High Court of Ireland Decisions

1. This application seeking an extension of time to commence an application for leave to apply for Judicial Review pursuant to Section 5 (2) of the Illegal Immigrants (Trafficking) Act, 2000 and Order 84 Rule 20 of the Rules of the Superior Court, comes before the Court against the following background.

2. On 21st July, 2000 the Applicant applied for refugee status and completed a detailed questionnaire. On 23rd August, the Applicant was interviewed by one Paul McHenry, whose report thereof is dated 15th November, 2000. This report does not use the word recommendation. The report is critical of the Applicant and elements of the application and most certainly does not commend the Applicant as worthy of refugee status, indeed quite the contrary and expressly states that Mr. McHenry is:-

3. The report in its conclusion states that:-

4. It is perfectly clear from the report that the Applicant has not been commended with favour or repute on the contrary the clear intendment is that he is not being recommended for refugee status. The report is addressed or sent or forwarded to one Mairín Ní Duinn, HEO in the typescript heading. Her name appears to have been deleted by a Mr. Brennan (sometimes referred to in the documentation as Gerry of Jeffrey Shannon) whose signature is appended (as dated 17th November, 2000) and who notes on the report :-

5. New procedures were established by the Refugee Act 1996 as amended which came into operation on the 20th November, 2000.

6. By letter dated 18th January, 2001 the Applicant was notified of the determination of the application, which was made prior to 20th November, 2000. The letter refers to the transition arrangements in the Refugee Act. This is clearly a reference to Section 28 of the 1996 Act. It states that accordingly this determination was one deemed to have been made under Section 8. The Section provides as follows:-

7. It seems in this letter that the writer Mairín Ní Duinn HEO of the office of the Refugee Applications Commissioner considered that the determination was deemed to have been a step taken under the Act. I refer to these matters not because they were then of immediate importance to the question of the extention of time but because the matter was advanced by Counsel for the Respondent that the Section had no application because the Minister had made a decision before 20th November, 2000. He had made “ a decision ” in that an officer of his Department had made a recommendation to refuse refugee status and in that sense it, the recommendation, was a decision. Confusion however appears to have arisen from the text of the letter as it followed which went on to say:-

8. The letter further went on to state that :-

9. In determining an extension of time application, it is not necessary for me to make the determination as to whether Section 28 applied in the manner contended for by either Applicant or Respondent suffice it to say that I am satisfied in the findings of fact and as a matter of law that this case is distinguishable from Ulhaq v. The Minister for Justice , Equality and Law Reform and the Refugee Appeals Commissioner (Finnegan J. unreported 3rd, July 2001) where the decision was based on the absence of a recommendation. It would of course be preferable if administrative decisions or decisions under the procedures or Acts used the exact word or words in the procedure or Acts which might avoid any unnecessary litigation, doubt, real or imaginary and alleged ambiguity. However the clear sense of language used in the documentation in the instant case is that of recommendation, it must be advisory in nature. It is not in my view finally determinant. On the other hand the Respondent argued during the course of the hearing that the view expressed by Mr. Brennan was that of the Minister, that it was of the nature of a final decision. A decision had not been made by the Minister in person. But rather in the person of an officer making a recommendation that being done before coming into effect of the relevant part of the Act. In the events it was governed by the Hope Hanlon procedures. The report of 17th November, 2000 notwithstanding its brevity and sparseness of expression is nonetheless in my judgment just sufficient to satisfy Section 13 (1) of the Act 1996 as amended and the assessment is to be found in the expression that the writer had been “satisfied” and the judgment element of the Section 13 provision is to be found in the word “consider”. Even if there were a doubt in this regard and the case were to go forward, by application of the judgment in The State (Abenglen Properties) v. Dublin Corporation [1984] 381 the remedy (necessary to give real effect to the case of the Applicant) i.e. Certiorari would not lie. The Abenglen case which dealt with the default procedure provided for by Section 26 Sub-Section 4 of the Local Government (Planning and Development) Act, 1963 in his judgment Walsh J. observed at p396 as follows :-

10. In the events of the instant case the Applicant did by Notice of Appeal dated the 1st February, 2000, addressed to the Tribunal set out his grounds of appeal. The right to seek Judicial Review is clearly referred to in the solicitor’s letter. The matters submitted to the Tribunal are similar in almost all respects or identical to those set out in the documents submitted to the Court and though not part of an Extension of Time application were referred to during the course of the argument. Although the Tribunal is dated 21st May, 2001 and a letter transmitting the Tribunal’s decision is dated 25th May, 2001. The Applicant’s solicitor wrote to the Tribunal by letter dated 5th June, 2001 It compounds the confusion referred to earlier concerning the applicability and interpretation of Section 28. It indicated to the Tribunal that the point of Law that was agitating the Applicant was the subject of a Judicial Review application which had been heard by Mr. Justice Finnegan in January of the year 2000 and requested that no further steps will be taken in dealing with the application until the decision of the High Court became known. The matter appeared to have been wrongly addressed that in the acknowledgement of the 21st June, 2001 the letter that had been sent to the Tribunal was forwarded to the Minister for his attention. On the 3rd July, 2001 the Judgment of Mr. Justice Finnegan in the Ulhaq case was pronounced and delivered. By letter dated 11th July, 2001 the Applicant’s solicitors wrote to the Minister as to the decision of Mr. Justice Finnegan and contended that the decision was applicable to the Applicants application and the application would have to be returned to the Refugee Applications Commissioner to properly complete. A letter concluded as follows:-

11. The response to that letter is of importance because not only does the Minister deal with the Respondents query but the deciding officer one Linda Grealy by Order 3rd August conveyed to the Applicant that the:-

12. In a separate letter of the same date, signed by a member of the Ministerial Decisions Unit of the Department, the submission of the Department is clearly set out and reads as follows-:

13. Whatever be the rights or wrongs of matters that had proceeded up to this date the position as of 3rd August, was that the Ministerial decision had been made and was intimated unequivocally to the Applicant and it was stated that a Deportation Order would be made up and followed through. So it’s clear that as of that date the relevance of the Ulhaq decision was being disputed and the cases were being distinguished. I am satisfied that there was no case of inducement by a correspondence that the Applicant’s position would not be challenged or that any particular leeway or indulgence would be given to the Applicant. Indeed all the pointers were to the contrary. On 9th August, 2001 the Applicant’s solicitor wrote in detail to the Ministerial Decisions Unit of the Department of Justice, Equality and Law Reform and referred back to the letter of 3rd August in relation to the Applicant’s application for asylum. In that letter it is acknowledged that the Applicant’s case was one of “manifestly unfounded” and dealt with under Paragraph 12 of the Hope Hanlon procedures and that the Ulhaq case was a substantive case being dealt with under Paragraph 10 of these procedures. However, in terms of the finding of fact, altogether from the differences under which paragraph of the procedures were applied I am satisfied that the documentation before me though not using the word recommendation clearly contains recommendation in the fashion which I have indicated heretofore in the judgment. The point was made for the Applicant that the Ulhaq decision was being appealed in the Supreme Court and that in order to avoid unnecessary litigation in the meantime the Solicitors were appealing to the Minister to refrain from taking any further steps and if he did not respond within seven days confirming that no further steps would be taken, an application for Judicial Review would be made to court. Some Motion to enable the procedures of the rules to be implemented under the Statute was lodged in the Central Office on 28th August, 2001.

14. The time within which the Applicant had to move for Judicial Review on foot of the decision intimated was 3rd August, 2001.

15. The Court must be satisfied there is good and sufficient reason tendered in the evidence in which to extend the time. I am not satisfied that such has been tendered in the instant case. Of the matters that are intended to be proceeded with if leave were granted items a, b, and c are all time barred by months. Accordingly there has to be decided as to whether an extension of time should be granted in respect of the decision intimated in the document of 3rd August, 2001. In my view this ought not to be given. The Applicant was aware from a very early stage that Judicial Review is an option that might be exercised. For a variety of reasons he did not move to challenge the decisions which he has complained of during the course of the submissions made and the documentation submitted to the Court. And when the final decision was made on the 3rd August, the Applicant did not move with the promptitude required by the Section but sought by means of correspondence to parry or temporise in correspondence with a view to ascertaining if the Respondents were prepared to withhold the giving of full effect to the procedure as it had proceeded up to that date. In my Judgment the case is clearly distinguishable from Ulhaq and the various headings referred to by Finnegan J. in Benson v. The Minister (unreported 2nd April, 2001) being considered by me and also having regard to the provisions of the Orient Continental Trading Company Limited v. Clonmel Foods Limited [1955] IR 170 at 173 , Van de Velde v Special Educational Needs Tribunal [1996] C. O. D. 92-182 p121 at 122 in which it was held refusing application that:-

16. I am not satisfied that even taking this factor into account which might be in ease of the Applicant that there is anything like a clear cut or any victory open to the Applicant in the event of an extension of time being granted. However I content myself to be guided by the express provisions of the Act of 2000 as interpreted in the reference on the Section by the Supreme Court and I refuse the application.