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Cite as: [2019] IEHC 739

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THE HIGH COURT

JUDICIAL REVIEW

[2019] IEHC 739

[2017 No. 1 J.R.]

BETWEEN

M.U.A. (PAKISTAN)

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 18th day of October,

2019

1. The applicant was granted a student visa for the UK on 6th September, 2010 which

expired on 20th October, 2012. A second student visa was issued on 17th July, 2013

which expired on 15th August, 2014. The applicant then voluntarily left the UK and came

to Ireland where he applied for asylum on 20th March, 2015 never having previously

sought international protection in the UK. The Irish authorities made enquiries with the

UK Home Office who confirmed that the applicant’s fingerprints matched their records and

that they had no record of a protection application there. On 9th August, 2015 the

applicant submitted a notice of change of address to the Refugee Applications

Commissioner and all subsequent correspondence was sent to that address, including the

correspondence impugned in these proceedings. He attended an interview pursuant to

the Dublin III regulation on 25th September, 2015 and was given an information leaflet

as to the procedures involved in the Dublin system. On 25th November, 2015 the

Commissioner decided that the UK was responsible for the applicant’s asylum claim under

art. 12(4) of regulation 604/2013 and a notice of decision to transfer was sent by

registered post to the applicant’s last notified address. This letter was signed for. The

applicant was subsequently to claim that he did not receive this correspondence. On 9th

September, 2016 the applicant’s solicitors sent a late appeal to the Refugee Appeals

Tribunal claiming that the applicant had not received the original decision letter. On 29th

September, 2016 the tribunal wrote indicating that an affidavit would be required

averring to the reasons for the delay. On 11th October, 2016 such an affidavit was sent;

and by letter dated 14th December, 2016 the tribunal wrote to the applicant’s solicitors

stating that the late appeal would not be accepted. The crucial part of the letter states

that: “The reasons are that:- 1. ORAC complied with regulation 18(2)(b) of S.I. 525 of

2014, in relation to the service of Transfer Decision. A registered letter was sent to the

correct address. This was then delivered and signed for at that address. 2. The Tribunal

is unaware of any other late appeal having being accepted in similar circumstances. This

is considered to be a relevant consideration given the comments of Butler J. at para. 6 of

D v. RAT, 22nd January, 2003”.

Procedural history

2. Haughton J. granted leave on 3rd January, 2017. A statement of opposition was filed and

the matter came for hearing before Keane J. on 3rd May, 2017 at which stage it was

adjourned pending an application by the applicant to amend the statement of grounds to

add a challenge to the validity of the European Union (Dublin System) Regulations 2014

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(S.I. No. 525 of 2014). Keane J. then delivered judgment on that application, sub. nom.

R.P. v. Minister for Justice and Equality [2019] IEHC 377 (Unreported, High Court, 31st

May, 2019), allowing the amendments sought. Keane J. then indicated that he was not

retaining seisin of the case and the proceedings as amended then came on for a fresh

hearing. The primary relief sought in the amended statement of grounds is certiorari of

the letter of the tribunal dated 14th December, 2016 and a declaration that reg. 18(3) of

the 2014 regulations is ultra vires. In that regard I have received helpful submissions

from Mr. Feichín McDonagh S.C. (with Paul O’Shea B.L.) for the applicant and from Mr.

Robert Barron S.C. (with Ms. Emma Doyle B.L.) for the respondents.

The legal framework

3. At the time of the contested decision, the relevant legal framework was set out in the

2014 regulations, reg. 6(2) of which stated that an appeal against a transfer decision

shall “be made within 15 working days of the sending to the applicant of the notification

under Regulation 5(2)”. Butler J. in D. v. Refugee Appeals Tribunal (Unreported, High

Court, 22nd January, 2003) held that there was a jurisdiction in the Refugee Appeals

Tribunal to accept late appeals in exceptional circumstances, thus holding the time limit in

effect to be directory rather than mandatory. That conclusion is perhaps not absolutely

self-evident but presumably the Minister was aware of that jurisprudence when making

the 2014 regulations and did not clarify the position in the Dublin system context, bearing

in mind that the D. decision was in the context of substantive claims rather than Dublin

transfers. Regulation 18(3) of the 2014 regulations stated that where notice under the

regulations had been sent to the person in accordance with reg. 18(2)(b), that is by

registered post to a last furnished address, “the notice is deemed to have been duly

served on or given to the person on the third working day after the day on which it was

so sent”.

The interpretation of the tribunal letter

4. The interpretation of the letter of 14th December, 2016 challenging the proceedings is

crucial to the disposition of the case. As noted above, the letter sets out two reasons for

refusing to extend time. What do these reasons mean? In interpreting the reasons, the

overall principle must be one of a presumption of validity of an executive act: see per

Finlay J., as he then was, in Re Comhaltas Ceoltóirí Éireann (Unreported, High Court, 14th

December, 1977). If a decision can be construed in a way that renders it valid and if

reasons can be construed in a way that makes sense, that is how the court should

construe them. It would be just as much a breach of separation of powers to fail to

construe reasons in a way that renders the decision valid, assuming such interpretation to

be legitimately open, as it would be to fail to construe legislation in a way that renders it

valid, assuming such an interpretation is legitimately open.

5. Mr. McDonagh’s interpretation of the contested letter of 14th December, 2016 is that it is

“an incomprehensible decision” and does not contain any coherent reasons at all; or

alternatively if the first point in the letter means simply that the letter was sent to the

applicant that is not a valid reason; or alternatively it misinterprets the 2014 regulations

by implying that the applicant was deemed to have received the letter and therefore his

affidavit evidence was irrelevant.

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6. One point that can be made immediately is that clearly the letter of 14th December, 2016

was not a blanket refusal. It was not a treatment of the 2014 regulations as if there was

an absolute bar on late appeals. It expressly left the door open to late appeals by

referencing the decision in D. v. Refugee Appeals Tribunal. For that reason, the argument

about the alleged invalidity of the regulations simply does not arise because contrary to

the applicant’s false premise, the tribunal treated the time limit as something less than

absolute. The core of that ground in the amended statement of grounds is that “there is

no discretion to extend time. It appears therefore that the tribunal refused to entertain

the appeal simply on this account”. That is manifestly erroneous. There is no analogy

with the decision in R. v. Secretary of State for the Home Department ex parte Saleem

[2000] 4 All ER 814 where there was no discretion to extend time. The only sensible

meaning of reason number 1 is that, as the registered letter had been signed for, the

tribunal did not accept that the applicant had shown good reasons for an extension of

time. It follows logically and inevitably from the fact that the letter was signed for, even

though the tribunal did not laboriously spell this out, that either the applicant did actually

receive it or alternatively he had given an address for correspondence where, as is put in

the respondent’s written submissions, he was “not in a position for whatever reason to

monitor correspondence”. It doesn’t really matter which of these applies, although one

can observe in passing that common sense suggests it is far more likely that the applicant

did receive the letter. On reflection I wonder if I can be forgiven for saying that it

certainly seems to suit people to claim ignorance of letters informing them of obligations.

Letters informing people of their rights seem to rarely go astray for whatever reason. But

the validity of the tribunal decision does not require whether the applicant actually got the

letter or not to have been positively found by anybody. Relevant in this context also is

the Supreme Court’s judgment in Re Illegal Immigrants (Trafficking) Bill 1999

[2000] IESC 19 [2000] 2 IR 360 at pp. 395 to 396 upholding an analogous “deemed service”

provision set out in that Bill, where the Supreme Court noted that an applicant “is not a

passive participant in that process”. Thus the premise of the statement of grounds that

“it was irrational and unfair for the first Respondent to request affidavit evidence only to

reject the Appeal on a basis that rendered any affidavit evidence irrelevant” is a false one.

The fact that the applicant’s affidavit evidence was sparse and unparticularised and left as

many questions unanswered as it purported to address probably does not improve his

position under this heading.

7. The other grounds for the relief sought, which are that “it is a breach of natural justice

and fair procedures and the European law principle of Effectiveness”, are wholly

unparticularised. The decision is not a breach of natural justice. The tribunal simply did

not accept that the applicant’s explanation was sufficient to extend time. The principle of

effectiveness is not infringed either. That principle appears to be consistently

misunderstood on behalf of applicants (no matter how often I explain it – but let’s try

again). It does not mean that every EU-law-based application must automatically be

successful, just that national procedural rules should not make the exercise of EU rights

impossible or unduly difficult. Here the applicant had an opportunity to appeal which

would have made the exercise of any EU law rights both possible and relatively

straightforward - a letter advising him of the adverse decision was signed for at the

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address furnished by him. His failure to avail of that opportunity does not mean that the

principle of effectiveness was breached. A makeweight argument about legitimate

expectation is also pleaded but is unparticularised and unsubstantiated. Reason number

two in the tribunal decision is just a statement of fact that there are no comparable

circumstances where other persons were given late leave to appeal so therefore the

doctrine in the D. decision does not assist the applicant. That is a fair point and stating it

does not make the decision invalid.

8. For those reasons much of the elaborate legal construction erected by Mr. McDonagh

simply does not arise and does not need to be dealt with in detail because the key

premises of those legal confections are simply misconceived.

Order

9. The proceedings are dismissed.

Result: Proceedings dismissed