J.A. v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: MR JUSTICE HEDIGAN,
• Judgment Date: 18 December 2008
• Neutral Citation: [2008] IEHC 431
• Court: High Court
• Date: 18 December 2008

[2008] IEHC 431

THE HIGH COURT

[1136 JR/2008]

A (J) v Refugee Applications Commissioner v Min for Justice

BETWEEN

J.A.

APPLICANT

AND

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

RESPONDENTS

IMMIGRATION ACT 1999 S3(11)

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

A (F) & A (B) v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 27.7.2007 2007/1/188 2007 IEHC 290

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

KELLY v LEITRIM CO COUNCIL & BORD PLEANALA 2005 2 IR 404 2005/34/6980 2005 IEHC 11

BUGOVSKI & BUGOVSKA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP GILLIGAN 18.3.2005 2005/6/1153 2005 IEHC 78

RSC O.84 r21

O'CONNOR v PRIVATE RESIDENTIAL TENANCIES BOARD UNREP HEDIGAN 25.6.2008 2008 IEHC 205

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

AKUJOBI (A MINOR) v MIN FOR JUSTICE UNREP MACMENAMIN 12.1.2007 2007/3/555 2007 IEHC 19

U (F) (A MINOR) & ORS v MIN FOR JUSTICE & ORS UNREP HEDIGAN 11.12.2008 2008 IEHC 385

T (OS) v MIN FOR JUSTICE & ORS UNREP HEDIGAN 12.12.2008 2008 IEHC 384

IMMIGRATION

Asylum

Judicial review - Leave - Delay - Extension of time - Failure to move promptly within time period - Applicant asserting delay attributable to previous legal representation - Whether permissible to blame previous legal representatives without putting them on notice - Whether necessary to afford previous legal representatives opportunity to swear affidavit - O'Connor v Private Residential Tenancies Board [2008] IEHC 205 (Unrep, Hedigan J, 25/06/2008), CS v Minister for Justice [2004] IESC 44 [2005] 1 IR 343, Akujobi v Minister for Justice [2007] IEHC 19 (Unrep, MacMenamin J, 12/01/2007), FU v Minister for Justice [2008] IEHC 385 (Unrep, Hedigan J, 11/12/2008) and OST v Minister for Justice [2008] IEHC 384 (Unrep, Hedigan J, 12/12/2008) applied ; A v Refugee Appeals Tribunal [2007] IEHC 290 (Unrep, Peart J, 27/7/2007), GK v Minister for Justice [2001] 1 ILRM 401, Kelly v Leitrim County Council [2005] IEHC 11 [2005] 2 IR 404 and Bugovski v Minister for Justice [2005] IEHC 78 (Unrep, Gilligan J, 18/3/2005) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Extension of time refused (2008/1136JR - Hedigan J - 18/12/2008) [2008] IEHC 431

A(J) v Refugee Applications Commissioner

Facts: The applicant sought leave in respect of five decisions, including decisions refusing him refugee status, subsidiary protection and a decision to deport him. The applicant was outside of the 14-day time limit for judicial review by 15 months, 13 months and 2 months in respect of certain of the decisions and the date on which proceedings were initiated. The applicant alleged that he was ignorant of legal matters which was the reason for the delay, along with late representation. The respondent alleged that the excused proffered was insufficient.

Held by Hedigan J. that the proceedings had been characterised by delay from the outset. The period of time that elapsed between notification to the applicant of a particular decision and the issuing of the proceedings was not inordinate. However, the period of delay had to be considered in light of the previous inordinate and inexcusable periods of delay and the applications for leave would be refused.

Reporter: E.F.

1 JUDGMENT OF MR JUSTICE HEDIGAN, delivered on the 18th day of December, 2008

2 1. The applicant is seeking leave to apply for judicial review of five decisions relating to him:-

3 a a. The decision of the Office of the Refugee Applications Commissioner (ORAC) to make a negative recommendation in respect of him;

4 b b. The decision of the Minister for Justice, Equality and Law Reform ("the Minister") not to grant a declaration of refugee status to him;

5 c c. The decision of the Minister not to grant subsidiary protection to him;

6 d d. The decision of the Minister to make a deportation order in respect of him;

7 e e. The decision of the Minister not to exercise his discretion to revoke that deportation order under section 3(11) of the Immigration Act 1999.

8 2. At the start of the leave hearing in the present case, counsel for the respondents indicated that she wished to make a preliminary objection to the consideration of the leave applications in respect of each of the five decisions on the basis of the delay in commencing the within proceedings.

(i) Extension of Time

9 3. The applicant commenced the within proceedings on 13 ^th October, 2008. He is therefore outside of the 14-day time limit allowed by section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 in respect of each of the following decisions:-

10 a a. By 15 months in respect of the ORAC decision - that decision was notified to the applicant on 4 ^th July, 2007;

11 b b. By 13 months in respect of the Minister's decision not to grant a declaration - that decision was notified to him on 27 ^th July, 2007; and

12 c c. By 2 months in respect of the decision to make a deportation order - that decision was notified to him on 1 ^st August, 2008.

13 4. The respondents submit that no reasonable explanation has been proffered by the applicant in respect of the delay. In his grounding affidavit, the applicant states as follows at paragraph 6:-

"I say that I am ignorant of legal matters, and my understanding of the process which I was going through is very limited. I say that I was advised by my then legal representative that an appeal should be made to the Refugee Appeals Tribunal. I say and believe that I was asked further details about my asylum claim, and that an appeal form was being submitted."

14 5. At paragraph 15, he states that "now is the first time I have procured the representation which allows me to bring these proceedings."

15 6. The respondent...