MGOL v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 04 April 2017 |
| Neutral Citation | [2017] IEHC 216 |
| Court | High Court |
| Docket Number | [2016 No. 299 J.R.] |
| Date | 04 April 2017 |
[2017] IEHC 216
[2016 No. 299 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Asylum, Immigration & Nationality – The Refugee Act 1996 – Refusal of the refugee status – Appeal – Abandonment of appeal – Lack of reasonable explanation
Facts: The applicant/minor through her mother sought an order of certiorari for quashing the decision of the respondent for deeming that the applicant's appeal against the decision of the Office of the Refugee Applications Commissioner (ORAC) was withdrawn. The applicant contended that the impugned decision was unreasonable as it did not take account of the applicant's circumstances. The respondent argued that the applicant was given several opportunities to fill the correct form with all the particulars in detail; however, the applicant had failed to file any reply within the prescribed time limit.
Ms. Justice O'Regan refused to grant the desired relief to the applicant. The Court held that the applicant had failed to provide any cogent explanation for not replying to the various correspondences sent by the respondent for making the relevant changes. The Court held that the applicant was mandated to cooperate with the respondent under s. 11 of the Refugee Act 1996, which she had failed to do. The Court found that the applicant did not present any evidence as to what she did in order to comply with the instructions given by the respondent in the prescribed time limit.
The applicant herein, who was born in 2009, in Ireland, acting through her mother and next friend, secured leave by order of 18th July, 2016 to bring the within proceedings seeking to quash the decision of the respondent of 7th April, 2016 deeming her appeal against the decision of ORAC refusing her refugee status to be withdrawn.
One of the complaints for which leave was afforded was to the effect that s. 16(2B) (a) of the Refugee Act 1996 is unconstitutional however this aspect of the matter did not proceed in the context of the within judicial review application, by consent of both parties.
The outstanding grounds upon which order of certiorari is sought are as follows:-
(i) the respondent failed to exercise any discretion and therefore breached the relevant section;
(ii) in concluding that no discretion existed the respondent unlawfully fettered her discretion;
(iii) where the applicant's failure to comply with the section was due to circumstances beyond her control the respondent acted irrationally and in breach of procedures Directive and/or the Constitution and fair procedure;
(iv) the respondent erred in law in concluding that no discretion existed.
The applicant was born in 2009 in Ireland. An application was made on her behalf for refugee status on 16th March, 2010. There followed an interview with the applicant's mother on 16th April, 2010 and on 21st May, 2010 ORAC recommended that the application be refused.
By appeal of the 11th June, 2010 the applicant sought to appeal the recommendation aforesaid however the appeal document used was in the wrong form and did not include any grounds pertinent to the application in respect of the purported appeal. By letter of 2nd July, 2010 the respondent sought that the applicant would submit the correct form and include the grounds upon which the appeal was being processed. Thereafter it appears that the applicant maintained judicial review proceedings however these were subsequently withdrawn, apparently by consent, and apparently on the basis that the applicant could continue with her appeal.
On 24th July, 2014 the respondent wrote to the applicant seeking that the appeal would be set forth in the correct form and also include the substantial grounds upon which the appeal was to be processed.
It is common case that there was no response to this communication.
On 1st March, 2016 the respondent communicated with the applicant's solicitors seeking that the appeal would be maintained with the correct form, that grounds would be advised within five days and that submissions together with a list of documents would be furnished prior to any hearing.
The response to the communication aforesaid was a letter of 9th March, 2016 from the applicant's then solicitors to the effect that the solicitors were seeking updated instructions.
By letter of 10th March, 2016 the respondent wrote to the applicant's solicitors pursuant to the provisions of s. 16(2B) (a) (in fact the wrong provision was incorporated in the letter however no issue was taken with this at the hearing) wherein the applicant was advised that if the applicant did not indicate whether or not the appeal was continuing within fifteen working days then the appeal would be deemed withdrawn. The relevant fifteen working days expired on 5th April, 2016.
Prior to the expiry of the period by letter of the 22nd March, 2016 the respondent notified the applicant of the date and time of an oral hearing namely the 7th April, 2016. This notification was also addressed to the applicant's mother and solicitors.
According to the applicant's affidavit she was advised on 24th March, 2016 that her prior solicitors could no longer act for her and on 29th March, 2016 the plaintiff instructed her current solicitors. The applicant's mother was in possession of the file since the 24th March 2016.
It is common case that no response was in fact afforded to the letter of 10th March, 2016 either by the applicant (through her mother) or by solicitors on her behalf. In this regard at the hearing of the matter the explanation tendered as to why the new solicitors did not respond to the letter of 10th March, 2016 prior to 5th April, 2016 was to the effect that they only received the file a number of days prior to the expiry of the period and they could not have been required to peruse the file to ensure that they had dealt with any outstanding query from the respondent. It is noted they perused the file sufficiently to see the content of the letter of 22nd March, 2016.
The applicant accompanied by Counsel attended on 7th April, 2016 for the hearing, although for the purpose of seeking an adjournment, however were advised on that date that the appeal was deemed withdrawn and that the respondent had no discretion to consider the matter further.
On that day the applicant indicated that the reason why the respondent was not advised within the timeframe identified in the letter of 10th March, 2016 was not her fault – the applicants mother did not expand on why it was not her fault (see para. 17 of the grounding affidavit).
Section 16(2B) provides:-
'Where – (a) it appears to the Tribunal that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her appeal, or
(b) the Minister notifies the Tribunal that he or she is of opinion that the applicant is in breach of subsection (4)(a), (4A) or (5) of section 9,
the Tribunal shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 15 working days of the sending of the notice) whether he or she wishes to continue with his or her appeal and, if an applicant does not furnish an indication within the time specified in the notice, his or her appeal shall be deemed to be withdrawn.'
The applicant's argument is that for the purposes of providing an effective remedy, in exceptional circumstances, it should be possible to extend the time within which the applicant might indicate whether or not the appeal is proceeding.
The applicant refers to Council Directive 2005/85/EC. Under Article 39(6) thereof it is provided:-
'Member States may also lay down in national legislation
the conditions under which it can be assumed that an applicant
has implicitly withdrawn or abandoned his/her remedy pursuant
to paragraph 1, together with the rules on the procedure to be
followed.'
The relief mentioned in para. 1 of Article 39 is that Member States are to ensure that applicants for asylum have the right to an effective remedy before a court or tribunal inter alia against decisions taken in applications for asylum. The article is in fact headed 'Appeal Procedure'.
The applicant likens the matter to Article 20 of the Directive that deals with procedure in cases of implicit withdrawal or abandonment of an application (a first instance status) and in that regard it is possible for Member States to...
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