V (G) v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Herbert |
| Judgment Date | 07 December 2010 |
| Neutral Citation | [2010] IEHC 439 |
| Court | High Court |
| Date | 07 December 2010 |
[2010] IEHC 439
THE HIGH COURT
BETWEEN
AND
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)
REFUGEE ACT 1996 S13(5)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(A)
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(B)
REFUGEE ACT 1996 S2
GOODWIN-GILL REFUGEE IN INTERNATIONAL LAW 2ED OXFORD UNIVERSITY PRESS
HATHAWAY THE LAW OF REFUGEE STATUS 1991
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 53
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 54
UNHCR HANDBOOK ON PROCEDURES & CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 55
A (J) v REFUGEE APPEALS TRIBUNAL UNREP HEDIGAN 15.10.2008 2008/1/33 2008 IEHC 310
PPA v REFUGEE APPEALS TRIBUNAL 2007 4 IR 94
T (G) v REFUGEE APPEALS TRIBUNAL UNREP PEART 27.7.2007 2007/57/12325 2007 IEHC 287
IMMIGRATION LAW
Leave
Asylum - Judicial review - Outside time limit - Extension - Whether good and sufficient reason to extend time - Court entitled to and must have regard to general merits of application - 'Substantial grounds' - Whether substantial grounds for contending that respondent erred in law in concluding that discrimination in Croatia did not amount to 'persecution' - Whether substantial grounds for contending that respondent failed to have any or any proper regard to, and failed to offer any reason for distinguishing, three previous decisions of the respondent - Whether substantial grounds for concluding that respondent made errors of fact so material to its conclusions as to render its decision invalid or unsatisfactory - (A)J v Refugee Appeals Tribunal [2008] IEHC 310 (Unrep, Hedigan J, 15/10/2008); PPA v Refugee Appeals Tribunal [2006] IESC 53, [2007] 4 IR 94; T(G) v Minister for Justice, Equality and Law Reform [2007] IEHC 287 (Unrep, Peart J, 27/7/2007) considered - Refugee Act 1996 (No 17), s 2 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Time extended and leave granted (2008/1101JR - Herbert J - 7/12/2010) [2010] IEHC 439
V(G) v Refugee Appeals Tribunal
Facts The applicants were married to each other and the wife was an ethnic Croat and the husband was an ethnic Serb. They sought leave to apply for an order of certiorari by way of judicial review setting aside the decisions of the first named respondent refusing to grant them refugee status. The applicants had claimed a well founded fear of persecution if they returned to Croatia due to their mixed ethnic marriage. However, the application on behalf of the husband was made seven days outside the time limit and the application on behalf of the wife was made two days outside the time limit. Consequently, the applicants sought an extension of time for the making of their application for leave. The applicant sought leave on three grounds: namely 1) that the conclusion of the member of the first named respondent that the country of origin information relating to discrimination in Croatia against ethnic Serbs and against the partners in marriages between ethnic Serbs and ethnic Croats did not amount to "persecution" as defined by s. 2 of the Refugee Act 1996 and the European Union (Eligibility for Protection) Regulations 2006, was irrational, unreasonable and contrary to common sense. 2) The member of the first named respondent failed to have regard to and, failed to offer any reason for distinguishing three previous Decisions of the first named respondent where refugee status was recommended for partners in marriages between ethnic Serbs and ethnic Croats, whose country of origin was Croatia. 3) The member of the first named respondent in her Decision made six material errors of fact which were such both individually and collectively as to render her Decision invalid or unsatisfactory.
Held by Herbert J. in granting leave to the applicant: That the applicants established substantial grounds for contending that the member of the first named respondent erred in law in concluding that the facts as found by her in the context of the country of origin information did not amount to "persecution" within the meaning of s. 2 of the Act of 1996 and the 2006 Regulations. The applicants also showed substantial grounds for contending that the total absence of any reference whatsoever to any of the previous decisions of the first named respondent, which were referred to her by the applicants, was sufficient evidence to show that those cases were overlooked by the member of the first named respondent. Consequently, the applicants established substantial grounds for contending that the member of the first named respondent failed to have or any proper regard to the decisions referred to her and failed to offer any sufficient reason for disregarding or distinguishing those decisions. Finally, having regard to the foregoing conclusions, there were good and sufficient reasons for extending the period to enable the application for leave to be made.
Reporter: L.O'S.
JUDGMENT of Mr. Justice Herbert delivered the 7th day of December 2010
This is and application, pursuant to the provisions of s. 5(1) of the Illegal Immigrants (Trafficking) Act 2000, for leave to seek an order of certiorari by way of judicial review setting aside the Decisions of the first named respondent made on the 11 th September, 2008 and 15 th September, 2008.
It is accepted that the applicants were married to each other on the 23 rd December, 1989. It is accepted that the wife is an ethnic Croat and that the husband is an ethnic Serb. It is accepted that on the 13 th December, 1991, because of the fighting between Croats and Serbs in the terrible and unfortunate war which followed the dissolution of the former State of Yugoslavia, they had to flee from their home in Croatia and, seek safety in a Serbian controlled enclave. It is accepted that they remained there until 1998 when they sought refugee status in Serbia, where they remained until March 2005.
On the 6 th March, 2005, they arrived at the borders of this State and immediately sought asylum here. They claimed that they had a well founded fear of persecution if they returned to Croatia because the husband was an ethnic Serb and because theirs was a marriage crossing the ethnic divide between Croats and Serbs. In April 2005, the Refugee Applications Commissioner recommended that their application for refugee status should be refused by the second named respondent.
The applicants appealed from these decisions of the Refugee Applications Commissioner to the first named respondent. By reason of the provisions of s. 13(5) of the Refugee Act 1996, (as amended), the appeals were determined on foot of written submissions only. Following the commencement of earlier proceedings seeking judicial review, the initial Decisions of the first named respondent refusing the appeals and confirming the decisions of the Refugee Applications Commissioner was vacated by this Court by consent of the parties. On the 21 st December, 2007, both appeals were remitted for reconsideration by a different Member of the first named respondent. By a Decision dated the 11 th September, 2008, in the case of the husband and, a Decision dated the 15 th September, 2008, in the case of the wife, the first named respondent refused the appeals and recommended that the decisions of the Refugee Applications Commissioner be confirmed.
The initial applications seeking leave to apply for judicial review were filed in this Court on the 3 rd October, 2008. This means that the application on behalf of the husband was made seven days beyond and, the application on behalf of the wife two days outside the limit of fourteen days fixed by the provisions of s. 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000, for the making of such applications.
Section 5(2)(a) of the said Act of 2000, conferred on this Court power to extend the time for the making of such applications provided that it considers that there is good an sufficient reason so to do.
I agree with Ms. McGrath, counsel for the respondents, that the proffered explanation for the delay in making these applications, that is, that the solicitors representing the applicants wished to retain the services of the same counsel who had successfully represented the applicants in the previous application for judicial review, even though that counsel was at the material time absent from the State attending a Legal Conference in another Member State of the European Union, does not amount to a good and sufficient reason for extending the time. The wish of the applicant or his solicitors to engage or to re-engage the services of a particular member or members of the Legal Profession or, the availability or convenience of such person or persons, cannot be a sufficient reason for this Court to extend the time. To do so, would be to act in disregard of the clear intention of the Legislature, expressed by the very limited time allowed by the provisions of s. 5(2)(a) of the said Act 2000, for the making of these applications, that they must be made with the utmost dispatch. It would be irrational, unreasonable and wholly disproportionate to hold that the freedom to choose a particular legal representative or representatives and their availability at the material time should outweigh the considerations of national sovereignty, general public good and the integrity of the Asylum System, which underlie this particularly stringent limitation period.
However, the matter does not end there. This Court is entitled to and, does, take account of the shortness generally even if not relatively by reference to the statutory time limit, of the delay of seven days...
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