A(J) v Minister for Justice
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE T.C.SMYTH |
| Judgment Date | 19 March 2002 |
| Neutral Citation | 2002 WJSC-HC 1 |
| Date | 19 March 2002 |
| Court | High Court |
2002 WJSC-HC 1
THE HIGH COURT
DUBLIN
BETWEEN
Citations:
REFUGEE ACT 1996 S11(2)
REFUGEE ACT 1996 S13(1)
REFUGEE ACT 1996 S2
REFUGEE ACT 1996 S13(3)(b)
IMMIGRATION ACT 1999 S3(6)
REFUGEE ACT 1996 S13(3)(6)
REFUGEE ACT 1996 S16(3)
REFUGEE ACT 1996 (APPEALS) REGS 2000 SI 342/2000
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)(h)(i)
REFUGEE ACT 1996 S16
REFUGEE ACT 1996 S13
IRISH REFINING PLC V CMRS OF VALUATION 1990 1 IR 568
ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360
DORAN V O'HARA 1975 NI 125
DAVIES V DAVIES UNREP CA 19.6.1972
MEHTA V SECRETARY OF STATE FOR THE HOME DEPARTMENT 1975 2 AER 1084
IMMIGRATION (PROCEDURE) RULES 1972 (UK)
R V IMMIGRATION APPEAL TRIBUNAL EX-PARTE JEYEANTHAN & RAVICHANDRAN V SECRETARY OF STATE FOR THE HOME DEPARTMENT 1993 3 AER 231
IMMIGRATION (PROCEDURE) RULES 1984 (UK)
MONAGHAN UDC V ALF-A-BET PROMOTIONS LTD 1980 ILRM 64
HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED 1988 448
K(G) & ORS V MIN FOR JUSTICE 2001 4 IR 259
Synopsis:
IMMIGRATION
Judicial review
Refugee and asylum - Delay - Time limits - Statutory interpretation - Whether assessment of application for refugee status carried out correctly - Whether time limits mandatory or directory - Refugee Act, 1996 (2001/471JR - Smyth J - 19/3/2001)
A v Minister for Justice, Equality and Law Reform
Facts: The applicant had made an application for asylum on the grounds of having a well-founded fear of persecution in his native country. The application was refused. The applicant was informed that he could appeal the decision to the Refugee Appeals Tribunal. An appeal was received but was outside the relevant time limit under the 1996 Act. The applicant sought to judicially review the decision particularly in regard to the time limits applicable.
Held by Mr. Justice Smyth in dismissing the application. The statutory time limits were mandatory, not directory and must be complied with. There was no explanation as to why the judicial review proceedings were not issued within time. It was clear from the documentation that the applicant's fear was that of having to face prosecution and not persecution (if returned to his country of origin).
MR. JUSTICE T.C.SMYTHON TUESDAY, 19TH MARCH 2002
I hereby certify the following to be a true an accurate transcript of my shorthand notes of the evidence in the above-named action.
APPEARANCES
FOR THE APPLICANT
Ms. Barron BL
Instructed by:
Chief State Solicitors
Harcourt Streat
FOR THE RESPONDENT
Mr. Lynne BL
COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone StenographyServices.
MR. JUSTICE SMYTH: The Applicant is a Ghanaian national whose date of birth is 1st August 1982. He arrived in the State with only a fair knowledge of English a month after his seventeenth birthday on 1st September 1999 when he claimed asylum. He gave sufficiency of particulars for the completion of any ASY-1 form, and was given a number of standard documents for which he signed. On the day of his arrival - or more probably on the following day he completed the standard from at Questionnaire with the assistance of a Nigerian man. It is clear from his reply to Question 84 that he was seeking asylum because he was on the run from the police in Ghana. He had started a fire it seems maybe accidentally by dropping an unextinguished cigarette into or near a petrol tank. There was serious material damage and a person died in the fire; he ran away and stated that he was afraid to have go back toGhana.
On 19th February 2001, the Applicant was invited to attend for interview, which took place on 7th March 2001. Reports pursuant to Section 11(2) and 13(1) of the Refugee Act 1996(as amended) were prepared on 19th March 2001. The recommendation made was thatthe Applicant had not demonstrated a well founded fear of persecution for a convention reason (i.e. he fled Ghana to avoid possible prosecution for the incident of burning down the petroleum installation). The final recommendation, signed by one Theresa Molyneux on 30th March 2001 who stated that she was satisfied that the Applicant did not establish a case such as to qualify him for refugee status as defined in Section 2 of the Refugee Act, 1996(as amended) and recommended that he should not be declared arefugee.
By a letter dated 23rd April 2001 the decision by way of recommendation of the Refugee Applications Commissioner was sent to the Applicant. The letter makes clear that if minded to appeal, the Applicant had within 15 working days of that date of the letter to appeal. If no appeal was lodged within 15 days, the matter would be sent to the Minister, (with the adverse recommendation) and that the Minister would then make a decision on the application having regard to the recommendation.
The Applicant avers in an affidavit sworn by him on 25th February 2002, that :
"I received this letter but was unable to read it as I do not read or write. I gave it to a friend P J .who read it and attempted to explain it to me. He, P J also said he would take it to a firm of solicitor who would assist me. He took the letter to AC Pendred & Company either thefollowing day or the day immediately, after that. He then informed me that I must attend AC Pendred & Company with all documents in my possession in relation to my asylum application. The following day I attended AC Pendred & Company with the said documents and left the matter in the hands of AC Pendred & Company to pursue in my bestinterests."
It is clear from a letter exhibited as AP5 in Mr. Pendred's affidavit (sworn on 9th July 2001) dated 22nd May 2001 that the Applicant was seen in his office on 4th May 2001. A form of Notice of Appeal, supplemented by an accompanying narrative was it would appear signed by the Applicant on 15/ 5/2001, this is not a criminal case nor is there any handwriting expert evidence, but to the untrained eye the sophisticated initialling of the Applicant's signing does not resemble in the least his signature on the Affidavit of 25th February 2002 or at the end of the first interview notes at page 10, which might more readily reflect that of a Farmer/Fisherman the description of his profession in the ASY-1 form and of a man who swore in paragraph 3 of his own affidavit that "I cannot read or write". There is no references to the Applicant (in his affidavit, other than as already quoted) being at his solicitors office to sign any document or document(s). I refer to his anomalous situation but draw no inference adverse to the applicant therefrom. It is recorded in the time sequence as the next matter is the signature on 16th May 2001 ofthe appeal documentation which is it is common case was received by the tribunal on 17th May 2001.
The response of the Tribunal on receipt of the appeal was to draw the Solicitors attention to the fact that it was received outside the permitted time limit in Section 13(3) (b) of the Refugee Act 1996. The letter of 21st May conveying this information conclude thus:
"The Refugee Appeals Tribunal has notified the Refugee Applications Commissioner who in turn, will make arrangements to notify the Minister for Justice, Equality and Law Reform of the recommendation that your client should be refused a declaration as a refugee. Your client will be informed of the position in this regard in duecourse."
The response of the Solicitor was to request the Tribunal to reconsider its decision and went on to state:
"In the event, that you fail to accept Mr. A. appeal, please be advised that we will pursue a judicial review of this case in the High Court and use this letter to fix you with the costs or damages thereof."
This is the second reference in the Solicitors correspondence with the Tribunal to proceedings (the first being in the concluding paragraph with the narrative letter of appeal).
By letter dated 25th May 2001 the Tribunal informed the Applicant's Solicitor that they had sought, theadvice of the Attorney General's office. By letter dated 15th June 2001 the Tribunal confirmed the view already expressed by the Tribunal that the appeal was out of time.
By letter dated 22nd June 2001 addressed to the Applicant the first-named Respondent (the Minister) conveyed his decision to refuse to give the Applicant a declaration as a refugee, and left it open to the Applicant (within 15 working days 22nd June 2001) to make application of Section 3(6) of the Immigration Act 1999by way of representation for leave to remain on humanitariangrounds.
Notwithstanding the extensive reliefs claimed in the Statement of Grounds, the case argued in court gave rise to an issue time under twoheadings:
(a) The Refugee Act 1996(as amended) Section 13 (3) (6), Section 16 (3) and the Regulations (Statutory Instrument No. 342 of 2000); and
(b) The Illegal Immigrants (Trafficking) Act 2000Section 5 (2), and Section 5 (1) (h), (i).
Section 16 of the Refugee Act, 1996(as amended) which deals with appeals to the Refugee Appeals Tribunal provides in subsection (3) as follows:
"(3) An appeal under this section shall be brought by notice in writing within the period specified within section 12( 5) or 13(2) (b), as may be appropriate and the notice shallspecify the grounds of appeal and, in the case of a recommendation by the Commissioner under section 13(3) (b), shall indicate whether the Applicant wishes the Tribunal to hold an oral hearing for the purposes of his...
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