High Court dismisses judicial review application for extension of time due to lack of substantial grounds and failure to exhaust statutory remedies.

Neutral Citation Number: [2008] IEHC 440

THE HIGH COURT

JUDICIAL REVIEW

2008 1096 JR

BETWEEN

J.A. AND D.A. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND J. A.)

APPLICANTS

AND

THE REFUGEE APPLICATIONS COMMISSIONER,

THE REFUGEE APPEALS TRIBUNAL

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,

THE ATTORNEY GENERAL, IRELAND

RESPONDENTS

AND

THE HUMAN RIGHTS COMMISSION

NOTICE PARTY

Judgment of Ms. Justice Irvine delivered on the 3rd day of December, 2008

Factual Background

1. J.A., the first named applicant, is a national of Nigeria. She is the mother of the second named applicant D.A. J.A. contends that

she fled Nigeria, having been accused of witchcraft, and arrived in Ireland on 8th November, 2005. D.A. was born in Ireland two days

later on 10th November, 2005.

2. J.A. applied for refugee status and, accordingly, attended at the office of the first named respondent (“the Commissioner”) for

interview on 3rd March, 2006. At the commencement of her interview, J.A. was asked if she wished to have her son, D.A., included in

her claim. The interview notes record as follows:-

“Break to enable applicant to query and organise registration of [D.] 10.20 – 10.50. Interpreter stayed with applicant

while her options were explained. Applicant chose to have [D.] attached to her claim.”

3. J.A. thereafter signed a report of the s. 11 interview which acknowledged her application to have D.A. included under her own

application for refugee status. The report also suggests at page three that she was asked whether she had any issues she wished to

raise in relation to her son, D.A., to which she gave a negative response. The interview was conducted by Ms. Maureen O’Connor as

an officer of the Commissioner.

4. By letter dated 20th March, 2006, J.A. was advised that the Commissioner was recommending that neither she nor her dependent

son be declared a refugee.

5. The report pursuant to s. 13(1) of the Refugee Act 1996 (as amended) (“the Act of 1996”), refers at the outset to the first named

applicant and states that the report covers, in addition, the application of the second named applicant who is also named. The report

sets out at paragraph 3 the persecution claimed in the following terms:-

“3.1 The applicant alleges that her life was threatened by members of O’odua Peoples Congress (OPC), and also by

members of her husband’s family in Lagos who are in the OPC. The applicant alleges that her brother-in-law died in

August, 2005, and that they accused her of killing him by poison and/or witchcraft.”

6. In relation to persecution, the report also notes the following allegation made by the first named applicant namely:-

“4.6 The applicant alleges that her alleged brother-in-law died in October, 2005. The applicant alleges that members of

the OPC threatened to kill her and her unborn (at that time) child because they blamed her for her brother-in-law’s death

(question 21 of application questionnaire). The applicant alleges that her in-laws called her a witch and said she had

poisoned her brother-in-law (Question 58 pp. 19/20 of Interview Notes).”

7. The s. 13 report was signed by Mr. Phelim Cassidy who had not conducted the s. 11 interview. At para. 4.11 of his report, he

referred to the fact that:-

“There are very serious doubts regarding the credibility of the applicant and the applicant’s claim overall is very

unconvincing. The applicant did not present any credible evidence that she and her child have a well founded fear of

persecution on any grounds as defined by the Geneva Convention if she were to return to Nigeria. The basis for

contention that the applicant is a refugee is very minimal.”

8. The report concluded that the application should be considered in accordance with s. 13(6)(a) of the Refugee Act 1996, as

amended, on the basis that the applicant had showed either no basis or a minimal basis for the contention that she was entitled to be

considered a refugee. He expressed himself satisfied that the applicant had failed to establish a well founded fear of persecution in

accordance with s. 2 of the Act of 1996 (as amended), and recommended that she should not be declared a refugee.

9. A notice of appeal was submitted by the Refugee Legal Services (RLS) to the Refugee Appeals Tribunal (“the Tribunal”). The letter,

enclosing the notice of appeal dated 11th April, 2006, stated that the Refugee Legal Service had received instructions from J.A. that

she did not wish to have the appeal scheduled before Mr. James Nicholson. Notwithstanding this request, the applicant’s appeal was

duly determined by Mr. Nicholson who, in his report dated 25th June, 2007, advised that he had considered all relevant

documentation. The letter enclosing the decision of the Tribunal referred to both the first and second named applicant and reported

the decision of the Tribunal which was to the effect that neither should be declared refugees. The decision of the Tribunal was

directed on its face and in its title to both the first and second named applicants.

10. In the report of the Tribunal member, the applicants’ claim for refugee status is recorded as having being based upon the fear of

persecution arising from the accusation made against her by her husband’s family and members of the OPC that she practiced

witchcraft. The Tribunal went on to conclude that notwithstanding the submission furnished by the RLS, the applicants had not

discharged the burden of proof to justify a determination that the recommendation of the Commissioner should be overturned.

11. By letter dated 17th August, 2007, J.A. was advised of the Minister’s decision to make a deportation order in relation to herself

and D.A. Accordingly, J.A. was invited to submit representations for leave to remain in the State and also to seek subsidiary

protection. Representations seeking humanitarian leave to remain in the State were submitted to the Minister by letters dated 3rd

September and 30th October, 2007. The first of these letters expressed disappointment with the fact that J.A’s appeal had been

dealt with by Mr. Nicholson on behalf of the Tribunal. The letter advised the department that J.A. had specifically requested that Mr.

Nicholson would not hear her appeal and requested the department to note that Mr. Nicholson was the subject matter of High Court

proceedings wherein bias was alleged against him by a number of asylum seekers.

12. By application dated 4th September, 2007, the first named applicant sought subsidiary protection pursuant to the European

Communities (Eligibility for Protection) Regulations 2006. By letter dated 8th July, 2008, addressed to both J.A. and D.A., the first

named applicant was advised that her application, including that of D.A. for subsidiary protection, had been refused. The letter

enclosed a copy of the report setting out the Minister’s determination. The report concluded that J.A. and D.A. had not shown

substantial grounds for believing that they were at risk of suffering serious harm if returned to Nigeria.

13. On 18th September, 2008, the RLS forwarded the applicant’s file to Séan Mulvihill and Company, solicitors. By letter 22nd

September, 2008, J.A’s new solicitor, Mr. Mulvihill, submitted fresh representations to the Department of Justice, Equality and Law

Reform as to why J.A. should not be deported. By letter dated 24th September, 2008, and received on 27th September, 2008, J.A.

was notified that deportation orders relating to both herself and the second named applicant had been made. The said letter enclosed

the deportation orders in respect of both of the applicants which are dated 9th September, 2008. The deportation orders were stated

to be based upon the fact that J.A. and D.A. were not eligible to remain in the State by reason of the provisions of s. 3(2)(f) of the

Immigration Act 1999, whereby their applications for asylum had been refused. Further, the letter enclosed a copy of the Minister’s

considerations pursuant to s. 3 of the Immigration Act 1999 (as amended), and s. 5 of the Act of 1996, in relation to both J.A. and

D.A.

14. Finally, in an affidavit sworn on 19th November, 2008, Mr. Michael Flynn, on behalf of the respondents, advised that the

applicants’ solicitor’s additional representations in support of her application for leave to remain temporarily in the State had caused

her case to be re-examined, but as no factors were found that would justify granting her leave to remain in the State, the

deportation orders were accordingly affirmed.

Claim on behalf of the second named applicant

15. Leave is sought by the second named applicant to seek:-

(i) An order of certiorari to quash the decision of the Commissioner making a recommendation that he not be declared a

refugee;

(ii) An order of certiorari to quash the decision of the Tribunal which affirmed the recommendation of the Commissioner;

(iii) An order of certiorari seeking to quash the decision of the third named respondent (“the Minister”) in respect of the

deportation order made referable to him.

(iv) An order of certiorari quashing the decision of the Minister to refuse him subsidiary protection; and

(v) A number of ancillary reliefs by way of injunction and declaration which are set out in the statement of grounds.

Claim on behalf of the first named applicant

16. Leave is sought by the first named applicant to seek:-

(i) an order of certiorari to quash the decision of the Tribunal which affirmed the recommendation of the Commissioner

that she should not be declared a refugee;

(ii) an order of certiorari to quash the order made by the Minister that she should be deported;

(iii) An order of certiorari to quash the decision of the Minister refusing her subsidiary protection;

(iv) A number of ancillary reliefs including reliefs by way of injunction and declaration as particularised in the statement of

grounds.

In addition to the foregoing reliefs, a declaration is also sought that ss. 13(5) and 13(6) of the Refugee Act 1996 (as amended), are

incompatible with the provisions of the Constitution, although this matter was not pursued in any meaningful way in the course of the

oral hearing. Certainly, it was not pursued to the extent that substantial grounds for challenging the constitutionality of that section

were made out.

Grounds for the relief sought

17. I will now deal with the principal grounds for the relief sought by each of the applicants as advanced at the oral hearing as

opposed to those either pleaded or contained in the written submissions. The grounds relied upon by the second named applicant in

support of his claim can briefly be summarised as follows:-

(i) The Commissioner and/or the Tribunal failed to separately consider or make findings referable to him as opposed to J.A.

Accordingly, it was alleged that there was no valid decision made by the Commissioner and/or the Tribunal regarding the

second named applicant’s status having regard to the provisions of s. 2 of the Act of 1996.

(ii) That the decision of the Commissioner was unlawful as it was allegedly largely founded on adverse credibility findings

made in relation to J.A. and was made by an authorised officer other than the officer who conducted the interview under

s.11 of the Act of 1996.

18. In relation to both applicants it was contended:-

(i) That the rules of natural justice and fair procedures were breached by the Tribunal by virtue of the fact that their

appeals were determined by Mr. James Nicholson whom the first named applicant had specifically requested would not

determine their appeal. Reliance was placed upon s. 15(2) of the Act of 1996, and in particular s. 14 of the Second

Schedule thereto.

(ii) Given that the asylum status of J.A. had not been validly determined by the Commissioner nor the application of D.A.

lawfully determined by the Commissioner or the Tribunal that the Minister allegedly did not have the power to make a

deportation order based upon the provisions of s. 3(2)(f) of the Immigration Act 1999.

(iii) That the Minister acted in breach of the rules of natural justice and fair procedures in failing to consider the issue of

bias brought to his attention at the time he was considering matters pursuant to s. 3 of the Immigration Act 1999.

Extension of time

19. In order for either applicant to obtain leave of the Court to pursue the reliefs claimed in these proceedings, both applicants

require an extension of time for such purposes. The extension of time sought by D.A. in respect of the decision of the Commissioner

dated 13th March, 2006, is approximately two and a half years. The extension of time required in respect of the decision of the

Tribunal, which relates to both applicants, is approximately fifteen months. In addition, the claim of the second named applicant to

the effect that the decision of the Commissioner is unlawful by reason of the fact that it was made by an authorised officer who had

not conducted the interview, was not pleaded in the statement of grounds and, accordingly, the second named applicant needs an

extension of time to permit of the amendment of those grounds to be included in this claim. The respondents strongly resist the

applications for the relevant extensions of time.

The relevant time limits and the factors to be considered

20. The Illegal Immigrants (Trafficking) Act 2000, provides the relevant time limits for those wishing to apply for judicial review of any

decision made under the provisions of the Refugee Act 1996, and the Immigration Act 1999. Section 5 provides that such an

application must be made within the period of fourteen days, commencing the date upon which a person is notified of the decision or

order in question unless the High Court considers that there is “good and sufficient reason” for extending the period within which the

application is to be made.

In considering whether or not the Court should extend the time for leave in the present case, the Court considers the following

matters to be of significance, namely:-

(1) The relevant statutory time limit and the extent of the delay by the applicants in the commencement of the within

proceedings.

(2) Whether or not the applicants were in receipt of legal advice over all or any part of the period in respect of which the

extension of time is sought and whether such legal advice was available in respect of the decisions which it is hoped to

impugn.

(3) The reasons for the delay advanced.

(4) The strength of the potential claims to be brought by each applicant should the extension of time to maintain the

proceedings be permitted.

(5) The extent of which an injustice might be perpetrated by failing to grant the extension of time.

(1) The statutory time limits and the extent of the delay in the commencement of the within proceedings

21. The Supreme Court, considering the constitutionality of the provisions of s. 5 in The Illegal Immigrants (Trafficking) Bill, 1999

[2000] 2 I.R. 360, stated that it was of the view that the State had a legitimate interest in prescribing procedural rules calculated to

ensure and promote an early completion of judicial review proceedings of any administrative decisions made in the course of the

asylum process. For the purpose of achieving such an objective, the legislature fixed the limitation period of fourteen days as provided

for in section 5. This time limit was described by Peart J. in F.A. & B.A. (a Minor suing by her Mother and Next Friend F.A.) v. the

Refugee Appeals Tribunal & Ors [2007] I.E.H.C. 290, in the following manner:-

“The period of fourteen days is a very short time and this must be taken as indicating an intention on the part of the

Oireachtas that applicants must act with great dispatch when considering whether or not to challenge a decision by way

of judicial review, this being part of the legitimate objective for a democratic State to effectively control and regulate

entry to the State by nationals of other countries.”

22. The Supreme Court recognised in the course of its deliberations in The Illegal Immigrants (Trafficking) Bill 1999, that there were

likely to be cases where, for a range of reasons, persons, through no fault of their own, might be unable to apply for leave to seek

judicial review within the limitation period. Hence, the court has a discretion to extend the time for such an application where “good

and sufficient reason” is shown for doing so. This provision, the Supreme Court concluded, was wide enough to avoid any injustice

that might arise. Accordingly, the court did not consider the limitation period so unreasonable as to justify declaring the section

unconstitutional. The court instanced the possibility of those, who through no fault of their own, might find themselves unable to

obtain legal advice and indicated that such circumstances might constitute “good reason” for extending the time limit within which to

apply for judicial review. The court cited the decision in Reg. v. Stratford-on-Avon D.C., Exp. Jackson [1985] 1 W.L.R. 1319, where at

p. 1324 the court stated that:-

"it is a perfectly legitimate excuse for delay to be able to say that the delay is entirely due to the fact that it takes a

certain time for a certificate to be obtained from the legal aid authorities.”

23. That was a case where despite proper endeavours on the part of the applicant and her legal advisors, a difficulty still arose.

24. The applicants rely principally on the decision of Peart J. in O. v. Refugee Appeals Commissioner & Ors dated 2nd May, 2008. In

that case, the first named applicant was a Nigerian national and the second named applicant was her daughter, both of whom arrived

in the State in January 2005. The first named applicant applied for asylum and requested her daughter to be included within her

application. The first named applicant’s interview pursuant to s. 11 of the Refugee Act 1996, occurred on 15th February, 2005, and

the decision of the Commissioner was dated 28th February, 2005. The Refugee Legal Service was appointed on 15th March, 2005, to

represent the applicant’s interest and a notice of appeal was filed to the Tribunal on 15th March, 2005. The appeal was determined

on 3rd May, 2005, when the Tribunal concluded that neither of the applicants were refugees within the meaning of s. 2 of the Act of

1996. Leave to remain in the country on humanitarian grounds was later refused and the Minister subsequently made deportation

orders in September, 2005. Thereafter, the applicants changed solicitors and their new solicitor wrote to the Commissioner on behalf

of the second named applicant, making a claim for asylum, notwithstanding the earlier decision of February 2005. The Commissioner

rejected the application on the basis that a decision had already been made in relation to the second named applicant’s claim for

refugee status to which response, it was claimed, on the second named applicant’s behalf, that there had been no individual or

reasonable assessment of the second named applicant’s claim for refugee status when the matter was initially determined by the

Commissioner.

25. The first and second named applicants sought leave to apply for judicial review in respect of the decision of the Commissioner and

the Tribunal. The applicants’ notice of motion was dated 12th October, 2005. Peart J. concluded that the first named applicant had

not made out any special circumstances to justify an extension of time to maintain her own proceedings. He then went on to consider

the position of the second named applicant whom he described as being of very tender years and who ought not to be refused an

extension of time simply because the Court was satisfied that her mother did not act in time to seek to challenge decisions which

adversely affected her.

26. For the purposes of determining the application made on behalf of the minor for an extension of time, Peart J. acknowledged the

fact that the principle of family unity operated only in favour of a minor applicant, and concluded that in such circumstances, the

application on behalf of the minor child to extend the time within which to bring judicial review proceedings would have to receive

separate consideration. He went on to take some guidance from the provisions of the Statute of Limitations 1957, as amended, which

gives a great deal of latitude to infants to sue in respect of personal injury outside the normal statutory three year period from the

date of injury. He also referred to the decision in O’Brien v. Keogh [1972] I.R. 144, dealing with the constitutional guarantees provided

for in Article 40.3 of the Constitution. The trial judge then went on to conclude that as a matter of constitutional fairness, and in

recognition of the proper application of the principle of family unity, that an extension of time of some six months ought to be

granted.

27. The extensions of time sought by each of the applicants in the present case are much more significant than that which was

sought in O.. This being so, each of the extensions of time sought are proportionally much larger than those in O. when comparing

them to the extremely short period of time prescribed by the legislature for the maintenance of judicial review proceedings in asylum

cases. The extensions of time sought by each of the applicants in the present case are not the same, and even if they were, I agree

with Peart J. that the applications should, by reason of the principle of family unity and also by reason of the fact that the

circumstances pertinent to each application may differ, be approached separately.

28. I am not, however, completely convinced that the special provisions which provide latitude for infants in relation to a period within

which they may maintain an action for personal injuries, nor the policies behind the relevant legislation, are of much assistance in

providing guidance to the court as to how it should approach the extension of time sought on behalf of the second named applicant

minor in the present case. This is not a case where the second named applicant was, like many children who are injured, entirely

dependent upon his guardian to obtain legal advice to best protect his interests during the relevant limitation period. Neither is he like

the injured child who may require the extended time limits provided for in the Statute of Limitations to permit him to sue for personal

injuries after he attains his maturity, in circumstances where his parents may, for their own protection, have allowed a statutory time

limit to pass while he was in their care and at an age when he could not be expected to have known of his rights. The second named

applicant is a minor who had the benefit of legal advice within the statutory period provided for a challenge to each of the decisions

which he now seeks to quash in a substantive claim. He is not a minor whose rights to refugee status were left to the protection of

his guardian/mother and whose rights may have become compromised on that account. He is indeed the antithesis of the applicant

referred to in Reg. v. Stratford-on-Avon D.C., Exp. Jackson. When the court is seeking to assess whether or not an applicant for an

extension of time has established “good and sufficient reason”, I do not believe that merely because an applicant is an infant, that

such fact, of itself, without other good and sufficient reason, can justify an extension of time over and above that which would be

afforded to an adult in equivalent circumstances where such an infant has had legal representation available to him over the relevant

period.

29. In the course of the present hearing, I was advised by counsel on behalf of the respondents that where an infant is granted leave

to apply for judicial review to seek to quash a decision of the Commissioner and/or the Tribunal and/or a deportation order, the parent

or guardian of that infant will not be deported from the jurisdiction during the currency of the litigation, notwithstanding any

deportation order previously made in respect of the parent. It therefore appears to me that if the court were to adopt a somewhat

“laissez faire” approach to applications made by infants to extend the time for instituting judicial review proceedings challenging

decisions pertaining to their asylum status, there would be no incentive upon those representing minors to commence their judicial

review proceedings until almost the moment of deportation. By adopting such an approach, substantial delays in the finalisation of

asylum applications could be orchestrated and this would frustrate the objective which the legislature set out to achieve when

imposing such a strict time limit upon those who wish to challenge any decision made within the legislative framework.

30. For the aforementioned reasons, I am of the view that statutory time limits should be reasonably strictly applied in circumstances

where a minor has had legal representation available to him/her over the period in respect of which the extension of time is sought. I

further agree with Peart J. that separate consideration should be given to the position of a minor who seeks an extension of time to

challenge a decision within the asylum process, given that the facts which pertain to that minor’s application may differ from those of

his/her parent. To approach the extension of time sought in this way is, as was advised by Peart J. in Ojuade, in accordance with the

principles of family unity.

Legal representation

31. As already stated, the applicants in these proceedings were represented by the RLS following the rejection by the Commissioner

of their applications for refugee status. There is ample authority to suggest that an extension of time should not be granted merely to

allow new lawyers to take a different view as to the legality of some decision already considered by their predecessors. In this regard,

the decision of Finlay Geoghegan J. in Muresan v. Minister for Justice [2004] 2 I.L.R.M. 364. is of significance. At p. 373 she stated

as follows:-

“It is inevitable that different counsel will take a different view of the same case. It appears to me that if the courts were

to permit an extension of the period provided for under s. 5(2) of the Act of 2000 simply upon the grounds that a new

counsel had come into a case and had taken a view that a differing and additional claim on new and distinct grounds

should be made that this would defeat the legislative intent as expressed in s. 5(2) of the Act of 2000. It may be that on

certain facts the clear oversight or errors by lawyers acting for an applicant may amount to a good and sufficient reason

for extending the period under s. 5(2). There was no such clear error in this case.”

32. Applying this sentiment to the facts of the present case, I conclude that it would not be good law to permit an extension of time

which is effectively based upon a fresh legal view of decisions which were considered by the applicants’ previous legal advisors. To do

so would lead to an open ended right to maintain judicial review proceedings.

33. In the present case, the legal personnel who represented the applicants over the period in respect of which the extension of time

is sought were specialist solicitors who, it must be implied, had an unparalleled knowledge of the statutory framework pertaining to

asylum seekers. The RLS are intimately familiar with the jurisprudence of the courts in relation to issues of natural justice and fair

procedures and are further fully conversant with the limit limits and relevant case law referable to all asylum issues.

34. In circumstances where an applicant for an extension of time has had the benefit of legal representation from the RLS at the time

of the decision which they wished to challenge, it is difficult to envisage how applicants would be in a position to establish the “good

and sufficient reason” required by s. 5 (2) of the Act of 2000. Perhaps an applicant could show that, through no fault of their own,

some critically important fact or material had not been made available to the RLS, thus providing the “good and sufficient reason” to

justify the extension of time. The only averment made by the first named applicant on her own behalf to establish good and sufficient

reason for an extension of time is to found at para. 15 of her affidavit where she states as follows:-

“15. I say that I was never informed of any grounds upon which the within decisions could be challenged, or at least I

failed to appreciate and understand what may have been stated to me.”

35. The above statement on the part of the first named applicant does not amount to a denial of the receipt by her of legal advice

pertaining to the possibility of challenging, on her own behalf or on behalf of her son, the decisions of the Commissioner, the Tribunal

and/or the Minister. Certainly, insofar as the first named applicant is concerned, that averment does not convince me that any

grounds have been advanced by her to support her extension of time. I believe that her statement set out above is consistent with

the court inferring that she was informed of the avenues opened to her. Hedigan J. in B.N.N. v. Minister for Justice, Equality and Law

Reform & Refugee Applications Commissioner [2008] I.E.H.C 308, approached an averment much the same as that made by the first

named applicant in this case by advising as follows at para. 31:-

“I have not found convincing any of the grounds advanced by the applicant in respect of the extension of time. The

applicant was represented at the time by the RLS and the Court may infer that she was informed of the avenues open to

her. Presumably, her then legal advisors took the view that the correct way for her to proceed in the case was by way of

appeal to the Refugee Appeals Tribunal (‘RAT’), and this they did on her behalf.”

36. Hedigan J. also commented upon the fact that another avenue open to the first named applicant in that case was to seek to

have an affidavit sworn by her formal legal advisor in the RLS corroborating her assertion that she was not aware of the possibility of

taking judicial review proceedings.

37. Insofar as the second named applicant is concerned, no facts have been brought to the court’s attention which would justify his

application for an extension of time being treated differently from that of his mother. All of the facts which were material to their

respective claims for asylum were, or ought to have been, available to the RLS. Further, nothing has emerged in the affidavit of the

first named applicant from which any new facts emerged that would permit the second named applicant make a better case than his

mother in terms of demonstrating “good and sufficient reason” why the period should be extended in his favour.

The strength of the claims to be made by the applicants should the extension of time be granted

38. For any applicant wishing to challenge a decision made within the asylum process, they must establish that they have substantial

grounds to contend that the decision concerned was unlawful. Hence, when an application is sought to be maintained outside the

statutory time limit, the court must, in my view, when considering the application for an extension of time, have significant regard to

the weight of the case which the applicant contends they have to make should the extension of time be granted. In K.A. & A.A. (a

Minor) v. Refugee Applications Commissioner & Ors, [2008] I.E.H.C. 314, Hedigan J. concluded that the court, when exercising its

discretion regarding an extension of time, might be influenced by the court’s assessment of the strength of the grounds advanced for

challenging the relevant decision. Gilligan J. in Bugovski (a Minor) v. Minister for Justice, Equality & Law Reform & Refugee Appeals

Tribunal [2005] I.E.H.C. 78, approached the matter in much the same way when he advised in relation to an extension of time as

follows:-

“However, in the particular circumstances of this case, it is quite clear that the applicant does not have a very strong or

indeed almost unanswerable case, on the merits of the substantive action and there is no question that an obvious or

substantial injustice would be done to him if he was deprived of the opportunity to litigate his claim”

39. For these reasons, I will briefly refer to the various complaints which the applicants would wish to pursue should their respective

extensions of time be granted.

The nature and strength of the claims advanced

40. 1. Mr. O’Halloran, B.L., on behalf of D.A., submitted that the Commissioner and the Tribunal were obliged to conduct a separate

inquiry so as to ascertain what, if any facts, over and above the information supplied by D.A.’s mother, existed to support his

application for refugee status. He submitted, based on the documentation emanating from the Commissioner, that no investigation

was carried out into whether or not there were any facts liable to establish that the second named applicant had a well founded fear

of persecution separate from those facts which supported his mother’s fear of persecution. A similar complaint was made in respect of

the paper appeal to the Tribunal member who raised no additional queries to ascertain whether or not there were facts, separate to

those pertaining to the infant’s mother, which might justify the child’s application for refugee status.

41. Counsel for the respondents submitted that the onus was on the party seeking refugee status to place before the Commissioner

and the Tribunal all of the information upon which they wish to rely. He contended that the documentation emanating from the

Commissioner and the Tribunal established that regard was had to the second named applicant’s claim for refugee status. He relied

upon the fact that the s. 11 interview was stopped to allow the first named applicant complete an application form to have the

second named applicant included in her application. He referred to portions of the s. 13 report in support of this assertion. He further

submitted that, as a matter of law, the onus was not on the Commissioner or the Tribunal to carry out the type of investigation

contended for on behalf of the applicants, and in this respect, he relied upon the decision of Birmingham J. in E (B.V.) & E (O.N.) v.

the Minister for Justice and Refugee Applications Commissioner [2008] I.E.H.C. 230, where at para. 23 he stated as follows:-

“It is also suggested that there was an onus on the ORAC officer to raise issues whether there were any fears in relation

to the minor when her mother was there and in a position to do so on her behalf. This seems to me to be completely

lacking in reality.”

42. On this, the first and most forcefully pursued point on behalf of the second named applicant, the strength of the challenge which

the second named applicant wishes to make to the decision of the Commissioner and/or the Tribunal can, at best, be stated to be

arguable. In my view, the potential challenge does not demonstrate substantial grounds upon which these decisions can be

challenged, principally because the first named applicant in her affidavit does not set out what facts she would have given to the

interviewer or to the Tribunal had she been specifically asked to address the issue of D.A’s fear of persecution should he be returned

to Nigeria. She does not disclose any facts which are different from those which she relied upon herself to support her own

application for refugee status that would have, or could have, altered the decision of the Commissioner, or indeed the Tribunal, in

respect of the second named applicant’s application for refugee status.

43. In any case where an extension of time is sought, there is an onus on the party seeking it to show how that extension of time, if

granted, will effect the ultimate outcome of the proceedings on their merits. Such applicant should be in a position to demonstrate

that justice would not be done if the extension of time was not granted, having regard to the potential strength of his or her case.

The opposite scenario presents in the present case. The second named applicant seeks an extraordinarily lengthy extension of time.

J.A., on his behalf, criticises two decisions made within the statutory asylum process. She seeks to have those decisions quashed so

that her son may recommence his application for refugee status. However, she makes this application without telling the Court what

facts she would have presented to the Commissioner or the Tribunal, had they conducted the type of inquiry she suggests was

mandated. She reveals no facts to demonstrate that there was any likelihood of either the Commissioner or the Tribunal coming to the

view that D.A. could have a well-founded fear of persecution, even if they had conducted further or more extensive inquiries.

44. The facts in the within case are reasonably on all fours with those in E (B.V.) v. E (O.N.) v. Minister for Justice and Refugee

Applications Commissioner [2008] I.E.H.C. 230. In that case, a mother agreed to the incorporation of her daughter’s asylum claim

within her own. No specific fears or concerns for her daughter were advanced by the adult applicant. In her affidavit sworn for the

purposes of the judicial review proceedings, the infant’s mother indicated for the first time that she would have wished to advance

fears in relation to the genital mutilation of her daughter, and also her concern that the Nigerian police would not have been able to

offer effective protection to her daughter, had she been permitted to do so in the course of her interview. In that case, the infant’s

position was significantly stronger than the position of the second named applicant in the present case. The minor applicant’s mother

placed on affidavit those facts which she states she would have brought to the attention of the Commissioner had he conducted a

separate investigation into whether her daughter had a well founded fear of persecution in the event of her returning to Nigeria.

Further, the nature of the persecution feared by her daughter was based on facts which were somewhat different from those which

supported her own fear of persecution in the event of her being returned to Nigeria. In the present case, no such affidavit has been

sworn setting out the basis for the second named applicant having a well founded fear of persecution should he be returned to

Nigeria, and the grounding affidavit does not set out any facts which would support him having a fear based upon matters and

circumstances which were in any way different from those which supported the first named applicant’s claim for refugee status.

45. 2. It is submitted on behalf of the second named applicant that he has substantial grounds to challenge the decision made by the

Commissioner as being unlawful by reason of the fact that the s. 13 determination was made by an officer of the Commissioner’s

Office who did not conduct the s. 11 initial interview. Emphasis is placed upon the fact that the decision was principally based upon a

credibility finding made in respect of the information furnished by the first named applicant.

46. In relation to this point, the applicants rely upon the decision in Konadu v. the Minister for Justice, Equality and Law Reform and

the Refugee Applications Commissioner delivered on 23rd January, 2008, where Charleton J. dealt with the separate statutory

functions of the authorised officer who conducts an interview under s. 11 of the Act of 1996, and the officer who makes the decision

and prepares the s. 13 report having received the relevant material and information from the officer who carried out the s. 11

interview. Charleton J. gave leave to the applicant in that case, stating that it was arguable that where the primary finding made was

of a lack of credibility on the part of the asylum seeker, that such a finding might arguably best be made by the same person who

carried out the interview under s.11 of the Act.

47. The respondents in the present case contend that the facts in Konadu are not comparable to those in the present case. Mr.

Moore, counsel for the respondent, relied upon the decision of Birmingham J. on the substantive hearing in Konadu where he held that

there was a clear distinction to be drawn between a situation where a decision was based on the manner in which evidence was

given and the situation where a finding was reached on the basis of an assessment of the recorded contents of the interview. From a

perusal of the report of Mr. Phelim Cassidy pursuant to s. 13 of the Act dated 24th March, 2006, and the interview notes of the s. 11

interview conducted by Ms. Noreen O’Connor, it cannot be stated that the findings on credibility made by Mr. Cassidy are in any way

related to the manner in which the applicant gave her evidence. The opposite is in fact the case. The applicant’s knowledge of the

locality in which she alleged she had been living was stated to be inconsistent with her declaration that she had lived in that area.

Her knowledge as to the crop grown on the farm upon which she lived for most of her life was stated to be negligible, thus

undermining her credibility as to her origins. The applicant provided no documents relating to her identity, date of birth, place of birth

or habitual residence before she applied for asylum. Finally, a credibility finding was made against the first named applicant arising

from her inability to give details of her journey to Ireland. In this regard, the respondents relied upon the decision of Clarke J. in Imoh

& Ors v. Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform [2005] I.E.H.C. 220, where the learned trial

judge advised that it was open to a Tribunal to reach a credibility finding by applying its own knowledge and commonsense to facts

laid before it.

48. Having regard to the decision of Birmingham J. in Konadu, I am convinced that the credibility findings which support the decision

contained in the s. 13 report had nothing to do with the manner in which the first named applicant presented her case or gave her

evidence to the interviewing officer. This being so, I do not believe that the second named applicant has established substantial

grounds to challenge the decision of the Commissioner merely by reason of the fact that the interview was conducted by an officer

who was different from the one who ultimately prepared the s. 13 report. This being so, it is not necessary for me to decide whether

or not I should extend the time which would be required by the second named applicant to amend his pleadings to include this claim.

49. 3. The next allegedly substantial ground of challenge to the decision of the Tribunal, and upon which both applicants rely, is an

assertion that the Tribunal’s decision was biased or that its decision had been predetermined against the interests of the applicants.

50. On the facts of the present case, it is clear that the first named applicant and her lawyers were of the opinion that their chances

of establishing refugee status on an appeal to this member of the Tribunal would be less than their chances before another Tribunal

member. Accordingly, a letter was written to the Tribunal and a request made that Mr. Nicholson would not determine the applicants’

appeal. Mr. Nicholson, as we know, did determine the applicants’ appeal and it is noteworthy that the applicants, advised by their

solicitors, took no step to contend for any want of validity in that determination. An order of certiorari could have been sought in the

aftermath of the decision of the Tribunal. Alternatively, an order of prohibition might have been sought seeking to restrain Mr.

Nicholson from dealing with the appeal. Neither route was adopted by the applicants. Instead, the applicants’ solicitor, in completing

the application on their behalf for liberty to remain in the State, made reference to the fact that Mr. Nicholson had been asked not to

determine the appeal. The letter pointed to the fact that Mr. Nicholson was the subject of High Court proceedings wherein bias was

being alleged against him.

51. Were it not for the delay on the part of the applicants in instituting the within proceedings, the court would have looked

favourably upon granting leave to the applicants to challenge the decision of the Tribunal based on the aforementioned complaints.

However, the application to maintain this challenge is brought so far beyond the statutory period provided for such a challenge, that

unless this court were convinced that an injustice would be done to the applicants, the claim should not be permitted to proceed at

this remove. I will return to this matter later.

52. 4. Insofar as the balance of the grounds relied upon by the applicants are concerned, they have, to my mind, not established

substantial grounds to contend for any failure on the part of the Minister to adequately perform his statutory functions in relation to

the asylum process. The applicants are, of course, correct that the Minister’s power to make a deportation order is predicated upon a

lawful and valid determination of the applicants’ refugee status, and if it was the case that the decision of the Tribunal was flawed,

then clearly, the deportation orders which are based on the provisions of s. 3(2)(f) of the Immigration Act 1999, are invalid.

53. Having considered all of the issues raised on behalf of the applicants, I must conclude that the only substantial complaint

demonstrated is that which relates to the decision of Mr. Nicholson to determine the applicants’ paper appeal in the face of the letter

from the applicants’ solicitors requesting that he would not do so. In the face of the extraordinary delay in seeking to maintain a

challenge to the decision of the Tribunal which was made in June 2007, I believe the court should not extend the time to permit of

such a challenge unless it is satisfied that its failure to do so would perpetrate a manifest injustice to the parties concerned.

54. I cannot conclude that a failure to afford an extension of time to the applicants in the present case would amount to a manifest

injustice in all of the circumstances. The applicants, through their legal advisors the RLS, clearly had the knowledge requisite to seek

to prohibit Mr. Nicholson determining their appeal if they so wished. Alternatively, the applicants had the benefit of legal advice which

would have justified them applying after his decision to seek to have it quashed. Instead, the approach adopted by the applicants’

legal advisors was to effectively adopt any irregularity in the procedure followed by the Tribunal and then to apply to remain within

this jurisdiction on humanitarian grounds and also to seek subsidiary protection.

55. The applicants’ solicitors did not make any mistake nor were they guilty of an oversight in leaving the decision of the Tribunal

unchallenged. The applicants’ advisors took a deliberate and calculated decision as to how they would approach the applicants’

asylum status in the light of the decision of the Tribunal made in the face of their objections, and this is reflected in their subsequent

application to remain in this country on humanitarian grounds and in her application seeking subsidiary protection. Accordingly,

irrespective of whether or not there is any potential merit in the applicants’ claim that the Tribunal’s decision ought to be quashed by

reason of Mr. Nicholson’s engagement in the teeth of the applicants’ objection, I do not accept that any extension of time should be

permitted to allow this claim to be advanced as to do so would fly in the face of the decision of Finlay Geoghegan J. in Muresan v.

Minister for Justice [2004] 2 I.L.R.M. 364.

Conclusion

56. The judicial review procedure is one which is designed to ensure that cases which are frivolous, vexatious or of no substance

cannot begin. Accordingly, any applicant seeking leave to apply for judicial review must establish that they have substantial grounds

to challenge the decision which is to be the subject matter of intended proceedings. Insofar as asylum law is concerned, the

legislature has provided for a statutory regime to ensure that this type of relief, if applicable, for policy reasons should be sought at

the first available opportunity.

57. Having exhausted their rights within the statutory framework, the applicants have now changed lawyers and seek to undermine a

series of determinations which were made at their request and with their fully advised participation.

58. The first named applicant has not established any good or sufficient reason to justify the court extending the time to permit her

to challenge the decisions of the second and third named respondents herein. Those decisions were made at a time when the court

must assume she had the benefit of full legal advice regarding all remedies available to her. The challenges which she now wishes to

make are not based upon any new facts or any oversight on the part of her previous solicitors. The challenge which she now wishes

to maintain is one which is based upon a new approach by her lawyers to a decision previously considered by her prior legal team.

59. Insofar as the second named applicant is concerned, he has not established good and sufficient reasons for the extension of time

sought to challenge the decisions of the first, second and third named respondents. No separate facts are placed on affidavit which

would justify treating his application for an extension of time as being any more meritorious than that of his mother in circumstances

where, at all times, he had available to him the benefit of the RLS who must be assumed to have considered his position at all

relevant times. Further, the second named applicant has failed to establish any substantial prejudice arising to him by reason of the

court’s failure to extend the time to allow him maintain his challenge. This is so in circumstances where, whilst contending that the

Commissioner and Tribunal should have conducted a separate inquiry into whether or not there were circumstances which would

justify him having a well founded fear of persecution upon facts separate to those of his mother, he does not advise the court of the

existence of any such facts which would have led the Tribunal or the Commissioner to an alternative conclusion, had the same been

unearthed in the course of the investigation contended for.

60. In all of the circumstances, the court will decline the extension of time sought by the first and second named applicants and,

accordingly, will dismiss the proceedings.