F (A) v Min for Justice & Refugee Applications Commissioner

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Herbert
• Judgment Date: 08 May 2008
• Neutral Citation: [2008] IEHC 138
• Docket Number: No 1521 J.R./2006
• Date: 08 May 2008

F (A) v Min for Justice & Refugee Applications Commissioner

JUDICIAL REVIEW

BETWEEN

A. F.

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

[2008] IEHC 138

No 1521 J.R./2006

THE HIGH COURT

IMMIGRATION

Asylum

Judicial review - Alternative remedy - First instance decision - Fair procedures - Delay of six months - Appeal instituted - Applicant associated with political party in Iran - Applicant asserting lack of legal advice and medical problems as cause of delay - First safe country - Certain matters not put to applicant - Whether appropriate to extend time - Whether substantial grounds - Whether breach of fair procedures - Whether appeal adequate remedy - Whether applicant entitled to primary decision in accordance with fair procedures - Whether applicant estopped having invoked appeal - GK v Minister for Justice [2002] 1 ILRM 81, Re the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 and Stefan v Minister for Justice [2001] 4 IR 203 applied; Nguedjdo v Refugee Applications Commissioner (Unrep, White J, 23/7/2003), Idiakheua v Minister for Justice [2005] IEHC 150 (Unrep, Clarke J, 10/5/2005), Kouaype v Minister for Justice [2005] IEHC 380 (Unrep, Clarke J, 9/11/2005), Kayode v Refugee Applications Commissioner [2005] IEHC 172 (Unrep, O'Leary J, 25/4/2005), Akpomudjere v Minister for Justice [2007] IEHC 169 (Unrep, Feeney J, 1/2/2007), McGoldrick v An Bord Pleanala [1997] 1 IR 497 and Chukwuemeka v Minister for Justice (Unrep, Birmingham J, 7/10/2007) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29) s 5 - Refugee Act 1996 (No 17), ss 2, 11, 13 & 16 - Leave granted (2006/1521JR - Herbert J - 08/05/2008) [2008] IEHC 138

F(A) v Minister for Justice, Equality and Law Reform

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(1)

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

K (G) & ORS v MIN FOR JUSTICE & ORS 2002 1 ILRM 81 2001/13/3546

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

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

REFUGEE ACT 1996 S2

REFUGEE ACT 1996 S11B(b)

NGUEDJDO v REFUGEE APPLICATIONS COMMISSIONER UNREP WHITE J 23.7.2003 (EX-TEMPORE)

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT CLARKE 10.5.2005 2005 IEHC 150 2005/31/6357

UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS PARAS 207 - 212

KOUAYPE v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (EAMES) UNREP HIGH COURT CLARKE 9.11.2005 2005/35/7364 2005 IEHC 380

STEFAN v MIN FOR JUSTICE & REFUGEE APPEALS AUTHORITY 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

KAYODE v REFUGEE APPLICATIONS COMMISSIONER UNREP O'LEARY 13.11.2001 2005/33/6894 2005 IEHC 172

AKPOMUDJERE v MIN JUSTICE UNREP FEENEY 1.2.2007 EX TEMPORE

CHUKWUEMEKA v MIN JUSTICE UNREP BIRMINGHAM 7.10.2007 EX TEMPORE

REFUGEE ACT 1996 S11A(3)

REFUGEE ACT 1996 S16(16A)

MCGOLDRICK v BORD PLEANALA 1997 1 IR 497

Mr. Justice Herbert

1 The first issue which requires to be addressed in this matter is whether the court should extend the time to enable this application to be made.

2 The applicant completed the ASY 1 form, seeking asylum in this State, on the 18^th October, 2005. He completed the Application for Refugee Status Questionnaire on the 27^th October, 2005. The interview conducted pursuant to the provisions of s. 11 of the Refugee Act 1996, (as amended) took place on the 11^th January, 2006, and on the 10^th February, 2006, due to the intervening indisposition of the applicant. The Report made pursuant to the provisions of s. 13(1) of the Refugee Act 1996, (as amended), is dated the 28^th February, 2006, even though it refers to a letter which was not received by the Refugee Legal Service, which then represented the applicant, until the 6^th March, 2006, and was not received by the Office of the Refugee Applications Commissioner until the 7^th March, 2006. However, the Recommendation itself, which completes the document, is dated the 29^th March, 2006.

3 By letter dated 9^th June, 2006, the applicant was advised of the result and informed that if he wished to appeal to the Refugee Appeals Tribunal he must do so within fifteen working days from the sending of the letter. The applicant accepts that he received this letter on the 12^th June, 2006. The notice of motion seeking leave of this Court to apply for judicial review was filed in the Central Office of the High Court on the 20^th December, 2006, six months and eight days outside the period of fourteen days, commencing on the date of notification of the decision of the Refugee Applications Commissioner, limited by s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000. It is further provided by that subsection that this Court may only extend the time if it is satisfied that there is good and sufficient reason for so doing.

4 In"G.K." v The Minister for Justice, Equality and Law Reform [2002] 1 I.L.R.M. 81, Finnegan J. set out a number of matters to which this Court should have regard in deciding whether or not to exercise its discretion to extend the time. These matters are: the extent of the delay and the blameworthiness of the applicant, and additionally or alternatively, her lawyers, the reasons explaining and excusing the delay set out on affidavit, the strength of the application, the complexity of the legislation involved, whether language issues arise, whether the rights of any third party are affected, the evident legislative policy and any other relevant considerations.

5 The legislative policy is clearly indicated by the very brief time allowed by the subsection to an applicant to seek leave of this Court to apply for judicial review. In this case there has undoubtedly been very great delay on the part of the applicant. In the Questionnaire, the applicant stated that his first language was Kurdish, but he could also speak Farsi and a " bit of English". He stated that he was in his second year at University where he was studying mathematics, when he left Iran. I find that there is nothing in the papers submitted to this Court which would indicate that language was a problem in this case. I am also satisfied that no complex legislation was involved in this matter, nor were the rights of any third party affected.

6 Having read the s. 13(1) Report and Recommendation, which the applicant now seeks leave to impugn, the Statement Required to Ground Application for Judicial Review dated 19^th December, 2006, the Verifying Affidavit of the applicant sworn on the 19^th December, 2006, the written submission on behalf of the applicant filed on the 25^th January, 2008, and that of the respondents filed on the 1^st February, 2008, I reached a prima facie conclusion that some at least of the grounds advanced by the applicant in the Statement of Grounds appeared reasonable, arguable and weighty.

7 In a supplemental affidavit sworn by the applicant on the 30^th January, 2008, the applicant advanced the following reasons for the delay in bringing this application:-

8 2 "3. I was informed of a negative recommendation of the Refugee Applications Commissioner dated the 29^th March, 2006, by letter dated 9^th June, 2006, received by me on or about the 12^th June, 2006.

9 4. In May, 2006, I attended the Refugee Legal Service and instructed them to formulate an appeal to the Refugee Appeals Tribunal in relation to my being refused a declaration of refugee status by the Refugee Applications Commissioner. This appeal was prepared and submitted. I was not advised by the Refugee Legal Service of the possibility of challenging the decision of the Refugee Applications Commissioner by way of judicial review and understood that the only option available to me was to proceed by way of an appeal. A hearing was arranged for me before the Refugee Appeals Tribunal and was scheduled to take place on the 15^th August, 2006, however, due to my mental health at this time, I was unable to attend this hearing. In this regard I beg to refer to a letter dated the 10^th August, 2006, from Stephen D. Collins of the Refugee Legal Service to the Refugee Appeals Tribunal and to an attendance note from Mary Bunn of the Refugee Legal Service in relation to my situation at that time, upon which pinned together and marked with the letters and number "AF 1" I have signed my name prior to the swearing hereof.

10 5. In early September, 2006, I made an appointment to see my current solicitor, Brian Burns. After meeting with Mr. Burns, he requested a copy of my file from the Refugee Legal Service in order to assist me in relation to my application. There was some delay in delivering my file to my current solicitor and in fact my file was only received by him on or about the 10^th October, 2006, after he wrote on two occasions seeking it. I was psychologically very unwell during this period and I failed to attend at several appointments with Brian Burns during October, 2006. I attribute this failure to attend to my general fear of persons in authority and an unwillingness on my part to face up to my position. In mid-December, 2006, I contacted Brian Burns again and he arranged for a consultation with him and counsel which took place in the Four Courts on Thursday 14^th December, 2006. At this time the option of judicial review and how it would affect my case was fully explained to me and I formed the opinion that this remedy would be an advantageous one for me given the failure by the Commissioner to properly consider my case and I instructed Brian Burns to prepare the necessary papers.

11 6. As a consequence of the torture which I endured whilst imprisoned in Iran I have been under stress and psychological disorder. This has persisted throughout the asylum process and has regularly rendered incapable of thinking rationally, incapable of...