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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Q.H. & anor (Pakistan) -v- Refugee Appeals Tribunal & ors [2015] IEHC 505 (30 July 2015)
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Cite as: [2015] IEHC 505
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Judgment
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Neutral Citation [2015] IEHC 505 THE HIGH COURT
JUDICIAL REVIEW [2012 No. 856 J.R.]
[2012 No. 857 J.R.] BETWEEN Q.H AND G.H. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND Q.H.) (PAKISTAN) APPLICANTS AND
REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, THE ATTORNEY GENERAL AND IRELAND RESPONDENTS JUDGMENT of Mr. Justice Eagar delivered on the 30th day of July, 2015 1. This is a joint judgment of a preliminary issue in the telescoped hearing of applications for orders of certiorari quashing the decisions of the first named Respondent both dated the 20th June 2012 and notified to the Applicants respectively on the 2nd July 2012 and 13th July 2012. 2. The grounds up which relief was sought in the statement of grounds in relation to Q.H.:
2) The imposition of a requirement that one must have a high profile as an Ahmadi is irrational in the light of the country reports placed before the Tribunal. 3) Without prejudice to the aforesaid the Tribunal erred in finding that the Applicant’s lacks a “profile” as an Ahmadi in circumstances where the Applicant comes from a high profile Ahmadi family. 4) The decision is internally inconsistent in that the Tribunal Member holds that the Applicant has never engaged in preaching of conversation while then acknowledging that the Applicant was “involved in religious education of Ahmadi children.” 5) The findings that the internal relocation available to the Applicant was made without regard to the evidence including country reports placed before the Tribunal. 6) The Minister lacked the jurisdiction to make the decision to refuse the Applicant refugee status in circumstances where the Applicant was not afforded a lawful asylum process. 7) The Respondents failed to have any or any reasonable regard to the grant of leave to remain to the husband of the Applicant. 8) If necessary an order providing for an extension of time
2) The Tribunal erred in law in placing a requirement that the Applicant should show she is “an exceptional” Ahmadi in circumstances where country reports placed before the Tribunal show that non “exceptional” Ahmadis are exposed to persecution in Pakistan. 3) An order providing for an extension of time herein. 5. The Applicants applied for an extension of time and the Respondent objects to same. 6. In her affidavit, which included country of origin reports, she was notified by letter received on or about the 2nd July 2012 that the Tribunal affirmed the decision of the Commissioner. 7. She was subsequently notified that the Minister refused to grant her refugee status and proposed to make a deportation in respect of her. This letter was dated the 31st July 2012. She was also invited to apply for subsidiary protection. By way of explaining the delay in bringing of the proceedings she says that on receipt of the decision of the Tribunal she instructed her then solicitor to challenge the decision. She says that he sought the advice of counsel in this regard but a challenge was not advised. She then sought the assistance of her present solicitor and was advised her file was not received by her present solicitor until the 20th September 2012, primarily due to confusion as to where her file was located and even then there were documents of relevance missing form the file. She says that she also experienced difficulties in travelling to Dublin from Cork to provide instructions due to her being in the advanced stages of pregnancy. She advises and believes that her brief was immediately prepared for counsel and counsel’s opinion was sought. She further advised that due to pre-existing work commitments in preparation for the new legal term, counsel was unable to provide an opinion until the 2nd October 2012. On receipt of counsel’s opinion, instructions to institute the within proceedings were given immediately and they were commenced on the 11th October 2012. In relation to her daughter’s case, the adult Applicant QH swore an affidavit saying that her daughter was born in Pakistan on the 28th December 2005 into an Ahmadi family, that she had suffered persecution since birth on account of her Ahmadi status, her father had since been granted leave to remain in Ireland in circumstances where his representations were substantially directed to his faith and the treatment of the Ahmadis in Pakistan. Her daughter and herself arrived in Ireland on the 8th October 2011. She attended for interview at the Commissioner in respect of her daughter’s application and was notified that the Commissioner had refused her daughter, and a notice of appeal was submitted to the Refugee Appeals Tribunal. She was notified by letter on or about the 13th July 2012 that the Tribunal affirmed the decision of the Commissioner. A copy of the decision of the Tribunal Member was enclosed. He was subsequently notified that the Minister received to grant her daughter refugee status and proposed the making of a deportation order and this letter was dated the 31st July 2012. By way of explaining the delay in bringing the proceedings, she said that on receipt of the decision of the Tribunal she instructed her then solicitor to challenge the decision as in her own situation and in each case she asked for a further order of extension of time. 8. Section 5(2) of the Illegal Immigrants (Trafficking) Act 2000 provides as follows:-
(a) be made within the period of 14 days commencing on the date on which the person was notified of the decision, determination, recommendation, refusal or making of the Order concerned unless the High Court considers that there is good and sufficient reason for extending the period within which the application shall be made”. 10. Section 5(1) states as follows:-
(i) A decision of the Refugee Appeals Tribunal under s. 16 as amended by s. 11(1)(k) of the Immigration Act 1999 of the Refugee Act 1996 otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts.”
12. In hearings pursuant to s. 5 Illegal Immigrants (Trafficking) Act 2000 with a view to dealing with substantial delay issues in hearing of judicial review cases, the High Court has sought to truncate the time by having telescoped hearings of judicial review of Refugee Applications Commissioner decisions or Refugee Appeals Tribunal decisions in complying with s. 5(4) of the Act. The High Court are giving priority as is reasonably possible by having pre-leave telescoped hearings. Extension of time
(a) there is good and sufficient reason for doing so, and (b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either— (i) were outside the control of, or (ii) could not reasonably have been anticipated by the Applicant for such extension.” (4) In considering whether good and sufficient reason exists for the purposes of sub-rule (3), the court may have regard to the effect which an extension of the period referred to in that sub-rule might have on a Respondent or third party. (5) An application for an extension referred to in sub-rule (3) shall be grounded upon an affidavit sworn by or on behalf of the Applicant which shall set out the reasons for the Applicant’s failure to make the application for leave within the period prescribed by sub-rule (1) and shall verify any facts relied on in support of those reasons. (6) Nothing in sub-rules (1), (3) or (4) shall prevent the Court dismissing the application for judicial review on the ground that the Applicant’s delay in applying for leave to apply for judicial review (even if otherwise within the period prescribed by sub-rule (1) or within an extended period allowed by an order made in accordance with sub-rule (3)) has caused or is likely to cause prejudice to a Respondent or third party.” 14. Counsel on behalf of the Applicant, Mr Christle SC (with Mr O’Halloran) referred to judgments given by Barr J. and MacEochaidh J. In S.A.B. v. Refugee Appeals Tribunal & Ors [2014] IEHC 495 Barr J. gave an extension of time in circumstances where an Applicant had received notification of the decision on the 18th and 19th December 2009. He said:-
10. In the circumstances, where it has taken over four years for the application to come on for hearing and where no prejudice has been caused to the Respondent by the delay in instituting the proceedings, I am satisfied that there are substantial grounds for extending time for lodging the within proceedings up to and including 20th January, 2010, which appears to be the date on which the notice of motion issued.” 15. In K.B. v. Minister for Justice Equality and Law Reform [2013] IEHC 169, MacEochaidh J. stated as follows:-
18. I have no hesitation in finding, in accordance with the dicta of lrvine J. in A. & Anor v. Refugee Applications Commissioner [2008] IEHC 440 that good and sufficient reasons have been advanced to extend time and I do so without hesitation. 19. To this, I wish merely to add that I would be extremely reluctant to entertain an application to dismiss proceedings four years after the institution of those proceedings where the first indication of a complaint about delay is to be found in the written submissions filed in the days before the hearing. If a State Respondent is keen to pursue a genuine delay point, this itself should not be delayed, and I say this having regard to the particular circumstances of failed refugee judicial review Applicants who live, generally, in very difficult circumstances on a mere €19 or so a week. It would be unconscionable to permit proceedings to fail on a time point where an Applicant might have endured significant hardship over many years waiting for such a simple point to be determined. There would be much merit in such time points being advanced expeditiously and by motions in limine.”
I have concluded that a change of counsel in the circumstances of this case is not good and sufficient reason to extend the period. Mr. Pendred, the solicitor for the Applicant is an experienced solicitor in refugee matters. He had available to him all the relevant information on the 27th November, 2002. He also had been given an opportunity by this Court of filing documents seeking to amend prior to the 20th December, 2002. 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 sub-s. (2) of s. 5 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.” 17. Mr Donnelly also opened G.K. v. Minister for Justice Equality and Law Reform [2002] 2 IR 418. In this case the Applicants arrived in Ireland having travelled by plan from Warsaw to Frankfurt, Germany and then changed for a direct flight from Frankfurt to Dublin. They do not appear to have sought refugee status in Germany. They had previously travelled to the United Kingdom from Poland in December 1997. They applied for refugee status in England but were refused and were unsuccessful on appeal and they were deported from the United Kingdom to Poland in January 1999. Hardiman J. looked at “criteria for extending the time”. He stated:-
On the hearing of this appeal, a very clear point of divergence between the Applicants and the Respondents arose in relation to the interpretation of s. 5(2)(a). The Applicants contended that the phrase "good and sufficient reason for extending the period" excluded any consideration of the merits of the substantive application for judicial review... The Respondents, on the other hand, contended that the phrase "good and sufficient reason for extending the period within which the application shall be made" included a consideration of the merits of the case for judicial review.”
20. Mr Donnelly also indicated that if the decision of MacEochaidh J. in K.B. v. Minister for Justice Equality and Law Reform (supra) were to be followed by the Respondent by bringing delayed points before the court at an earlier stage, that the court would be overwhelmed by the list of cases where the Respondents were seeking to object to an extension of time. This court indicated to Mr Donnelly that with four asylum judges, and only one involved in a Monday List, that one of the other judges could take a complete list of applications for seeking to complain about delay. 21. This matter was listed on the Monday List on the 20th February 2015 and the case was listed for hearing on the 24th April 2015 and returned to the List for allocation of an early hearing date with priority. This matter came before the Call Over List of the 22nd June 2015 and was put in for hearing on the 1st July 2015. The first indication that there was an application to refuse to extend to seek to object to an extension of time was in the intended statement of opposition in April 2012 and the notice of motion was issued on the 7th October 2012, a period of nearly three years. 22. This court is satisfied that the circumstances outlined by the adult plaintiff in relation to changing not only counsel but solicitor and a period during the Long Vacation with the difficulty of her travelling from Cork to Dublin with a late pregnancy, constituted good and reasonable grounds and were outside the control of and could not reasonably have been anticipated by the applicant for the requirement of such an extension. 23. It is also noted that Rule 21(4) where the court has to consider whether good and sufficient reasons exist for the purpose of Rule 21(3) the court may have regard to the effect which an extension of the period referred to in the subsection might have on a Respondent or third party. This court is of the view that this has caused no prejudice to the Respondent in this case. Mel Christle SC and Gary O'Halloran BL, instructed by Trayers solicitors, for the Applicant Daniel Donnelly BL, instructed by the Chief State Solicitor, for the Respondents. |