H (Q) & H (G) (A Minor) [Pakistan] v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Eagar |
| Judgment Date | 30 July 2015 |
| Neutral Citation | [2015] IEHC 505 |
| Court | High Court |
| Date | 30 July 2015 |
[2015] IEHC 505
THE HIGH COURT
BETWEEN
AND
Asylum, Immigration & Nationality – S. 5 (2) of the Illegal Immigrants (Trafficking) Act 2000 – Rule 21 of the amended Rules of the Superior Courts (Judicial Review) 2011 – Extension of time in judicial review – Good and sufficient reason – Change of solicitor
Facts: In the present proceedings wherein the applicant was seeking orders of certiorari for quashing the decisions of the first named respondent in relation to the applicant and her minor child, the applicant sought orders for an extension of time with respect to both applications.
Mr. Justice Eagar granted an order for extension of time in both applications. The Court observed that the r. 21 of the amended Rules of the Superior Courts (Judicial Review) 2011 provided for an extension of time period for an application beyond the prescribed time limit when there was a good and sufficient reason for doing so, and the circumstances were outside the control of the applicant or could not have been reasonably anticipated by the applicant. The Court found that the change of solicitor by the applicant and her difficulty in travelling from Cork to Dublin at the advanced stage of pregnancy were deemed to be sufficient reasons for allowing the extension of time provided as it was not prejudicial in any way to the respondents.
1. This is a joint judgment of a preliminary issue in the telescoped hearing of applications for orders of certiorariquashing the decisions of the first named Respondent both dated the 20 th June 2012 and notified to the Applicants respectively on the 2 nd July 2012 and 13 th July 2012.
2. The grounds up which relief was sought in the statement of grounds in relation to Q.H.:
) The Tribunal erred in law and in fact that the Applicant had not suffered persecution in the past. In the alternative the said finding is irrational.
) The imposition of a requirement that one must have a high profile as an Ahmadi is irrational in the light of the country reports placed before the Tribunal.
) Without prejudice to the aforesaid the Tribunal erred in finding that the Applicant's lacks a "profile" as an Ahmadi in circumstances where the Applicant comes from a high profile Ahmadi family.
) The decision is internally inconsistent in that the Tribunal Member holds that the Applicant has never engaged in preaching of conversation while then acknowledging that the Applicant was "involved in religious education of Ahmadi children."
) The findings that the internal relocation available to the Applicant was made without regard to the evidence including country reports placed before the Tribunal.
) The Minister lacked the jurisdiction to make the decision to refuse the Applicant refugee status in circumstances where the Applicant was not afforded a lawful asylum process.
) The Respondents failed to have any or any reasonable regard to the grant of leave to remain to the husband of the Applicant.
) If necessary an order providing for an extension of time
3. In relation to G.H., the infant, the grounds upon which relief were sought were follows:-
) The Tribunal erred in law and in fact in finding that the there was no evidence that the infant Applicant would be at risk of persecution in Pakistan. In the alternative the said finding is irrational in the light of the law as directed towards Ahmadyya Muslims in Pakistan and country of origin information reports showing that the persecution of Ahmadyya Muslims is endemic in Pakistan.
) The Tribunal erred in law in placing a requirement that the Applicant should show she is "an exceptional" Ahmadi in circumstances where country reports placed before the Tribunal show that non "exceptional" Ahmadis are exposed to persecution in Pakistan.
) An order providing for an extension of time herein.
4. This judgment is dealing with the issue of an extension of time prior to making any further findings
5. The Applicants applied for an extension of time and the Respondent objects to same.
6. In her affidavit, which included country of origin reports, she was notified by letter received on or about the 2 nd July 2012 that the Tribunal affirmed the decision of the Commissioner.
7. She was subsequently notified that the Minister refused to grant her refugee status and proposed to make a deportation in respect of her. This letter was dated the 31 st July 2012. She was also invited to apply for subsidiary protection. By way of explaining the delay in bringing of the proceedings she says that on receipt of the decision of the Tribunal she instructed her then solicitor to challenge the decision. She says that he sought the advice of counsel in this regard but a challenge was not advised. She then sought the assistance of her present solicitor and was advised her file was not received by her present solicitor until the 20 th September 2012, primarily due to confusion as to where her file was located and even then there were documents of relevance missing form the file. She says that she also experienced difficulties in travelling to Dublin from Cork to provide instructions due to her being in the advanced stages of pregnancy. She advises and believes that her brief was immediately prepared for counsel and counsel's opinion was sought. She further advised that due to pre-existing work commitments in preparation for the new legal term, counsel was unable to provide an opinion until the 2 nd October 2012. On receipt of counsel's opinion, instructions to institute the within proceedings were given immediately and they were commenced on the 11 th October 2012. In relation to her daughter's case, the adult Applicant QH swore an affidavit saying that her daughter was born in Pakistan on the 28 th December 2005 into an Ahmadi family, that she had suffered persecution since birth on account of her Ahmadi status, her father had since been granted leave to remain in Ireland in circumstances where his representations were substantially directed to his faith and the treatment of the Ahmadis in Pakistan. Her daughter and herself arrived in Ireland on the 8 th October 2011. She attended for interview at the Commissioner in respect of her daughter's application and was notified that the Commissioner had refused her daughter, and a notice of appeal was submitted to the Refugee Appeals Tribunal. She was notified by letter on or about the 13 th July 2012 that the Tribunal affirmed the decision of the Commissioner. A copy of the decision of the Tribunal Member was enclosed. He was subsequently notified that the Minister received to grant her daughter refugee status and proposed the making of a deportation order and this letter was dated the 31 st July 2012. By way of explaining the delay in bringing the proceedings, she said that on receipt of the decision of the Tribunal she instructed her then solicitor to challenge the decision as in her own situation and in each case she asked for a further order of extension of time.
8. Section 5(2) of the Illegal Immigrants (Trafficking) Act 2000 provides as follows:-
2 "2) An application for leave to apply for judicial review under the Order in respect of any of the matters referred to in subsection (1) shall-
(a) be made within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made".
9. Ironically s. 5(4) indicates that The High Court shall give such priority as it reasonably can, having regard to all the circumstances, to the disposal of proceedings in that Court under this section. I propose to refer to that subsection in due course.
10. Section 5(1) states as follows:-
"A person shall not question the validity of-"
(i) A decision of the Refugee Appeals Tribunal under s. 16 as amended by s. 11(1)(k) of the Immigration Act 1999 of the Refugee Act 1996 otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts."
11. The Rules of the Superior Courts (Judicial Review) 2011 ( S.I. No. 691 of 2011) came into operation on the 1 st January 2012. Section 4 amends the Rules of the Superior Courts ( S.I. No. 15 of 1996) and provides that:-
"An application for an order of certiorari, mandamus, prohibition or quo warranto shall be made by way of an application for judicial review in accordance with the provisions of this Order."
And it provides that an application shall be made for leave by motion ex parte.
12. In hearings pursuant to s. 5 Illegal Immigrants (Trafficking) Act 2000 with a view to dealing with substantial delay issues in hearing of judicial review cases, the High Court has sought to truncate the time by having telescoped hearings of judicial review of Refugee Applications Commissioner decisions or Refugee Appeals Tribunal decisions in complying with s. 5(4) of the Act. The High Court are...
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