M.B.O. [Nigeria] v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Judge: Justice Henry Abbott,
• Judgment Date: 21 September 2010
• Neutral Citation: [2010] IEHC 331
• Date: 21 September 2010
• Court: High Court
• Docket Number: [No. 580 J.R./2008]

[2010] IEHC 331

THE HIGH COURT

[No. 580 J.R./2008]

O (M B)(Nigeria) v Refugee Appeals Tribunal & Min for Justice

JUDICIAL REVIEW

BETWEEN

M.B.O. [NIGERIA]

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL

AND

MINISTER FOR JUSTICE AND LAW REFORM

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

S (C) & ORS v MIN FOR JUSTICE & AG 2005 1 IR 343 2005 1 ILRM 81 2004/45/10305 2004 IESC 44

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

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

DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT & SGS (IRL) LTD 2003 2 IR 270 2003 2 ILRM 210 2003/12/2484

A (J) v REFUGEE APPLICATIONS CMSR & ORS UNREP HEDIGAN 18.12.2008 2008/1/27 2008 IEHC 431

K (G) & ORS v MIN FOR JUSTICE & APPEALS AUTHORITY & ORS 2002 2 IR 418 2002 1 ILRM 401 2001/13/3557

IMMIGRATION

Asylum

Delay - Judicial review - Leave - Extension of time for leave to apply for judicial review of refusal of refugee application - 6 day delay - Apportionment of blame for delay - Whether whole delay explained - Whether relevant parties put on notice of application - Fair procedures - Strength of substantive case - CS and ors v Minister for Justice, Equality and Law Reform and ors [2004] IESC 44, [2005] 1 IR 343 distinguished; Re Article 26 and ss 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, and A and anor v Refugee Appeals Tribunal and ors [2007] IEHC 290, (Unrep, Peart J, 27/7/2007) considered; Dekra Éireann Teoranta v Minister for Environment and ors [2003] 2 IR 270 and GK v Minister for Justice, Equality and Law Reform [2002] 2 IR 418 followed; A v Refugee Applications Commissioner and ors [2008] IEHC 431, (Unrep,Hedigan J, 18/12/2008) approved - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Application for extension of time for leave to apply for judicial review refused (2008/580JR - Abbott J - 21/9/2010) [2010] IEHC 331

MBO v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform

Justice Henry Abbott,

1 The applicant, a Nigerian national, seeks leave to apply for judicial review of the decision of the Refugee Appeals Tribunal (the "Tribunal") to affirm the recommendation of the Refugee Applications Commissioner that she should not be granted refugee status.

2 The preliminary issue of delay was heard at the start of the leave hearing. The impugned decision of the Refugee Appeals Tribunal was dated the 25th April, 2008, and communicated by letter dated the 29th April, 2008. It was received by the applicant on the 1st May, 2008. The within proceedings were brought on the 21 st May, 2008. The applicant is therefore six days outside of the fourteen day time limit imposed by s. 5 of the Illegal Immigrants (Trafficking) Act2000. It falls to be considered by the Court whether in the circumstances there is good and sufficient reason for extending time.

3 According to the applicant's version of events, as contained in her affidavit of 21st May, 2008, she received no communication from the Refugee Legal Service (who had represented her at the Tribunal hearing) concerning the Tribunal's decision of 25th April, 2008. On the 1st May, 2008, the same day she received the Tribunal's decision, the applicant contacted private solicitors - whom she does not name - and informed them of the Tribunal's decision. The solicitors in question had previously agreed to represent the applicant's infant daughter in a separate asylum application but not to represent the applicant herself. She called the solicitors' office again on the 6th and 7th of May, 2008, and the solicitor dealing with the matter returned her call on the 8th May, 2008. The solicitor informed the applicant that due to the firm's workload they were unable to take on her case.

4 On the 9th May, 2008, the applicant contacted the Refugee Legal Service at its Galway office. She was informed that the person who had dealt with her case had left the office and her file had been transferred to Dublin. On the 12th May, 2008, she contacted the Dublin office and was told that her file had not yet been reallocated to another person. No further communication from the Refugee Legal Service was forthcoming. She contacted the office of her current solicitor, Mr. Niall Sheerin, on the 13th May, 2008 and instructed Mr. Sheerin in respect of these proceedings on the 15th May, 2008.

5 It was submitted by Counsel for the applicant that no personal blameworthiness can be attributed to the applicant for the delay. He cited the Supreme Court's decision inC.S. & Ors v. Minister for Justice, Equality and Law Reform & Ors [2005] 1 I.R. 343 as authority to the effect that where no blame attaches to an applicant, he or she should not be held vicariously responsible for the actions (or inactions) of his or her legal representatives.

6 Reference was also made to the judgment of Keane C.J. in the case ofRe Article 26 and ss. 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 I.R. 360. At pp. 393 to 394 the Chief Justice stated as follows:-

"In applying that test in this case, the court acknowledges that there are likely to be cases, perhaps even a very large number of cases, in which for a range of reasons or a combination of reasons, persons, through no fault of their own, (as inBrady v. Donegal County Council), are unable to apply for leave to seek judicial review within the appeal limitation period, namely fourteen days. This is a situation with which the courts deal on a routine basis for other limitation periods. The fourteen day time limit envisaged by the Bill is not the shortest with which the...