A (K) v Refugee Applications Commissioner & Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Court | High Court |
| Judge | Mr. Justice Herbert |
| Judgment Date | 28 April 2010 |
| Neutral Citation | [2010] IEHC 126 |
| Date | 28 April 2010 |
[2010] IEHC 126
THE HIGH COURT
BETWEEN
AND
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)
K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557
MOYOSOLA v REFUGEE APPLICATIONS CMSR & ORS UNREP CLARKE 23.6.2005 2005/40/8261 2005 IEHC 218
REFUGEE ACT 1996 S13(5)
REFUGEE ACT 1996 S13(6)
REFUGEE ACT 1996 S13(1)
REFUGEE ACT 1996 S2
REFUGEE ACT 1996 S11B
KONADU v MIN FOR JUSTICE & ANOR UNREP BIRMINGHAM 11.4.2008 (EX TEMPORE)
REFUGEE ACT 1996 S11
A (F) & A (B)(A MINOR) v REFUGEE APPEALS TRIBUNAL & ORS UNREP PEART 27.7.2007 2007/1/188 2007 IEHC 290
A (J) & A (D)(A MINOR) v REFUGEE APPLICATIONS CMSR & ORS 2009 2 IR 231 2008/1/43 2008 IEHC 440
MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364 2003/38/9156
IMMIGRATION
Asylum
Credibility -Fear of persecution - Availability of protection in country of origin - Failure to apply as soon as reasonably practicable - No oral hearing - Whether finding of lack of credibility formed basis for negative finding - Whether reliance on s 13(6) justified if lack credibility underpinning decision - Whether denial of constitutional justice in such circumstances - Decision based on assessment of recorded contents of interview - Decision not based on negative credibility finding - Absence of oral hearing justified - GK v Minister for Justice [2002] 2 IR 418, Moyosola v Refugee Applications Commissioner [2005] IEHC 218 (Unrep, Clarke J, 23/06/2005) and Konadu v Minister for Justice, Equality and Law Reform (Unrep, Birmingham J, 11/04/2008) followed - Refugee Act 1996 (No 17), ss 13(5) and 13(6) - Leave refused (2009/739JR - Herbert J - 28/04/2010) [2010] IEHC 126
A (K) v Refugee Applications Commissioner
Facts: The applicant sought leave for judicial review 23 days outside of the 14-day time limit imposed by s. 5(2) Illegal Immigrants (Trafficking) Act 2000 to institute judicial review against a decision refusing the applicant refugee status. The applicant contended that the delay in instituting the proceedings was attributable to geographical dispersion between the applicant and the office of the solicitor taking carriage of the proceedings, as well as a delay resulting from the need to translate the proceedings. The applicant alleged that there was thus good and sufficient reason to extend the time to challenge the decision impugned.
Held by Herbert J. that the Court did not accept that geographical dispersion or the necessity to have the grounding documents translated for the applicant were understandable reasons for the delay or good and sufficient reasons for extending the time to challenge the decision impugned. On the balance of probabilities that on the expiry of the 14-day period and only after that was the view taken that there were possible judicial review proceedings. The Court would decline to extend the time to seek leave to apply for judicial review.
Reporter: E.F.
JUDGMENT of Mr. Justice Herbert delivered on the 28th day of April, 2010.
The applicant in this application filed a Motion on Notice seeking leave to apply for judicial review, 23 days outside the 14 day time limit imposed by s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000. No affidavit seeking to explain and excuse this delay has been filed by the applicant.
In delivering the judgment of the Supreme Court in G.K. and Others v. The Minister for Equality, Justice and Law Reform and Ors [2002] 2 I.R. 418, Hardiman J. for the Court, described the requirement in s. 5(2)(a), that this Court must consider that there is good and sufficient reason for extending the time, as a sui generis special statutory jurisdiction. At p. 423 of the report in that case, the learned judge continued as follows:-
"I believe that the use of the phrase 'good and sufficient reason for extending the period' still more, clearly permits the court to consider whether the substantive claim is arguable. If a claim is manifestly unarguable there can normally be no good or sufficient reason for permitting it to be brought, however slight the delay requiring the exercise of the court's discretion, and however understandable it may be in the particular circumstances. The statute does not say that the time may be extended if there were 'good and sufficient reason for the failure to make the application within the period of fourteen days'. A provision in that form would indeed have focused exclusively on the reason for the delay, and not on the underlying merits. The phrase actually used 'good and sufficient reason for extending the period' does not appear to me to limit the factors to be considered in any way and thus in principle to include the merits of the case.
On the hearing of an application such as this, it is, of course, impossible to address the merits in the detail of which they would be addressed at a full hearing, if that takes place. But it is not an excessive burden to require the demonstration of an arguable case. In addition of course, the question of the extent of the delay beyond the fourteen day period and the reasons if any for it must be addressed."
Having regard to what was held by Clarke J. in Moyosola v. The Refugee Applications Commissioner and Ors. [2005] I.E.H.C. 218, even if what was there held was perhaps obiter, in an appropriate case there would seem to be substantial grounds for contending that the exercise of the powers contained in s. 13(5) and s. 13(6) of the Refugee Act 1996, (as amended), would be inconsistent with the principles of constitutional justice where a negative recommendation of the Refugee Applications Commissioner is based solely upon a finding of lack of credibility as respects the applicant.
In Moyosola v. The Refugee Applications Commissioner and Ors (above cited) Clarke J. (at p. 12) held as follows:-
".... I therefore express no view on the question as to whether the procedures now mandated by s. 13 (as amended) would be inconsistent with the principles of constitutional justice in a case where the report of the RAC made no finding in respect of any of the matters specified in s. 13(6) so that the applicant concerned would have the opportunity to have a full oral hearing before the RAT at a time subsequent to the receipt by them of all of relevant materials which were likely to be relied on at such a hearing. Nor does it necessarily follow from the view which I have expressed above that the relevant procedures would be inconsistent with the principles of constitutional justice in cases where the view taken by the RAC so as to bring the application within the ambit of s. 13(6) was not one based upon the credibility of the applicant but rather was based on, for example, a finding under s. 13(6)(d) that the applicant had lodged a prior application in a Geneva Convention country or that the factual grounds put forward by the applicant concerned were not such that even if accepted same would give rise to a finding consistent with the granting of refugee status. In many such cases the applicant might not be said to be at any impermissibly distinct disadvantage in not having the opportunity to have an oral hearing. Neither might, in all such cases, all of the materials before the RAC be relevant to its determination. For the purposes of this case it is only necessary for me to find, as I do, that where a report of the RAC contains a finding in relation to one of the matters specified in s. 13(6) so as to deprive the applicant concerned of an oral appeal in circumstances where that finding is at least in material part influenced by a finding of lack of credibility on the part of the applicant concerned, it is necessary, in accordance with the principles of constitutional justice, that prior to the making of any such recommendation including any such finding the RAC will have afforded the applicant concerned the opportunity to deal with any matters which might influence such adverse credibility finding."
At para. 4 of the s. 13(1) Report in the instant case the first named respondent concluded as follows:-
"Having regard to the above, s. 13(6)(c) of the Refugee Act 1996, (as amended) applies to this application .... The applicant without reasonable cause, failed to make application as soon as reasonably practicable after arrival in the State."
However, Counsel for the respondents submitted that in the instant case a finding of lack of credibility did not form the basis of the negative recommendation to the third named respondent by the first named respondent.
Despite the lack of any documentation, the first named respondent accepted, for the purpose of the s. 13(1) Report, that the applicant was a Bangladeshi national. The first named respondent further considered that the applicant's subjective fear of persecution could satisfy the test of "persecution" for the purpose of s. 2 of the Refugee Act 1996, (as amended). However, the first named respondent concluded that this fear was not well-founded for the following stated reasons:-
a "(a) The applicant, in his testimony, did not provide any sufficient evidence or adequate knowledge which would indicate that he was a political activist in the BNP party or had been attacked for such involvement.
(b) The applicant did not attempt to seek any support or assistance in Ireland prior to his arrest or while working Ireland and it was plausible to believe that...
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