F.A. & B.A. v Refugee Appeals Tribunal and Others

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Michael Peart
Judgment Date27 Jul 2007
Neutral Citation[2007] IEHC 290

[2007] IEHC 290

THE HIGH COURT

Record Number: No. 184 JR/2006
A (F) & A (B) v REFUGEE APPEALS TRIBUNAL & ORS

Between:

F. A., and B. A., a minor suing by her Mother and next friend F. A.
Appellants

And

The Refugee Appeals Tribunal, The Minister for Justice, Equality and Law Reform, The Attorney General and Ireland
Respondents

K ( G) & ORS v MIN FOR JUSTICE 2002 1 ILRM 401

EIRE CONTINENTAL TRADING CO LTD v CLONMEL FOODS 1955 IR 170

S (C) v MIN FOR JUSTICE 2005 1 IR 343 2004 IESC 44

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

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

IMMIGRATION

Asylum

Judicial review - Delay - Time limit - Application to extend time in which to bring judicial review - Test to be applied - Whether applicant had formed intent to seek judicial review within time limit - Whether applicant acted with reasonable diligence - Eire Continental Trading Co Ltd v Clonmel Foods Ltd [1955] IR 170; Re the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360; GK v Minister for Justice, Equality and Law Reform [2002] 2 IR 418; CS v Minister for Justice, Equality and Law Reform [2005] 1 IR 343; Kelly v Leitrim County Council [2005] IEHC 11, [2005] 2 IR 404 - Illegal Immigrants (Trafficking) Act 2000 (No 29) - Application for leave to extend time refused (2006/184JR - Peart J - 27/7/2007) [2007] IEHC 290

A(F) v Refugee Appeals Tribunal

The respondent made adverse credibility findings against the applicant from Nigeria who alleged that her unborn child would be subject to circumcision if returned to Nigeria. The respondent maintained that she could have relocated. The applicant sought to quash the decision of the respondent. A delay in seeking leave had resulted from her decision to change solicitors.

Held by Peart J. that there had been blameworthy delay on the part of the applicant. No basis existed for extending time for leave and the application would be refused.

Reporter: E.F

1

Mr Justice Michael Peartdelivered on the 27th day of July 2007:

2

The first named applicant is the mother of the second named applicant who was born here on the [ ] July 2005, some fifteen days after the arrival of the first named applicant into this country. On arrival she claimed asylum on the basis that if returned to Nigeria, her unborn child, who was by means of a scan already known to be a female child, would be subjected to circumcision by her husband's family.

3

Part of her history given to the RAC and to the Tribunal was that her first child, a female, had been subjected to circumcision by her husband's family and that this daughter had died very shortly thereafter despite having been brought to hospital after the circumcision had been carried out.

4

The Tribunal decided that there were reasons to doubt her credibility, and concluded that the fear that if the first named applicant refused to have her daughter circumcised she would be treated as an outcast was not 'persecution', and that it would in any event be possible for the first named applicant to relocate elsewhere in Nigeria where such practice is banned, and that she could avail of police protection.

5

The applicant seeks to impugn the process whereby credibility was assessed by the Tribunal Member and submits also that there was no basis upon which the Tribunal Member could have properly concluded that internal relocation and police protection were available options for the applicants.

6

This application is for leave to seek a number of reliefs, including one of Certiorari to quash the decision of the Refugee Appeals Tribunal which affirmed the recommendation of the Refugee Appeals Commissioner that the first named applicant should not be declared to be a refugee.

Application for extension of time:
7

The decision of the Tribunal Member is dated the 9th December 2005 and was communicated to the applicant by letter dated 29th December 2005. The deemed date of receipt of that communication is therefore the 1st January 2006, after which the fourteen day time period within which to commence proceedings by way of judicial review started to run against the applicant. It follows that these proceedings ought to have commenced not later than the 15th January 2006 if they were not to be the subject of an application for an extension of time. In fact the Notice of Motion by which this application was commenced was issued on the 17th February 2006, more than one month later.

8

The first matter arising therefore is whether the Court should exercise its discretion to extend the time for commencement of this application on the basis that good and sufficient reason has been shown as to why it was not commenced within the period of fourteen days prescribed by the Oireachtas for doing so.

9

The first named applicant states in her grounding affidavit that the decision of the Tribunal was notified to her by letter dated the 29th December 2005, and then that by letter dated 30th January 2006 she was informed that the Minister proposed to make a deportation order. It would seem to be the case that she then immediately contacted her then solicitor for advice, since he wrote a letter to the Refugee Legal Service dated the 31st January 2006 telling them that he had advised the first named applicant to contact that service "with regard to you preparing a humanitarian appeal on her behalf" and her file was enclosed with that letter. By this time of course the fourteen day period for commencing proceedings for judicial review had already passed some two weeks previously. There is no suggestion in that letter that such proceedings were even being contemplated.

10

The next averment by the first named applicant is that in paragraph 15 of her said affidavit in which she states:

"I was very concerned about what would happen to me and my daughter and spoke with friends who are also asylum seekers. I was told to contact solicitor Seán Mulvihill. I made an appointment at his offices on 6th February 2006 and signed an authority enabling him to procure my file....".

11

That written and signed authority is one which authorises that solicitor "to act as my solicitors and pick up all files regarding my humanitarian leave to remain application" (my emphasis).

12

She goes on to state that Mr Mulvihill received her file on the 8th February 2006, and that advice from Counsel was sought. It appears then that at a consultation with counsel she was upset when she understood what the Tribunal Member had found regarding her asylum claim. She avers then at paragraph 20 of her affidavit that as soon as Counsel's opinion was received, instructions were given to initiate these proceedings immediately, and that as soon as she was informed of the meaning of the Tribunal Member's findings she wished to challenge them in whatever manner she could. It is of some relevance to indicate that the applicant's application for asylum states that her language is English, and her profession is given as "business lady". Her questionnaire also indicates that she speaks English as well as her native language of Igbo, and her interview on the 19th August 2005 was conducted through English. I mention these matters since the letter dated 29th December 2005 notifying her of the Tribunal's decision refers to the reasons for that decision being those contained in an appendix to the letter, and that a copy of the decision itself has been sent to her then solicitor.

13

There is no further affidavit filed by the applicant or on her behalf.

14

Anthony Moore BL on behalf of the respondents submits that no good and sufficient reason has been shown by the applicant for the passage of time from the date on which she received the notification of the decision, namely 1st January 2006, and the expiry of the fourteen day period thereafter for commencing the present proceedings. He correctly, in my view, submits that the explanation given relates only to a period after the expiry of that time, namely after she received the further letter dated 30th January 2006 informing her of the proposal to deport her. Only then did she take any step whatsoever to address what was happening, and even then it was a further seventeen days before she commenced these proceedings.

15

Mr Moore has referred to the judgment of Finnegan J. in GK v. Minister for Justice, Equality and Law Reform [2001] 1 ILRM 401 in which he set out a number of factors which ought to be considered when deciding whether or not to exercise a discretion to extend time. These were the period of the delay, the reason for the delay, the prima facie strength of the applicant's case, and any other personal circumstances affecting the applicant. Although he was considering an extension of time under planning legislation, Clarke J. in Kelly v. Leitrim County Council, unreported, High Court, 27th January 2005, set forth a number of matters which he felt might be considered in applications for an...

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