S.J. v Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 07 March 2014
• Neutral Citation: [2014] IEHC 108
• Court: High Court
• Date: 07 March 2014

[2014] IEHC 108

THE HIGH COURT

[No.1193 J.R./2009]

J (S) v Refugee Applications Cmsr & Ors

JUDICIAL REVIEW

IN THE MATTER OF REFUGEE ACT 1996(AS AMENDED),

IN THE MATTER OF THE IMMIGRATION ACT 1999(AS AMENDED),

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000(AS AMENDED), AND

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003, SECTION 3(1)

BETWEEN

S. J.

APPLICANT

AND

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

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

REFUGEE ACT 1996 S13

IMMIGRATION ACT 1999 S3

REFUGEE ACT 1996 S12(1)

EEC DIR 2005/85 ART 23

EEC DIR 2005/85 ART 39

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5(1)

O'KEEFFE v BORD PLEANALA & O'BRIEN 1993 1 IR 39 1992 ILRM 237

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

D (HI) & A (B) v REFUGEE APPLICATIONS CMSR & ORS 2013 2 CMLR 809 2013 AER (D) 74 (FEB)

IMMIGRATION ACT 1999 S3(2)(F)

M (M) v MIN FOR JUSTICE & ORS (NO 3) UNREP HOGAN 23.1.2013 2013 IEHC 9

A (J) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MCDERMOTT 19.4.2013 2013 IEHC 244

MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364 2003/38/9156

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

M (IM) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (LEVEY) UNREP COOKE 26.7.2011 2011/33/9272 2011 IEHC 309

EEC DIR 2004/83 ART 4(1)

AFOLABI v MIN FOR JUSTICE & ORS UNREP COOKE 17.5.2012 2012/1/199 2012 IEHC 192

G (MY) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP HERBERT 28.4.2010 2010/20/4828 2010 IEHC 127

KEEGAN v GARDA SIOCHANA OMBUDSMAN CMSN 2012 2 IR 570 2012/20/5800 2012 IESC 29

M v MIN FOR JUSTICE & ORS 2013 1 WLR 1259

Judicial Review – Immigration – Refugees – Leave to Apply – Extension of Time – Asylum – Credibility – Persecution - subsidiary protection - Refugee Applications Commissioner

Facts: The applicant and his wife (not a party to proceedings), both Nigerian citizens arrived in Ireland in August 2008 and made applications for asylum on the 11 ^th August of that same year. These applications were denied on the basis that they were not credible and that their alleged fears of persecution, namely their fears of the Nigerian authorises and the applicant"s father in law was not well-founded. This decision was upheld by the Refugee Appeals Tribunal and their subsequent application for subsidiary protection was also denied and notified to the applicants in October 2009. A deportation order was made in respect of the applicant on 28th October, 2009. By notice of motion, the applicant in November 2009, sought leave to apply for judicial review by way of certiorari for orders quashing the deportation order, the refusal of subsidiary protection, a direction made pursuant to s. 12(1) of the Refugee Act 1996, and orders quashing the decisions of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. A number of declarations were sought, including a declaration that the direction dated 11th February, 2003, made pursuant to s. 12(1) of the Refugee Act, as amended, by the Minister for Justice, Equality and Law Reform (the Minister) was incompatible with Article 23 of Council Directive 2005/85/EC and that the Refugee Act 1996, as amended, was incompatible with Article 39 of the same Directive and further, a declaration that the Minister had failed to provide the applicant with an effective remedy before a court or tribunal within the meaning of Article 39. A further declaration was sought pursuant to s. 5(1) of the European Convention on Human Rights Act 2003 that the rule of law governing the scope of judicial review relating to asylum and deportation decisions as set out in O"Keeffe v. An Bord Pleanála [1992] 1 I.R. 39 was incompatible with the European Convention on Human Rights and failed to provide an effective remedy for the purposes of Article 13 of the Convention. Following the European Court of Justice's decision in H.I.D., B.A. v. Refugee Applications Commissioner, Refugee Appeals Tribunal & OrsCase-175/11, the relief sought was in respect of the refusal of subsidiary protection and the deportation order only. Specifically, the applicant claimed that in determining his subsidiary protection application, the Minister had placed total reliance upon the adverse credibility finings previous made by the Refugee Appeals Tribunal and he sought to amend his statement of grounds to reflect this. The notice of motion seeking the amendment was not issued until Feb 2014, at which time the applicant noted his desire to rely on the judgment of Hogan J. in M.M. v. Minister for Justice, Equality and Law Reform delivered on 23rd January, 2013, which dealt with the point and to adjourn the hearing of the case pending the outcome of a Supreme Court appeal in that matter.

Held by Justice McDermott that whilst the applicant contended that as a matter of fairness he should have been allowed to proceed to amend his grounds to include a challenge based on M.M. because the determination made in respects of his subsidiary protection application relied heavily on findings of credibility made by the Refugee Appeals Tribunal, the challenge to the subsidiary protection decision was not based on a challenge to the substantive decision, but only on the procedural consequences of a successful challenge to the Tribunal decision which was ultimately withdrawn. He further noted that the applicant sought to ground this challenge on a different basis which had never been relied upon by the applicant. Asserting that the applicant was guilty of delay in initiating the proposed amendment and that no reasonable excuse for such a delay had been proffered, Justice McDermott reasoned that the application for amendment should not be granted. Acknowledging, that the initial application for leave to apply for judicial review did not contain a challenge to the credibility findings of the Refugee Applications Commissioner or the Refugee Appeals Tribunal, but rather was based on a challenge to the lawfulness of the procedures governing asylum applications under European law, Justice McDermott also acknowledged that no complaint had been advanced concerning the procedures governing subsidiary protection. Nor did the applicant challenge the application of the Qualification Directive. It was further reasoned by Justice McDermott that there was no evidence that the applicant ever had any intention of challenging the subsidiary protection refusal on any basis other than that outlined in the original grounds and only did so when the hopelessness of that position became apparent. Unpersuaded by the explanation offered for failing to issue a notice of motion within the required time limits, Justice McDermott reasoned that to allow an amendment would, in effect, allow the applicant to advance an entirely new cause of action. Whilst, the nature of the relief sought remained unchanged by the proposed amendment, he reasoned that it completely transformed the nature of the challenge to a substantive attack on the subsidiary protection decision. To do so at this stage, he determined, would be unfair to the respondent. Thus, he was not willing to extend the time-limit for the bringing of the application or to permit the amendment of the grounds requested, and because it was deemed not to be in the interests of justice. Describing the application as opportunistic his application was refused.

1 1. This is an application for an order amending the statement of grounds in an application for leave to apply for judicial review together with an extension of time.

2 2. The applicant, S.J., is the husband of A.G. who was originally the second named applicant in these proceedings. Both are Nigerian nationals who arrived in Ireland on 8 ^th August, 2008. They made applications for asylum on 11 ^th August. S.J. claimed that he feared the Nigerian authorities and his partner's father. His partner at the time. A.G.. also outlined her fear of her father on account of her wish to many S.J.. They were married in the state on 4 ^th March, 2009.

3 3. The office of the Refugee Applications Commissioner recommended that the applicants should not he declared refugees and in s. 13 reports in respect of each, made adverse credibility findings concerning their alleged fears of persecution which were determined not to be well founded. The recommendations in both cases were appealed to the Refugee Appeals Tribunal on the basis of a challenge to the adverse credibility findings, The Tribunal issued decisions affirming the recommendations of the Commissioner on 4 ^th June, 2009, following an oral hearing on 19 ^th May. Subsequently, an application was made for subsidiary protection on 13 ^th August, 2009, which was refused for reasons set out in a determination of 8 ^th October and notified to the applicants by letter dated 19 ^th October. An application under s. 3 of the immigration Act 1999, for leave to remain in the state was also made and following the refusal of subsidiary protection a deportation order was made in respect of the applicant on 28 ^th October, based on an examination of file of 5 ^th October, notification of which was furnished on 3 ^rd November.

4 4. By notice of motion dated 13 ^th November, 2009, tile applicant sought leave to apply for judicial review by way of certiorari for orders quashing the deportation order, the refusal of subsidiary protection, a direction made pursuant to s . 12(1) of the Refugee Act 1996, and orders quashing the decisions of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. A number of declarations were sought, including a declaration that the direction dated 11 ^th February, 2003, made pursuant to s. 12(1) of the Refugee Act, as amended, by the Minister for Justice, Equality and Law Reform (the Minister) was incompatible...