S v Minister for Justice

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 05 March 2002
• Neutral Citation: [2002] IESC 17
• Court: Supreme Court
• Docket Number: [S.C. No. 164 of 2001]
• Date: 05 March 2002

[2002] IESC 17

THE SUPREME COURT

Denham J.

McGuinness J.

Fennelly J.

Record No. 164/2001

S (SAALIM) v. MINISTER FOR JUSTICE & INTERIM REFUGEE APPEALS AUTHORITY & ORS

BETWEEN/

S

APPLICANT/APPELLANT

and

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM, THEINTERIM REFUGEE APPEALS AUTHORITY, IRELAND, THE ATTORNEYGENERAL

RESPONDENTS

Citations:

B & S (BENSON & SAALIM) V GOVERNOR OF TRAINING UNIT GLENGARIFF PARADE & MIN FOR JUSTICE 2002 2 ILRM 161

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)

K(G) & ORS V MIN FOR JUSTICE 2002 1 ILRM 401

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

Synopsis:

IMMIGRATION

Asylum

Practice and procedure - Preliminary issue - Judicial review -Time limits - Delay - Leave to extend time - Whether delay by applicant should act as bar to granting relief - Whether State prejudiced by delay in making application - Rules of the Superior Courts, 1986 Order 84 rule 21 - Illegal Immigrants (Trafficking) Act, 2000 section 5 (164/2001 - Supreme Court - 05/03/2002) - [2002] 2 IR 163

S v Minister for Justice, Equality and Law Reform

Facts: The applicant was refused refugee status and his appeal to the Appeals Authority was rejected. The applicant sought to initiate judicial review proceedings in respect of both decisions. The application was late and the applicant sought leave to extend time for leave to initiate judicial review proceedings pursuant to the Rules of the Superior Courts and pursuant to section 5 (2)(a) of the Illegal Immigrants (Trafficking) Act, 2000. Mr. Justice Finnegan held that there were two relevant periods of delay. Some discount would be given as the delay included a weekend and the applicant's solicitor was on holidays. However the fact that there was a delay placed a heavy onus on the applicant's solicitor to act with expedition on his return from holidays. No explanation or excuse had been furnished in respect of a certain part of the delay. Having regard to the policy underlying the strict time limits imposed by the Illegal Immigrants (Trafficking) Act, 2000 the delay was excessive. The extension of time sought under the Act would be refused. The application to extend time to challenge the decision refusing refugee status under the Rules of the Superior Courts Order 84 Rule 21 was refused. However the Court would grant leave extending time to enable the applicant to apply for leave in relation to the appeal decision refusing him refugee status. Time would be extended in order for the applicant to issue the relevant notice of motion. The applicant appealed against the decision to refuse him an extension of time.

Held by the Supreme Court (Denham J delivering judgment; McGuinness J and Fennelly J agreeing) in allowing the appeal. The applicant had already obtained leave to judicially review the decision of the Appeals Authority. There was a degree of unreality in permitting judicial review of a recommendation but not of the order that was subsequently based on the recommendation. The delay in issue was essentially delay by legal advisors. The applicant had an arguable case and there were good and sufficient reasons to extend time for the application for judicial review. In addition the State was not prejudiced by the delay.

1 5th March, 2002by Denham J.[nem diss]

2 1. This is an appeal by the Applicant against the refusal of Finnegan J. (as he then was) on the 10th May, 2001 to grant an extension of time to apply for leave to apply for judicialreview.

3 2. This court has determined that the decision of the High Court refusing an extension of time is appealable: B and S v. Minister for Justice, Equality and Law Reform, Unreported, Supreme Court, 30th January, 2002.

4 3. The relevant statute law is to be found in s. 5 of the Illegal Immigrants (Trafficking) Act, 2000. It provides that a person shall not question the validity of a variety of decisions:

"Otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of1986)..."

5 There is a time limit of 14 days to make such application unless there is good and sufficient reason. S. 5(2)(a) of the said Act states that the application for leave to apply for judicial review shall:

"be made within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall bemade,..."

6 4. In this case the High Court held:

"The Applicant was refused refugee status on the 1st March, 2000 and on appeal to the Appeals Authority his appeal was rejected and he was notified of this by letter dated 17th November, 2000. On the 21st November, 2000 the Applicant contacted his solicitor for an appointment and an appointment was made for the 22nd November, 2000. Following a consultation a brief was prepared for Senior Counsel and sent to him on 24th November, 2000. By fax dated the 28th November, 2000 Senior Counsel sought further instructions. On 30th November, 2000 the Applicant contacted his solicitor and a consultation with Senior and Junior Counsel was arranged for 6th December, 2000 and a day or two thereafter Senior Counsel furnished his advice. The Applicant's solicitor was abroad on holiday from the 7th December, 2000 to 12th December, 2000. A Motion was issued seeking an extension of time on the 22nd December, 2000. In these circumstances there are two relevant periods of delay i.e., from the 29th November, 2000 to the 6th December, 2000 and from the 8th December, 2000 to the 22nd December, 2000. In respect of the first period I take into account that it included a weekend and I so regard the delay as extending to 5 working days only....