T.R.T. v Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 04 May 2007
• Neutral Citation: [2007] IEHC 168
• Court: High Court
• Date: 04 May 2007

[2007] IEHC 168

The high court

[No. 1123 JR/2005]

T (TR) v Minister for Justice & Ors

Judicial Review

Between

T. R. T.

Applicant

And

the Minister for Justice, Equality and Law Reform the Refugee Applications Commissioner The Refugee Appeals Tribunal Attorney General, and Ireland

Respondents

And

HUMAN RIGHTS COMMISSION

Notice Party

Abstract:

Immigration - Asylum - Judicial review - Deportation - Extension of time - Whether the decision of the second named respondent merged into the decision of the third named respondent thereby precluding the applicant from seeking judicial review of that decision.

The applicant sought leave to challenge by way of judicial review the decisions of the second and third named respondents refusing to grant her refugee status. The applicant also sought leave to challenge the decision of the first named respondent to deport her. The applicant was out of time by almost twelve months in relation to the decision of the second named respondent and by eleven months in relation to the third named respondent’s decision. The applicant submitted that there were special circumstances, which entitled her to challenge the decisions of the second and third named respondents, namely: her diagnosis of depression, her history of trauma, her age, the lapse of time between the notification of the second named respondent’s decisions and the determination of her appeal and she alleged that the third named respondent did not rely on significant findings of the second named respondent but notwithstanding, affirmed the second named respondent’s recommendation to refuse the applicant a declaration of refugee status.

Held by Dunne J. in refusing to grant leave in relation to the decisions of the second and third named respondents: That there was no basis to permit the court to interfere with the first instance decision (the second named respondent’s decisions) in circumstances where the appeal had been determined in respect of that decision. There were no special circumstances such as would permit the court to exercise its discretion to grant leave to apply for judicial review in respect of the second named respondent’s decision. Furthermore, the applicant failed to establish the necessary grounds to be granted leave to apply for judicial review of the decision of the third named respondent.

Obiter There was no explanation for the delay in bringing this application and accordingly an extension of time could not be granted.

Reporter: L.O’S.

1 Judgment by Ms. Justice Dunne delivered on the 4th day of May 2007

2 This judgment is circulated in redacted form to avoid identification of the parties

Factual Background

3 The applicant herein was born in N. She states that she fled N. in fear of persecution. She stated that she was her husband's sixth wife and bore him his first son I. She said that her husband had been a member of a secret sect. Following the death of her husband, the sect wished to induct her son into the sect and she did not permit this and was threatened and assaulted as a result. She also faced threats from the other wives and children of her late husband, as her son would inherit his father's property. Her son ultimately came to Ireland in 1998 having left N. to escape persecution from the sect and his father's extended family. His application for asylum was rejected and he was deported back to N. He left N. again and went to G. He was also deported back to N. from G. Following his deportation from G. he died apparently in hospital as a result of malaria with other complications. After his death she stated that, sect members demanded his body and she refused to indicate where her son was buried. She was threatened in this regard and she states that she then fled N. She came to Ireland where her daughter resides with her husband and five children. She now resides with them. She states that she would have no protection from persecution in N. The applicant arrived in this jurisdiction on 14th September 2004.

Chronology

4 It would be useful at this point to set out the chronology of events in respect of the applicant.

5 14th September 2004, - arrived in Ireland. Claimed asylum. Informed that her application would be prioritised.

6 24th September 2004, questionnaire completed.

7 13th October 2004, interview.

8 19th October 2004, section 13 report completed on behalf of the Refugee Applications Commissioner.

9 23rd October 2004, applicant received notification that the Refugee Applications Commissioner was recommending that she should not be declared to be a refugee.

10 27th October 2004, notice of appeal dated 26th October 2004 was submitted to the Refugee Appeals Tribunal.

11 10th November 2004, decision of Tribunal made.

12 28th November 2004, the applicant received notification of the decision of the Tribunal.

13 10th December 2004, the first named respondent indicated his refusal to make a declaration of refugee status and that he intended to make a deportation order. Submissions were sought for leave to remain.

14 22nd December 2004, submissions made on behalf of the applicant.

15 6th September 2005, deportation order made.

16 25th September 2005, applicant received notification of making of deportation order.

17 10th October 2005, notice of motion issued seeking leave to apply for judicial review in respect of the decisions of the second named respondent and the third named respondent and the first named respondent.

18 It will be immediately apparent that two issues called to be considered at the outset. The first of these issues is the entitlement to challenge the decisions of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. The second issue that arises is the need to apply for an extension of time to challenge the decisions of the Refugee Applications Commissioner and the Refugee Appeals Tribunal. In the case of the former an extension of time of almost of twelve months is required and in the case of the Refugee Appeals Tribunal, the extension of time required is in the order of eleven months approximately. It is also the case that a short extension of time is required for the challenge in relation to the decision of the first named respondent herein. However it is not necessary for me to consider that question at this point in time as it was clear that, if the applicant was granted leave to apply for judicial review in respect of the decisions of the Refugee Applications Commissioner and the Refugee Appeals Tribunal, it would not be necessary to consider the decision of the Minister at this stage.

The right to challenge the decision of the second named respondent and the third named respondent.

19 An issue that has to be considered in relation of this case is the question as to whether the decision of the second named respondent has merged into the decision of the third named respondent, thus precluding the applicant from seeking judicial review of that decision. On this issue, reliance was placed by counsel on behalf of the applicant on the decision of the High Court in the case of Adan v. Refugee Applications Commissioner and the Refugee Appeals Tribunal (Unreported, Finlay Geoghegan J., 23rd February 2007). Counsel for the respondents also placed reliance on that decision. In the course of her decision in that case, Finlay Geoghegan J. considered at length the issue of "merger". In other words to what extent does a decision of the Refugee Appeals Tribunal oust, supplant or replace the decision of the Office of Refugee Applications Commissioner such that the decision of the Office of Refugee Applications Commissioner is no longer amenable to judicial review. In the course of her judgment Finlay Geoghegan J. considered the decisions in the cases of Savin v. The Minister for Justice, Equality and Law Reform and Others, (Unreported, High Court, Smyth J., 7th May 2002), G.K. v. The Minister for Justice [2002] 2 I.R. 418, Judgment of Hardiman J., Okungbowa v. Refugee Appeals Tribunal and Others (Unreported, High Court, MacMenamin J.), Croitroriu v. Refugee Appeals Tribunal and Others (Unreported, High Court, MacMenamin J., 21st June 2005), and Rusu v. Refugee Applications Commissioner and Others (Unreported, High Court, Hanna J. 26th May 2006). She then concluded as follows at p. 23 of her judgment:-

"Having carefully considered each of the above High Court decisions I have concluded on the facts of this application that notwithstanding the decision of the Tribunal there remains an extant decision of the Commissioner which as a matter of law could be the subject of an order of certiorari. My reasons for so concluding are as follows.

Section 13(1) of the Act of 1996 envisages that where the Commissioner carries out an investigation under s. 11, she will then prepare a report in writing and prescribes that the report shall refer to certain matters and also 'shall set out the findings of the Commissioner together with his or her recommendation whether the applicant concerned should or, as the case may be, should not be declared to be a refugee'. The recommendation of the Commissioner is based upon the findings set out in the report. The recommendation is an integral and necessary part of the report of the Commissioner under section 13(1). It is not a decision which in the statutory scheme exists independently of the report of the Commissioner.

Further, as a matter of commonsense, on the facts of this application it cannot be suggested that the decision of the Commissioner which is sought to be challenged is confined to the recommendation, included in the report and that the applicant is not seeking to challenge the balance of the report issued by the Commissioner under section 13."

20 She then went on to consider in some detail the decisions in the case of Stefan...