NN v Minister for Justice and Equality

JurisdictionIreland
CourtHigh Court
JudgeMr Justice David Keane
Judgment Date15 February 2017
Neutral Citation[2017] IEHC 99
Docket Number[2016 No. 145 J.R.]
Date15 February 2017

[2017] IEHC 99

THE HIGH COURT

JUDICIAL REVIEW

Keane J.

[2016 No. 145 J.R.]

BETWEEN
N.N.
APPLICANT
AND
THE MINISTER FOR JUSTICE AND EQUALITY,
THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL,
IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENT

Asylum, Immigration & Nationality – The Refugee Act 1996 – Denial of refugee status – Leave to seek judicial review – Delay – Good and sufficient cause – Application of “balance of probabilities” test.

Facts: Following the grant of leave to the applicant to seek judicial review of the decision of the second named respondent, the applicant now sought an order of certiorari for quashing the said decision whereby the applicant was denied refugee status. The respondents had raised a preliminary objection that the applicant was not entitled to bring the present proceedings as the application for leave was made outside the prescribed limit. The respondents contended that before deciding the substantial application, the Court should have determined whether the applicant was entitled for the condonation of delay. The applicant argued that the second named respondent had erred in applying the “balance of probabilities” standard of proof to the past or present events.

Mr. Justice Keane dismissed the present proceedings. The Court refused to grant an order for the extension of time. The Court held that the reason given by the applicant for delay was the adoption of new approach by his lawyers, which was not a good and sufficient reason for granting the time extension. The Court held that the second respondent was correct in applying the “balance of probabilities test” to assess the evidence presented by the applicant. The Court noted that since the second respondent was not satisfied in relation to the applicant's general credibility, the “benefit of doubt” test could not be applied as the establishment of credibility was a condition precedent in order to give benefit of doubt to an asylum-seeker.

JUDGMENT of Mr Justice David Keane delivered on the 15th February 2017
Introduction
1

By order made on the 14th March 2016, Mac Eochaidh J granted leave to the applicant to apply by way of judicial review for an order of certiorari quashing the decision made on the 13th October 2015 by the International Protection Appeals Tribunal (“the IPAT”) (then called the Refugee Appeals Tribunal), pursuant to s. 16, sub-s. 2 of the Refugee Act 1996, as amended (“the 1996 Act”), to affirm the recommendation of the Refugee Applications Commissioner that the applicant should not be declared to be a refugee.

International Protection Appeals Tribunal
2

As these proceedings were originally constituted, the second named respondent was the Refugee Appeals Tribunal. However, the International Protection Act 2015 (Commencement) (No. 3) Order 2016 appointed the 31st December 2016 as the day on which those parts of the the International Protection Act 2015 (“the 2015 Act”) not already in force came into operation.

3

Section 71, sub-s. (1) of the 2015 Act provides:

“With effect from the establishment day, the administration and business in connection with the performance of any functions of the former Tribunal under the Act of 1996, the Regulations of 2006, the Regulations of 2013 and the Dublin System Regulations are transferred, to the Tribunal.”

4

As s. 2 of the 2015 Act makes clear, “the Tribunal” means the International Protection Appeals Tribunal established by s. 61 of that Act.

5

Section 71, sub-s. (5) states:

“Where the former Tribunal is a party to legal proceedings pending immediately before the establishment day which relate to functions which, on and after that date, are functions of the Tribunal, the Tribunal shall, insofar as the proceedings relate to those functions, be substituted in the proceedings for the former Tribunal and the proceedings shall not abate by reason of the substitution.”

6

Accordingly, the International Protection Appeals Tribunal has been substituted for the Refugee Appeals Tribunal in these proceedings with effect from the 31st December 2015 by operation of law.

Application to extend time
7

The order of the 14th March 2016 recites on its face that the applicant is given leave to seek an order of certiorari on the grounds set forth at paragraph (e) of his statement of grounds, dated the 7th March 2016. That statement of grounds has not been produced to the court. Instead, the applicant purports to rely on the grounds set forth at paragraph (e) of an “amended” statement of grounds dated the 24th March 2016. The applicant submits that, although the Order states the contrary, the application for leave was in fact made based on the amended statement of grounds, dated some ten days later.

8

Counsel for the applicant submitted at the commencement of the hearing that, although the Order does not say so, during the application for leave ex parte on the 14th March 2016, the applicant sought and was granted an extension of time to seek judicial review of the tribunal decision of the 13th October 2015. Ground 6 at paragraph (e) of the amended statement of grounds, dated the 24th March 2016, states: “An extension of time to be granted for the reasons set out in the [a]pplicant's grounding affidavit.”

9

Counsel for the applicant acknowledged that no application was made to speak to the terms of the Order of the 14th March 2016, whether under O. 28, r. 11 of the Rules of the Superior Courts. as amended (“the RSC”) or otherwise, at any time since that Order was made and perfected. Nor was any application made to the Court to direct the production of a transcript, whether under O. 123, r. 5 of the RSC or otherwise. Nevertheless, Counsel for the applicant - who, in fairness to him, had not been in the case at the time of the application for leave - was clear that his instructions were that an extension of time to bring the application had been granted by Mac Eochaidh J when the application for leave ex parte was made and hence, the Court should ignore the plain terms of the Order in favour of accepting that submission.

10

The respondents' statement of opposition is dated the 5th August 2016. An affidavit of verification concerning it was sworn on the 2nd September 2016. It is largely a traverse of the grounds for relief set forth by the applicant, together with a denial that the applicant is entitled to the order of certiorari he seeks. However, it does contain a preliminary objection that the applicant is not entitled to bring these proceedings in circumstances where application for leave was made outside the time permitted, and no adequate basis for an extension of time has been set out.

11

At paragraph 7 of the grounding affidavit that he swore on the 6th March 2016, the applicant has provided the following explanation for his delay in seeking leave to apply for judicial review:

“I received a letter from the Refugee Legal Services dated the 22nd of October 2015 asking me to consider going to a private solicitor within 28 days and telling me that they did not believe there were grounds for bringing Judicial Review proceedings in the High Court. I did not understand what they meant by this and I telephoned the Refugee Legal Services on receipt of this letter to request an appointment to see my Solicitor. I was told to wait for my three options letter. I rang my former Solicitors approximately 3 to 4 times to ask what my options were and to ask to see my Solicitor each time I was told to wait until I got the next letter from the Department of Justice and then they would arrange to meet with me. I have not received any further correspondence from the Department of Justice or my former Solicitors. I also say that I am of limited means and receive 19 euros per week and did not think I could afford to go to another Solicitor. I got my current Solicitors number from a friend of mine around the 10th February 2016 and I then called him to ask for an appointment. He arranged to meet me on the 21st day of February 2016 and I am advised he wrote to my former Solicitors to request my file. I am advise (sic) he received the files around the 22nd day of February 2016 and he sent my papers to Counsel who drafted the within proceedings. I say my Solicitor called me yesterday to arrange to meet me today.”

12

The applicant's original written legal submissions, dated the 4th January 2017 and electronically filed the following day, contained the assertion that an extension of time had been sought and granted when the application for leave ex parte was made to Mac Eochaidh J on the 14th March 2016. The respondents' written legal submissions, dated the 10th January 2017 and filed two days later, address, among other matters, the preliminary objection clearly flagged in their statement of opposition that the applicant's proceedings are out of time. The applicant then delivered, on the eve of the hearing and without the leave of the court, “additional [written legal] submissions” in support of an application for an extension of time within which to seek judicial review. From that occurrence, the respondents and the court were left to infer that the applicant was putting forth, as an alternative to his submission that an extension of time had already been granted by Mac Eochaidh J, the argument that the court should now grant an extension of time.

13

The respondents objected to the filing of those “additional submissions” but conceded, very properly, that, since the legal principals and jurisprudence with which they deal are well-known, no prejudice would be caused by allowing them to be relied upon. For that reason, I ruled that the applicant could rely on those submissions.

14

In the unusual circumstances that had arisen, and very much as an exceptional measure, the Court consulted the digital audio recording of the application for leave ex parte made to Mac Eochaidh J by Senior Counsel...

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