T.C. [Zimbabwe] v Minister for Justice

• Jurisdiction: Ireland
• Judge: Ms. Justice Stewart
• Judgment Date: 25 June 2015
• Neutral Citation: [2015] IEHC 404
• Court: High Court
• Docket Number: [2011 No. 338 J.R.]
• Date: 25 June 2015

BETWEEN

T.C. [ZIMBABWE]

APPLICANT

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

REFUGEE APPEALS TRIBUNAL

ATTORNEY GENERAL

RESPONDENTS

[2015] IEHC 404

Stewart J.

[2011 No. 338 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – S. 13 (6) (a) of the Refugee Act 1996 – Paper only appeal – Judicial review – Council Directive 2005/85/EC

Facts: The applicant sought leave by way of judicial review against the decision of the second named respondent on papers-only appeal as recommended by the Refugee Applications Commissioner. The applicant contended that s. 13 (6) (a) of the Refugee Act deprived the applicant of any effective remedy to challenge the decision of the Refugee Applications Commissioner.

Ms. Justice Stewart refused to grant leave to seek judicial review of the impugned decision of the second named respondent. The Court held that since the applicant had failed to challenge the validity of the order in relation to the papers-only appeal at the first instance, the applicant had been now precluded from doing so. The Court held that before lodging the papers-only appeal, the concerns of the applicant had adequately been redressed by the Refugee Applications Commissioner and could not be called into question again.

JUDGMENT of Ms. Justice Stewart delivered on the 25th day of June, 2015

1 This is a telescoped application for leave to seek judicial review, seeking an order of certiorari to quash a decision of the Refugee Appeals Tribunal dated the 31st January, 2011, and remitting the appeal of the applicants for de novo consideration by a separate tribunal member.

BACKGROUND

2 The applicant was born on the 2nd August, 1992, in Mutare, Zimbabwe. She arrived in Ireland on the 6th March, 2002, together with her father and sister for the purpose of visiting their mother, who had arrived here in 2001 on a student visa. The student visa of the applicant's mother expired in May 2003. The applicant and her mother have remained in this jurisdiction illegally since that time. The applicant's father and sister subsequently returned to Zimbabwe but the applicant has remained in Ireland, commenced school and completed her leaving certificate examinations in June 2011. The applicant applied for asylum on the 24th August, 2010, i.e. 8 years and 5 months after her arrival in Ireland. The applicant completed an ASY1 form on the 24th August, 2010, together with the s.8 questionnaire. An interview pursuant to s.11 of the Refugee Act 1996 (as amended) was conducted on the 11th November, 2010. A report issued by the Refugee Applications Commissioner (RAC) in December 2010, in respect of the applicant's application for refugee status. The Commissioner was satisfied that the applicant had not established a well-founded fear of persecution as required by s.2 of the Refugee Act 1996 (as amended). The Commissioner made a recommendation pursuant to s.13(1) of the Refugee Act 1996 (as amended) that the applicant should not be declared a refugee and further recommended that s.13(6)(a) of the said Act should apply to the application. The consequence of the finding pursuant to s.13(6)(a) was that any appeal by the applicant to the Refugee Appeals Tribunal (RAT) would be conducted on a papers-only basis. Section 13(6)(a) states ‘that the application showed either no basis or a minimal basis for the contention that the applicant is a refugee’.

3 A form two notice of appeal against the recommendation of the RAC, pursuant to s.13(5) of the Refugee Act 1996 (as amended), was completed on behalf of the applicant by the Refugee Legal Service. The notice of appeal is dated the 14th January, 2011, and comprises a total of 15 pages. Paragraph 9 of the notice of appeal addresses purported errors in fact and law made by RAC as a result of the s.13(6)(a) finding. The tribunal member, by decision dated the 31st January, 2011, affirmed the recommendation of the RAC. It is against the decision of the RAT that the applicant seeks to bring these proceedings.

EXTENSION OF TIME

4 The decision was dated the 31st January, 2011; however, it appears to be accepted that the decision of the tribunal was received by the applicant on or about the 7th March, 2011. A notice of motion together with a statement of grounds issued on the 19th April, 2011, which was outside the statutory 14-day period applicable for the commencement of such proceedings, as provided by the statute. The applicant at para. 7 of the grounding affidavit says as follows:

‘I say and am advised by, Mr. Brian Burns, that an extension of time is not required for the initiation of the within proceedings but if the position is otherwise I pray this Honourable Court for liberty to file a further affidavit in due course explaining such delay as has occurred.’

5 It should be pointed out at this stage that no further affidavit was filed by the applicant. However, the solicitor on record on behalf of the applicant, Mr. Brian Burns, swore and filed an affidavit on the 19th day of February, 2015, exhibiting the missing documents associated with the applicant's case, as the only document exhibited in the grounding affidavit was the decision of the RAT. Counsel on behalf of the applicant explained in oral submissions before the Court that at the time the affidavit was sworn, a decision of Hogan J. had held that the time limit provided by the statute, i.e. 14 days, was in breach of the principles of equivalence and effectiveness pursuant to the Procedures Directive ( Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status) [ T.D. & ors. v. Minister for Justice, Equality and Law Reform & ors. [2011] IEHC 37]. Subsequent to the proposed issuing of these proceedings, the decision of Hogan J. was appealed to the Supreme Court and the decision was overturned and so the 14-day time limit remained applicable at the time of the commencement of these proceedings [ T.D. & ors. v. Minister for Justice [2014] IESC 29]. Counsel for the respondents pointed out that no further explanation had been offered to the Court by way of an affidavit from the applicant in respect of the delay as was intimated would be forthcoming in para.7 of the original grounding affidavit. However, given the unfortunate, lengthy time delays that are involved in the listing of proceedings of this nature before the Court to date, I would not be satisfied to dismiss the proceedings on a delay point at this juncture. However, that is not to be taken as excusing the applicants from putting good and sufficient reasons on affidavit before the Court in order to substantiate an extension of time. In the circumstances, I am satisfied to accept the explanation offered by counsel and the averment at para.7 of the grounding affidavit and, in the circumstances of this particular case, I am satisfied to extend time within which to bring the proceedings.

SUBMISSIONS

6 There are six grounds set out in the statement of grounds at para.(e) thereof but at the hearing before the Court only the first ground was being proceeded with, which states as follows:

‘The Applicant's claim for declaration of refugee status under s.17 (1) of the Refugee Act 1996 (as amended) has not been lawfully determined by means of a procedure which complies with the minimum standards required to be met by Council Directive 2005/85/EC of 1st December, 2005 in that the said procedure deprives the applicant of an effective remedy against the first instance determination of her application for asylum before a court or a tribunal in compliance with the requirements of Ch. V of the said Directive. Accordingly the decision of the second named Respondent was arrived at ultra vires and is unlawful and the first Respondent thereafter lacked the jurisdiction to refuse to grant refugee status to the Applicant in circumstances where no lawful first instance asylum decision was made in respect of the Applicant.’

7 This is a very broad statement of grounds as indeed were the remainder of grounds pleaded but which were not pursued at the hearing before the Court. In written submissions, (undated) February 2015, the applicant advances the case being relied upon at the hearing. The applicant was relying on the decision of Cooke J. in S.U.N. (South Africa) v. Refugee Applications Commissioner & ors. [2010] IEHC 338. That decision arises out of a complaint following on from the recommendation of the RAC and the finding pursuant to s.13(6)(e) of the Refugee Act 1996 (as amended) which, it is alleged, deprived the applicant of an opportunity to engage in an oral hearing of her appeal despite the negative credibility findings made. The applicant herein asserted that the finding made by the commissioner pursuant to s.13(6)(a) resulted in the appeal to the second respondent being less than an effective remedy under article 39 of the Procedures Directive. Therefore the applicant's case, in...