High Court dismisses leave to apply judicial review for asylum applicants due to inexcusable delay in seeking relief.

Neutral Citation Number: [2009] IEHC 219

THE HIGH COURT

2007 1192 JR

BETWEEN

S.M.O.

APPLICANTS

AND

REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE EQUALITY AND LAW

REFORM, AND IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

RESERVED JUDGMENT of Mr. Justice Cooke delivered on the 7th day of May, 2009.

1. This proceeding, in which the applicant seeks leave to apply for judicial review of a Report and Recommendation of the

Refugee Applications Commissioner under s. 13 of the Refugee Act 1996 and the subsequent decision of the Refugee

Appeals Tribunal, was listed for hearing with a similar application in the case of NXQ v. Refugee Applications Commissioner

& Anor. because of a certain number of overlapping factors in the two cases. Both parties were represented by the same

junior counsel; both involved recently brought motions to add relatives of each applicant and for amendment of the

statement of grounds; and both required substantial extensions of time under s. 5(2)(a) of the Illegal Immigrants

(Trafficking) Act 2000 if the applications for leave were to be entertained. Immediately prior to the hearing of the

submissions in the present case, judgment had been given on the issue of the extension of time in the NXQ case. The

Court refused the extensions.

2. The first named applicant is a native of Somalia who arrived in the State at the end of December 2003 accompanied by

four children who were then minors as follows:

- a son Ah.M.A., born on 1st January 1989;

- a son M.M.A., born on 1st January 1990;

- a daughter S.M.A., born on 1st January 1991 and

- a son A.M.A., born on 1st January 1996.

Three other children and the applicant's husband remain in Somalia.

3. She applied for asylum here on 6th January, 2004 and included the four children in that application. She claimed that

she and her family were members of the Rer Hamar minority ethnic group and claimed to fear persecution at the hands of

militia if returned to that country. 4. Her claim as made to the Commissioner was that she feared that she and her

children would be killed by the militia if returned because her father was killed by them in an attack in 1999 when she

herself was also struck which a bayonet. Her home had been attacked many times and her husband kidnapped. In an

attack in October 2003, immediately before her flight from Somalia, her eldest daughter was killed, her husband abducted

for ransom and her son Ah. hit. Since she left Somalia she claims that another of her sons had been killed in a further

abduction.

5. In the report of 30th November, 2004 the Commissioner recommended that the applicant be not declared a refugee on

this basis:

“The applicant’s claims of her travel and whereabouts and personal circumstances before she applied for asylum in

the State lack credibility and seriously bring into question the former habitual residences/nationalities of the

applicant and the four minors considered under her application. This in turn serves to undermine the applicant’s

claims of persecution.”

6. A decision of the Refugee Appeals Tribunal, on appeal from that decision on 30th June 2005, found that the applicant

had failed to discharge the burden of proof in establishing a well founded fear of persecution, largely, in effect, upon

credibility grounds based on a series of inconsistencies in her story identified by the Tribunal member, the absence of

documents and on her failure to explain adequately why she had not claimed asylum in Ethiopia. The decision notes that

she had four children with her in Ireland and that the eldest son, Ahmed, had died since the date of the Commissioner’s

report.

7. The applicant initiated the present judicial review application by originating notice of motion filed on 18th September,

2007, some 26 months following the decision of the Tribunal on 30th June, 2005. In the applicant’s statement of grounds

as originally formulated for the application, some 24 substantive grounds were put forward to be advanced as the basis to

seeking leave to challenge both the decision of the Commissioner and that of the Tribunal. Prominent among those

grounds at numbers 3, 4 and 8 are grounds directed respectively at the report of the Commissioner and the decision of

the Tribunal which allege errors of law and breach of natural and constitutional justice requirements, based upon the

proposition that the children were not afforded separate interviews before the Commissioner, although they were of ages

which made them competent to be interviewed and they were willing, able and available to do so. Further, the Tribunal

decision failed to make any assessment of their respective claims in their own right, although they were purported to be

covered by the decision.

8. Having heard the parties on the preliminary application to join the three children as applicants in the proceeding and

without prejudice to the issue of extending time, the Court decided to grant the application upon the grounds that these

applicants had been included in the proceedings both before the Commissioner and the Tribunal; they had a common

interest with their mother in the legality of those decisions and they did not appear to propose to advance any

substantive new ground which would alter the effective scope of the application as originally formulated. The amended

grounds proposed to be added as grounds 28, 29 and 30 appear to be variations or extensions of the existing grounds

mentioned in the preceding paragraph of this judgment, namely those directed to the absence of distinct participation by

and consideration of the children in the two contested decisions.

9. The Court then heard the submissions of the parties on the issue as to whether there was good and sufficient reason

in this case for the grant of the extensions of time that would be required if leave was to be given under section 5(2) of

the 2000 Act against (a) the decision of the Tribunal of 30th June, 2005 and (b) the report of the Commissioner of 30th

November, 2004. The Court invited the parties, in particular, to address the issue as to whether distinct criteria or

considerations fell to be taken into account in deciding whether to extend time in favour of the three newly joined

children as applicants, as compared with the position of their mother.

10. In the written legal submissions and in the course of oral arguments the Court's attention was drawn to the relevant

case law on this issue including, in particular, the following:

In the matter of Article 26 of the Constitution/Illegal Immigrants (Trafficking) Bill (1999) [2000] 2.I.R. 360;

G.K. v. Minister for Justice, Equality & Law Reform [2002] I.R. 418;

Azubugu v. R.A.T. (Unreported, Peart J., 27th July, 2007);

O’Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301;

O.S.T. v. Minister for Justice, Equality & Law Reform (Unreported, Hedigan J. 12th December, 2008);

De Róiste v. Minister for Defence;

Golan v. D.P.P. [1989] I.L.R.M. 491;

Ojuade v. Minister for Justice, Equality & Law Reform v. RAC & Ors. (Unreported Peart J., 2nd May, 2008);

J.A. & D.A. v. RAC, RAT & Ors. (Unreported, Irvine J., 3rd December, 2008)

11. The 14 day period fixed by s. 5 of the 2000 Act is undoubtedly strict even when compared with the six month period

fixed for an application for an order of certiorari under O. 84 of the Rules of the Superior Courts. Nevertheless, it has

been judged by the Supreme Court to answer a legitimate legislative objective and is consistent with the requirements of

constitutional law (see the judgments in the Article 26 case on the Bill). The discretion to extend time for good and

sufficient reason which the Act allows is considered to be a power which was wide enough to avoid the 14 day limit

operating to cause injustice.

12. It follows from the case law above that there are a variety of factors which fall to be taken into account in

considering whether good and sufficient reason is established for the exercise of the Court’s discretion to extend time in

any given case. These include, obviously, whether the applicant had formed an intention to challenge the contested

decision by judicial review and if so at what point in time by reference to the 14 day limit; whether reasonable diligence is

shown to have been exercised in seeking to pursue that remedy; the prima facie strength of the case proposed to be

made, whether legal advice and/or representation was available to the applicant and so on.

13. It is clear, however, that of primary consideration is the length of time elapsed since the expiry of the statutory

period of 14 days and the explanation and excuse offered for that delay. Unless evidence is provided on affidavit as to

why the application was not made within that 14 day period or very promptly thereafter such as to satisfy the Court that

the interests of justice require or justify extending time, the discretion cannot be exercised. As Costello J. said in the

case of O’Donnell v. Dun Laoghaire Corporation [1991] in a passage cited with approval in the De Róiste case;

“What the plaintiff has to show, (and I think the onus under Order 84 is on the plaintiff) is that there are reasons

which both explain the delay and afford a justifiable excuse for that delay.”

14. So far as concerns the first named applicant (and, indeed, the newly joined applicants in as much as they rely entirely

on the case which she makes), the only explanation for the failure to seek judicial review between the receipt of the

decision of the Refugee Appeals Tribunal at the beginning of July, 2005 and the initiation of the present proceedings on

18th September, 2007, is that contained in her grounding affidavit at paras. 31 to 35, taken together with the account

given by her present solicitor, Sarah Ryan, in her affidavit where she describes the steps which she took when first

consulted by the applicant on 23rd July, 2007.

15. The first named applicant, at paragraph 31 of her affidavit says;

“I say that when I received my negative recommendation from the first named respondent my solicitors in the

Refugee Legal Service did not have it judicially reviewed or inform me of any grounds that I could have it judicially

reviewed on and if they did I would have wished to have had it judicially reviewed or if they were not willing to do

so I would have attempted to find a private solicitor to do so on my behalf, which would have been difficult for me

as I did not have any Legal Aid to do so.”

16. This paragraph gives the impression the applicant was told nothing about the possibility of a judicial review application

in July, 2005, by the Refugee Legal Service. However, in para. 32 she says:

“I say that when I received my decision from the second named respondent I wished to have it judicially reviewed

but the Refugee Legal Service would not do so on my behalf, informing me that I would be going on to humanitarian

leave to remain instead.”

17. That paragraph seems to suggest that the Refugee Legal Service did, in fact, mention judicial review but declined to

act for her and suggested applying for humanitarian leave to remain instead. In para. 33 she mentions that she was

suffering from depression following her son’s death. In para. 34 she says her financial position, combined with her health

problem, made it very difficult for her to get a private solicitor familiar with asylum law who would take up her case. She

says that she had almost given up hope of “having my case judicially reviewed” as she puts it, when she heard of her

present solicitor and contacted her in July, 2007.

18. In para. 14 of a supplemental affidavit of 27th February, 2009 grounding the motion to join the three children in the

present proceeding, she again says that the delay in bringing that motion was due to the fact that she was suffering from

“anxiety/depression” since the death of her son. This is the same health problem invoked to excuse the delay up to 2007

but it did not prevent the first named applicant contacting her present solicitor and travelling to Cork in 2007 to instruct

her. It is questionable, therefore, whether it could constitute a justification for the absence of any steps taken in, say,

2006.

19. The Court considers that having regard to the inordinate length of the delay in this case, which is itself exceptional,

this scant evidence is wholly inadequate as a basis for the exercise of the Court’s discretion to extend time in this case.

It is by no means clear exactly what happened when the applicant and her then legal advisers received the Tribunal

decision in July 2005 and whether the feasibility of seeking judicial review was mentioned, discussed or rejected at that

time. The Court notes that the applicant had been represented at the Tribunal by counsel instructed by the Refugee

Legal Service. In a letter of 13th April, 2005, which is amongst the papers apparently received by her present solicitor

from the Refugee Legal Service, counsel returned her brief papers and asked; “If he would forward the decision to me

when received”.

20. What is remarkable in this regard is the obvious gap in information of even a negative kind. Clearly, the file was taken

over from the Refugee Legal Service because certain documents from it are exhibited but the Court is not told whether

that represents the entire content of the file. Did it, for example, contain a copy of any letter to the applicant following

receipt by the Refugee Legal Service of their copy of the decision of the Tribunal explaining the significance of that

decision and outlining the options open to the applicant?

21. The names of both the solicitor and counsel who acted for her before the Tribunal are known. Was any contact made

with them to ascertain their recollection of what was done or advised at the time? Even if it was necessary to move

quickly in August and September of 2007 to commence these proceedings, it is surprising that the further lapse of time

throughout 2007 and 2008 did not afford an opportunity to follow up such possibilities of supporting the applicant’s case

for an extension.

22. To point to this is not in anyway to criticise the approach of the applicant's legal representatives since August, 2007

but merely to underline the difficulty posed for this Court by the obvious gap in information in respect of the years

2005/2007 when it is requested to exercise its discretion. The necessary evidential basis is not provided to it.

23. Furthermore, there is no evidence of the Refugee Legal Service actually ceasing to act for the applicant at any point

in time, nor of the applicant taking any steps to seek alternative legal advice or of attempting to contact or approach

other solicitors. Her present solicitor, contacted in July, 2007, appears to be the only solicitor she approached. Thus,

notwithstanding the claims to have suffered from depression, the Court finds that there is no evidence of any reasonable

diligence on the applicant’s part for over two years and thus no evidential basis upon which the Court could conclude that

there was good and sufficient reason to extend the time.

24. In his judgment in the De Róiste case in the Supreme Court, Fennelly J. commented in relation to the obligation of an

applicant to act promptly as follows:

“Furthermore he was bound, at least prima facie, to apply for an order of certiorari of the decision within six

months of its making and otherwise, to explain his delay and show that the delay was justified. In the nature of

things a short delay might require only slight explanation. A judicial review time limit is not a limitation period. The

prompt pursuit of the remedy is, however, a requirement of the judicial review application. A longer delay will require

a more cogent explanation …. extremely long delay without cogent explanation or justification may itself constitute

a ground for refusing relief.”

25. The delay in the present case is undoubtedly long in the context of section 5 of the 2000 Act. The Court is satisfied

that no such cogent explanation has been given for it, at least for the period of two years until the present solicitor was

engaged. In the absence of any indication of steps being taken during that period, the mere mention of ill health does not

constitute a justification or excuse. There is thus no basis upon which the Court's discretion could be exercised in favour

of the first named applicant.

26. The only remaining issue is whether any different decision should be made in respect of the applications now made on

behalf of the three children who have been joined.

27. In that regard it should be recalled that at the date of the decision of the Refugee Appeals Tribunal the three children

were aged respectively, 15 and a half, 14 and a half and nine and a half. The eldest son, M., reached 18 years of age on

1st January, 2008, some three and a half months after the present proceeding was commenced. The daughter reached

that age on 1st January, 2009 and, of course, the youngest applicant is now 13.

28. No evidence has been offered by or on behalf of any of the children as to why, notwithstanding the claim in the

statement of grounds of their competence to be interviewed and to give evidence in support of their own distinct claims

to refugee status, they delayed until February of this year to seek to challenge two contested decisions in their own

right. Neither of the children who are already 18 years of age at that point has provided any evidence in this application.

29. In the course of submissions the Court raised the question as to why, for example, when the applicant’s present

solicitor had been available to him in September, 2007 the eldest son, Mustaf, had delayed throughout the entire of 2008

after he had reached the age of 18 years without taking any step in his own right to initiate challenge to the decision of

the Tribunal. The Court was informed that counsel had no instructions on the point. In those circumstances,

independently of the unexplained and unjustified delay on the part of the first named applicant already indicated in this

judgment, there is then the wholly unexplained delay on the part of the second named applicant throughout the period

from 1st January, 2008 until the bringing of the motion to join them in the present application.

30. This is all the more surprising when regard is had to the fact, as already mentioned, that in the statement of grounds

as formulated for the proceeding in September, 2007 prominence was given in the grounds to be advanced, to the

argument that the Tribunal decision makes no substantive reference to any assessment of the entitlement to refugee

status of any of the children applicants and that they were never interviewed by the Commissioner nor invited to give

evidence before the Tribunal, either in corroboration of their mother’s evidence or in support of their own claims,

notwithstanding their competence and availability to do so. If these issues were to be advanced by the first named

applicant in September, 2007 there is no reason why all three children might not have been joined in the proceeding from

the outset and it is all the more remarkable that no steps were taken by the eldest son, the second named applicant, in

his own right on or after 1st January, 2008. Perhaps it was considered unnecessary to do so on the ground that if the

first named applicant succeeded in her application the decision of the Tribunal would have been quashed as against all

four but, if that is so, there is even less reason for extending the time.

31. In the submissions made on behalf of the second, third and fourth named applicants heavy reliance was placed by

counsel on the judgments of the Supreme Court in the case of A.N. and L.N. and Others v. The Minister and Another in

order to invoke the proposition that the principle of so-called “family unity” can apply in favour of family members but

cannot be invoked against them. In other words, minor children not included in an asylum application made by a parent

can claim the benefit of that application where it is successful; but if it is unsuccessful the Minister cannot treat them

also as having been refused asylum status if they have a distinct claim to refugee status in their own right. The Court is

satisfied that those judgments do not have any application to the circumstances of the present case. Here all the

children of the first named applicant were, in fact, included in the asylum procedures at all stages and the first named

applicant expressly claimed before the Commissioner to speak on their behalf.

32. Moreover, this is not a case in which the second, third and fourth named applicants have at any stage sought to

assert any claim for refugee status other than, or different from, the one made by the first named applicant on behalf of

them all. Her fear of persecution was explicitly that, if returned to Somalia, she and her children would be killed or harmed

by the militia who had attacked the family previously. The source and basis of the children’s fear of persecution was

precisely the same as that of their mother, namely, the attacks suffered when their home was attacked while they were

in it, the kidnapping of their father and the deaths of a brother and sister (see paragraph 4 above).

33. In these circumstances the Court is satisfied that all applicants are fixed with the same absence of explanation and

justification for the delay in failing to apply promptly for an inordinate and inexcusable length of time to seek the relief for

which leave is now applied.

34. It follows that the Court cannot in these circumstances exercise its discretion to extend time to allow leave to be

sought to quash the report of the Refugee Applications Commissioner either. Quite apart from the absence of the

evidential base as to the existence of good and sufficient reason, in November 2004 the applicants with legal advice

chose not to seek judicial review of that decision but took the entirely appropriate course of pursuing their statutory

remedy of appeal to the Refugee Appeals Tribunal. No argument has been advanced to the Court as to why that course

was not wholly appropriate and adequate to remedy the complaints that were made against the Commissioner’s report at

the time.

35. For all of these reasons the Court must decline to exercise its discretion to extend the time as sought and the

application for leave must therefore fail as being out of time.