High Court of Ireland Decisions

1. The Applicant is a Nigerian who arrived in Ireland on the 23rd December, 1999. He completed a questionnaire for the purpose of seeking asylum under the Refugee Act, 1996 as amended (hereinafter referred to as the Refugee Acts). He notified the appropriate authorities in this context a change of address on the 11th February, 2001. A letter dated the 20th March, 2001 invited the Applicant to attend for interview, which took place on 14th April, 2001 and at which the Applicant confirmed his address as at Flat 3, 444 South Circular Road, Dublin 8.

2. The requisite reports and recommendations under Sections 11 and 13 of the Refugee Acts were made on 12th and 17th April, 2001 respectively and a formal recommendation was made on 19th April, 2001 indicating that the Refugee Applications Commissioner (hereinafter referred to as the Commissioner) had “decided” by

3. I am satisfied and find as a fact on the evidence that the letter (with its enclosures) was sent by registered post to the Applicant at his notified address. The verification documentation of An Post show that the delivery was sought to be effected but was not and that the Postal Authority noted on the envelope enclosing the letter and documentation “ not called for ”, not “gone away” which was what I was informed when the matter was originally referred to in Court and prior to Affidavit evidence from the Applicant’s Solicitor being presented to the Court. The envelope and its contents not having been called for, the Postal Authorities returned it on 9th May, 2001 to the Commissioner and same was received in the Commissioner’s Office on 10th May, 2001. In the events no appeal was lodged by the Applicant to the Tribunal within the time limit set out in the letter of 20th April, 2001 or at all. It cannot be the law that where a statute obligates a person to give notice to another and in discharge of that obligation forwards the notice by registered post to the correct address to that other, and the intended notice is not in fact received because the recipient is not present at the time of delivery or fails, neglects or otherwise does not call to the Postal Authorities to collect same and that person does not tender to the Court evidence on oath orally or on Affidavit to explain the circumstances of his/her conduct that the Court should accept as rebutted the service deemed by the statutes.

4. Eventually the Minister by letter dated the 25th April, 2001 (sent by registered post to the Applicant at his notified address and clearly received by him) conveyed his decision to refuse to give the Applicant a declaration as a refugee. The letter noted - “You have not submitted an appeal within the permitted time limits .”

5. The Applicant’s Solicitor sought a copy of the Applicant’s file from the Tribunal by letter dated 3rd August, 2001 which was sent to him by the Minister under cover of a letter dated 7th August, 2001. A detailed submission for ‘leave to remain on humanitarian grounds’ under Section 3 of the Immigration Act, 1999 was made on the 14th August, 2001 which ( inter alia ) stated:-

6. A separate letter of the same date to the Minister drew attention to the fact that the file of the Applicant received by the Minister contained a letter of the 20th April, 2001 and that the Applicant never received that letter. The letter of the 14th August went on to request the registered post number and noted:-

7. This letter does not appear to have been replied to or followed up by the Applicant or his Solicitor save that a letter of the 17th August, 2001 from the Minister (Repatriation Unit, Immigration Division) informed the Solicitor the matters inquired of were

8. In the interval of time between 17th August, 2001 and 23rd October, 2001 the Minister signed a Deportation Order dated 26th September, 2001 and a letter of notification thereof is dated 5th October, 2001. The first application to Court for interim injunctive relief is stated by Counsel to have been made by on 2nd November, 2001.

9. The relief being sought by the Applicant is to permit him to raise as a ground of relief a claim or plea that the Commissioner failed, neglected or otherwise failed to comply with Section 13(3)(b) of the Refugee Acts and thereby deprived the Applicant of his right of appeal to the Tribunal. I am satisfied this case is clearly distinguishable from R-v- Home Sec. Exp. Saleem [2001] 1 WLR 443. A subsidiary but other necessary relief was for an extension of time under Section 5(2) of the Illegal Immigrants (Trafficking) Act, 2000, notwithstanding the application is founded on proceedings originated by a plenary summons. It was conceded during argument that if the point concerning the letter of 20th April, 2001 were to fail it was irrelevant to proceed to the question of extensions of time and questions of applications for leave as the other grounds of relief sought in the Judicial Review proceedings were all covered by the decision of TEN -v- The Minister (Unreported, 31st October, 2001).

10. The Respondents reply to the case being made by the Applicant was that there had been compliance with the statutory provisions, and there was no evidence of good and sufficient reason averred to to warrant an extension of time. While the case of the Applicant and the papers was clearly based on the alleged non-compliance with the provisions of Section 13(6) of the Refugee Acts, Counsel sought to argue a case founded on Section 6 of the Illegal Immigrants Act, 1999. Altogether from the alteration of the basis of complaint Section 6 of the Act of 1999 is clearly referable to the Act of 1999 and not to the Refugee

11. Acts. Furthermore the position arising from a consideration of the application of Section 6 of the Immigration Act, 1999 was considered by Finnegan J. in Poppa -v- The Minister (Unreported) referring specifically to the words of Section 6(b) he stated:-

12. I happily adopt that statement of the law.

13. Furthermore the decision of the Supreme Court, which considered the deemed provision of Section 10(c) of the Bill of 2000 in the context of Section 5(2)(a) thereof, [Section 10(c) aforesaid amends Section 6 of the Immigration Act, 1999]. In the Illegal Immigrants (Trafficking Bill), 1999 [2000] 2 IR360 at p. 395] states:-

14. The Applicant submitted that the case of The State (Patrick O’Regan) -v- District Justice Plunkett M. [1984] ILRM 347 was authority for the proposition that Certiorari would lie where there had been a failure of natural justice. However, as is clear from the decision of Gannon J. in that case his decision was based on his finding that there had been a deliberate withholding of information by the prosecution until the last moment even though it was known that delivery of it was required. Furthermore, as is clear from the report (p. 348) the registered posted package in that case was returned ‘no such person at this address’. In the instant case there has been clearly an abortive attempt to deliver the letter of 20th April, 2001 and a failure to have the posted package collected.

15. I am satisfied and find as a matter of fact and of law that there was compliance with Section 13(3)(b) of the Refugee Acts (and of Section 6 of the Immigration Act of 1999 is applicable then it also had been complied with.) At that time the Commissioner received back the posted package from the Postal Authorities the statutory time limit of 15 days for appeal had been spent. This case is furthermore distinguishable from O’Regan’s in that there was no deliberate withholding of information by the Respondents or any of them when enquiries were made in August, 2001. The Section 3 application for ‘leave to remain on humanitarian grounds’ pursuant to Section 3 of the Immigration Act, 1999 was processed in the knowledge of the fact as it is asserted or alleged ‘Mr. O. never received this letter’ (i.e. of 20th April, 2001) recorded in the Solicitor’s letter of 14th August, 2001. It was open to the Applicant/or his Solicitor if he ‘deemed it appropriate to Mr. O’s circumstances’ to bring the Judicial Review proceedings at that time. None issued. No proceeding issued until all avenues were explored and exhausted post the Deportation Order.

16. The application is dismissed both on the issued expressed intended grounds and as to time. The consequences of this judgment are that all proceedings fail whether on the extended ground or those other claims which fall within the wake of TEN -v- The Minister for Justice are dismissed and are at an end.