A (K) & A (A) (A Minor) v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE HEDIGAN
• Judgment Date: 16 October 2008
• Neutral Citation: [2008] IEHC 314
• Date: 16 October 2008
• Court: High Court
• Docket Number: [1237 JR/2006]

[2008] IEHC 314

THE HIGH COURT

[1237 JR/2006]

A (K) & A (A) (A Minor) v Refugee Applications Commissioner & Ors

BETWEEN

K. A. AND A. A. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, K. A.)

APPLICANTS

AND

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

RESPONDENTS

AND

HUMAN RIGHTS COMMISSION

NOTICE PARTY

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

Abstract:

Immigration - Asylum - Refugee application - Judicial review - Extension of time - Whether there was a good and sufficient reason for extending the time limit to bring an application for leave to seek judicial review.

Facts: The first named applicant who was the mother of the second named applicant sought leave on her own behalf and on behalf of her son to seek judicial review of the decision of the first and second named respondents refusing their applications for refugee status. The refugee applications were based on a fear of female genital mutilation and the subjection of the child to tribal rituals. The refugee applications were refused on the basis of lack of credibility, the availability of state protection and the possibility of internal relocation. The application for leave was lodged outside the fourteen day time limit. The applicants accepted that there was considerable delay but submitted that time ought to be extended in light of the tender years of the second named applicant, who was not yet three years old.

Held by Hedigan J. in refusing to grant an extension of time to apply for leave: That in relation to applications on behalf of minors, the court retained a discretion to grant or refuse an extension of time and the exercise of that discretion could be influenced by the court’s assessment of the strength of the grounds advanced for challenging the relevant decision. The grounds advanced by the applicants in this case were so unstatable that it would have been futile to permit the application to be made out of time. There were no good and sufficient reasons for extending the time limit for the minor applicant in this case.

Reporter: L.O’S.

JUDGMENT OF

MR. JUSTICE HEDIGAN

1 The first named applicant is a national of Nigeria and a member of the Yoruba tribe. The second named applicant is her son, who was born in Ireland. They are seeking leave to apply for judicial review of the decision of the Office of the Refugee Applications Commissioner ("ORAC") to recommend that they should not be declared refugees, and of the subsequent decision of the Refugee Appeals Tribunal ("RAT") to refuse their appeal from the impugned ORAC decision.

2 The first named applicant had two children with her first partner, who she met in 1993 and separated from in 1999. In 2001, she had twins with another man, who she married in 2003. She says that in 2005, his family objected to their marriage and when she fell pregnant again, they told her that she would have to undergo female genital mutilation (FGM) and that the child, once born, would be subjected to tribal rituals. The applicant says that her husband supported the wishes of his family. She did not report these matters to the police as she thought they would tell her to settle such matters herself. Instead, she fled Nigeria with her unborn child.

3 The first named applicant arrived in the State on 11^th October, 2005, having travelled via France. She indicated that her unborn child should be included under her asylum application. She gave birth to a son - the second named applicant - on 4^thNovember, 2005. In her ORAC questionnaire and interview, she claimed to fear that she would be subjected to FGM and that her son would be subjected to tribal rituals. She was very non-specific as to what such rituals might involve, suggesting only that he might be immersed under water in a river for confirmation of his parentage.

4 A section 13 report was compiled and in a decision dated 6^th March, 2006, the ORAC officer recommended that the applicants should not be declared refugees. Negative credibility findings were drawn and it was found that state protection and internal relocation might reasonably have been available to the applicants. The applicants' appeal to the RAT was rejected by decision dated 18^th September, 2006. The Tribunal Member found that the first named applicant lacked credibility and that internal relocation was available to the applicants.

5 The Notice of Motion in the present case was filed on 19^th October, 2006. The ORAC decision was notified to the applicants by letter dated 9^th March, 2006 and the RAT decision by letter dated 20^th September, 2006. Thus, the applicants are well outside of the 14 day time-limit allowed by section 5 of the Illegal Immigrants(Trafficking) Act2000; some seven months in respect of the ORAC decision and 12 days in respect of the RAT decision. It therefore...