I. & Anor -v- Refugee Appeals Tribunal & Ors, [2009] IEHC 8 (2009)

Docket Number:2008 1130 JR
Party Name:I. & Anor, Refugee Appeals Tribunal & Ors
Judge:Hedigan J.
 
FREE EXCERPT

THE HIGH COURT2008 1130 JR

BETWEEN

S. I. AND D. I. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND, S.I.)APPLICANTSAND

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

THE ATTORNEY GENERAL AND IRELANDRESPONDENTSAND

HUMAN RIGHTS COMMISSIONNOTICE PARTYJUDGMENT OF MR. JUSTICE HEDIGAN, delivered on the 16th day of January, 2009.

  1. The applicants are seeking leave to apply for judicial review of:-

    1. The decisions of the Refugee Appeals Tribunal (RAT) to affirm the earlier recommendations of the Refugee Applications Commissioner (ORAC) that the applicants should not be granted declarations of refugee status;

    2. The decisions of the Minister for Justice, Equality and Law Reform ("the Minister") to refuse their applications for subsidiary protection; and

    3. The decisions of the Minister to make a deportation orders in respect of them.

    Factual Background

  2. The first named applicant was born in Nigeria in 1986. According to her account of events, she married in 2001 and suffered a miscarriage in 2002 as a result of pressure to undergo genital circumcision. She refused to undergo the procedure and claims to have been beaten up as a result. She travelled to the UK in 2003 when she fell pregnant again but was immediately deported. She returned to live with her husband in Lagos but miscarried again. Three years later, when she fell pregnant for a third time, her husband paid an agent to arrange her travel to Ireland; she was seven months pregnant when she arrived in Ireland in June, 2006. She gave birth to a daughter, the second named applicant, on 14th September, 2006; the child is a national of Nigeria.

    Procedural Background

  3. The first named applicant applied for asylum in July, 2006. She opted to make a separate asylum application on her daughter's behalf, after her birth. In her own ORAC questionnaire, she claimed to fear that she would be forcibly subjected to genital circumcision if returned to Nigeria; when filling out her daughter's ORAC questionnaire, she asserted the same fear on behalf of her daughter. Separate ORAC interviews were conducted in respect of mother and daughter. The first named applicant was notified by letter dated 3rd November, 2006 that a negative recommendation had issued from ORAC; her daughter was notified likewise one week later. Each applicant appealed to the RAT. Oral hearings took place on 2nd July, 2007, at which each applicant was represented by counsel. The RAT decisions to affirm the ORAC recommendations were notified to the applicants by letters dated 28th August, 2007.

  4. Each applicant was notified that the Minister was proposing to make a deportation order in respect of her, and that the usual options were available. Representations seeking leave to remain and an application for subsidiary protection were made on behalf of each applicant; the RLS submitted representations on behalf of the second named applicant on 28th January, 2008 while her mother's then-legal representatives submitted theirs on 8th February, 2008. Country of origin information (COI) and various references were attached to each of the applications. Each applicant was notified by letter dated 26th June, 2006 that her application for subsidiary protection had been refused. Further representations were made on behalf of the first named applicant by a new firm of solicitors on 8th July, 2008. Each applicant was notified by letter dated 24th September, 2008 that a deportation order had issued in respect of her.

    Extension of Time - The RAT Decisions

  5. The within proceedings were issued on 13th October, 2008. Section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 sets a 14-day time limit, commencing on the date of notification, for the bringing of judicial review proceedings in respect inter alia of RAT decisions. The applicants are outside of that time limit by roughly 13 months with respect to the RAT decisions that were notified to them on 28th August, 2007.

  6. With regard to this delay, the first named applicant states in her grounding affidavit that she was distressed when the RAT dismissed the appeals and discussed matters with the RLS, but was told that nothing could be done. She says she was advised that she could go to a private solicitor, but that "the only income I have is a weekly payment of nineteen euro for me and nine euro for my child." She also says that she contacted a new solicitor once notified about the deportation orders, and received an immediate appointment. She says that upon receipt of counsel's opinion, instructions were given to her new solicitor to institute the within proceedings. She also says she has difficulty in understanding legal matters and is of limited means.

  7. The respondents submit that it would be contrary to legal certainty to grant an extension of time in circumstances where the Minister relied on the RAT decisions in good faith a year after they were notified to the applicants. They have also applied, without prejudice to the foregoing, for the proceedings against the RAT to be struck out on the basis that the RAT decisions have been subsumed into those of the Minister.

  8. As this Court has indicated on several occasions (see e.g. K.A. & Anor v The Refugee Applications Commissioner [2008] IEHC 314; O.S.T. v The Minister for Justice, Equality and Law Reform (unreported, Hedigan J., High Court, 12th December, 2008); E.O. & Ors v The Minister for Justice, Equality and Law Reform (unreported, Hedigan J., High Court, 18th December, 2008)), the Court will be satisfied that there is good and sufficient reason for extending time only where reasonable, clear and credible reasons of some weight are proffered in explanation of the delay. This is because the 14-day period that is set out in the Act of 2000 must be regarded with the utmost seriousness.

  9. The applicants have delayed by more than 26 times the length of time allowed by the Act of 2000. It is my view that in cases involving such inordinate periods of delay, the reasons proffered in explanation of the delay must be quite exceptional indeed, and that no such reasons have been advanced in the present case: the matters set out in the grounding affidavit are insufficient to explain the delay, and could not be considered in any way exceptional. Accordingly, I am not satisfied that there is good and sufficient reason to...

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