter to support a finding that the applicant had not provided evidence to establish on the balance of probabilities that he is DFS.

4 The application for leave was ultimately heard on notice to the respondent.

5 The applicant initially arrived in Ireland on the 10th January, 2015 apparently to study and he subsequently secured permission on the passport that he tendered from the authorities on the 3rd March, 2015. The documents which the applicant used in arriving in Ireland were documents which were considered valid, in the applicant's passage through Germany to Ireland and also when he arrived in Ireland. The documents established that he was in fact DM. On the 29th July, 2015 the applicant applied for asylum status and he did so without the assistance of a solicitor notwithstanding that he was furnished with documentation from the respondent advising him of legal contacts. Prior to this he had contacted the UNHCR, and secured ORAC contact details, who queried if the applicant had a lawyer. The applicant appealed the decision of ORAC by appeal of 5th August, 2016. In this communication the applicant was again advised of contact detail of the Refugee Legal Services.

6 At para. 10 of his grounding affidavit on the 23rd January, 2017 he states that he sought legal advice for the first time on the 26th October, 2016. No attempt is made to explain why he did not seek legal advice before that date.

7 When the matter came before the Court on an ex parte basis, there was no affidavit from the applicant's solicitor and therefore no explanation as to the delay between the 26th October, 2016 and the 23rd January, 2017. However, following the direction to make the application on notice to the respondent the applicant's solicitor, Finbar Phelan, swore an affidavit on the 14th February, 2017 in which Mr. Phelan states that the applicant was referred to him by the Refugee Legal Services and he arranged a consultation for the 26th...