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K. (G.) v. Minister for Justice Equality and Law Reform [2001] IEHC 29; [2002] 1 ILRM 81 (6th March, 2001)
THE
HIGH COURT
JUDICIAL
REVIEW
2001
No. 13/1A
BETWEEN
G.
K. AND M. M. AND Z. M.
(AN
INFANT APPLYING BY HER FATHER AND NEXT FRIEND G. K.)
AND P. K. (AN INFANT APPLYING BY HIS FATHER AND NEXT FRIEND G. K.)
APPLICANTS
AND
THE
MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND
APPEALS
AUTHORITY AND IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGMENT
delivered by the Honourable Mr. Justice Finnegan on the 6th day of March 2001.
1. This
is an application by the Applicants for an Order extending the time within
which to bring an application for leave to apply for Judicial Review the
intended application being one being regulated by the Illegal Immigrants
(Trafficking) Act 2000 Section 5 (2) which requires that such an application be
made within the period of fourteen days commencing on the day 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.
2. The
Judgment of the Supreme Court on the reference to it on the Illegal Immigrants
(Trafficking) Bill 1999 has this to say of the objective of the legislature in
imposing the fourteen day limitation period:-
“The
Court is satisfied that the objectives of the Bill as regards the fourteen day
limitation period can be reasonably inferred from the provisions of the Bill.
There is a well established public policy objective that administrative
decisions, particularly those taken pursuant to detailed procedures laid down
by law, should be capable of being applied or implemented with certainty at as
early a date as possible and that any issue as to their validity should
accordingly be determined as soon as possible. (
Brady
-v- Donegal Co. Co., Irish Asphalt Limited -v- An Bord Pleanala and K S K
Enterprises Limited -v- An Bord Pleanala
[1994]
2
IR 218 at 135
).
Furthermore it may be inferred from the Bill and the surrounding
circumstances that the early establishment of the certainty of the decisions in
question is necessary in the interests of the proper management and treatment
of persons seeking asylum or refugee status in this country. The early
implementation of decisions duly and properly taken would facilitate the better
and proper administration of the system governing seekers of asylum for both
those who are ultimately successful and ultimately unsuccessful.
For
these reasons the Court is of the view that the State has a legitimate interest
in prescribing procedural rules calculated to ensure and promote an early
completion of Judicial Review proceedings of the administrative decisions
concerned. However, in doing so, the State must respect constitutional rights
and in particular that of access to the Courts.
Accordingly,
the Court is of the view that there are objective reasons concerning the public
interest in the certainty of the validity of the administrative decisions
concerned on the one hand and the proper and effective management of
applications for asylum or refugee status on the other. Such objective reasons
may justify a stringent limitation of the period within which Judicial Review
of such decisions may be sought provided constitutional rights are respected.
The
test is not whether a more extended period of time within which to seek leave
to apply for Judicial Review (whether slightly longer or very much longer)
would permit the same policy objectives to attained. As already mentioned,
procedures of the Courts may be regulated by law. It is a matter of policy and
discretion for the legislature to choose the appropriate limitation period.
The legislature is not obliged to choose the longest possible period that might
be thought consistent with the policy objective concerned. However, in
exercising that discretion the legislature must not undermine or compromise a
substantive right guaranteed by the Constitution such as the right of access to
the Courts. Where a limitation period is so restrictive as to render access
the Courts impossible or excessively difficult it may be considered
unreasonable in the sense Costello J found the rigid rule in
Brady -v- Donegal Co. Co.
to be unreasonable and therefore unconstitutional.
In
applying that test in this case, the Court acknowledges that there are likely
to be cases, perhaps even a very large number of cases, in which for a range of
reasons or combination of reasons, persons, through no fault of their own, (as
in the
Brady
Case
),
are unable to apply for leave to seek Judicial Review within the appeal
limitation period, namely fourteen days. This is a situation with which the
Courts deal on a routine basis for other limitation periods. The fourteen day
time limit envisaged by the Bill is not the shortest with which the Courts have
had to deal.
Moreover,
the discretion of the Court to extend the time to apply for leave where the
Applicant shows “good and sufficient reason” for so doing is wide
and ample enough to avoid injustice where an Applicant has been unable through
no fault of his or hers, or for other good and sufficient reason to bring the
application within the fourteen day period. For example Counsel assigned to
the Court have argued that the complexity of the issues, or the deficiencies or
inefficiencies in the Legal Aid Service, may prevent the Applicant from being
in a position to proceed with his application for leave within the period of
fourteen days.
However,
where this has occurred through no fault of the Applicant, it may be advanced
as a ground for extending the time for applying for leave for Judicial Review.
In
R. -v- Stratford on Avon District Council and another
[1985]
3 All ER 769
the Court of Appeal in England and Wales held that difficulty in seeking and
getting legal aid constituted a good reason for extending the time limit within
which to apply for Judicial Review. It held that:-
“It
is a perfectly legitimate excuse for delay to be able to say that the delay is
entirely due to the fact that it takes a certain time for a certificate to be
obtained from the legal aid authorities”.
That
was where despite proper endeavours upon part of the Applicant and her legal
advisors, a difficulty still arose.
The
Court is satisfied that the discretion of the High Court to extend the fourteen
day period is sufficiently wide to enable persons who, having regard to all the
circumstances of the case including language difficulties, communication
difficulties, difficulties with regard to legal advice or otherwise, have shown
reasonable diligence, to have sufficient access to the Court for the purpose of
seeking Judicial Review in accordance with their the constitutional
rights”.
3. Having
regard to the foregoing passages and the principles upon which the Court
exercises its discretion on other time related applications it seems to me that
the following matters are relevant to a decision whether or not to exercise
discretion in favour of an Applicant in cases in such as the present:-
- The
period of delay. If the delay is very short say a matter of a day or two a
very slight justification only for the same would be required to justify the
Court exercising its discretion in favour of an Applicant. Where a longer
delay has occurred through no fault of the Applicant or his legal advisor the
Supreme Court quoted with approval
R
-v- Stratford on Avon District Council and another
[1985]
3 All ER 769
.
In that case despite proper endeavours on the part of the Applicant and her
legal advisors delay was occasioned because a legal aid certificate could not
be obtained: on that basis an extension of time was granted. However in the
Rainsford
-v- Limerick Corporation
[1995]
2 ILRM 561 at 567
on an application to strike out a Plaintiff’s claim for want of
prosecution Finley P said:-
“While
the party acting through a Solicitor must to an extent be vicariously liable
for the activity or inactivity of the Solicitor, consideration of the extent of
the litigant’s personal blameworthiness for the delay is material to the
exercise of the Court’s discretion”.
4. In
the Judgment on the reference the Supreme Court gave as an example of
circumstances where delay occurs through no fault of an Applicant deficiencies
and inefficiencies in the Legal Aid Service and went on to say:-
“However,
where this has occurred through no fault of the Applicant, it may be advanced
as a ground for extending the time for applying for leave for Judicial
Review”.
5. Having
regard to the foregoing I take the position to be as follows. The Court should
in the first instance have regard to the Applicant’s personal
blameworthiness for the delay. The Applicant to some extent will be regarded
as responsible vicariously for any delay resulting from his Solicitors
deficiency or inefficiency. It may be appropriate to distinguish between the
Refugee Legal Service and a Solicitor in private practice. In effect the
Respondent provides the Refugee Legal Service for the Applicant and if delay
occurs due to deficiency or inefficiency in that service it would be unjust to
regard the Applicant independently of any personal blameworthiness as
responsible for the same. The situation where a Solicitor in private practice
is retained by an Applicant is quite different and the deficiencies and
inefficiencies of such a Solicitor may weigh more heavily on an Applicant than
would be the case with the Refugee Legal Service.
6. Further
in determining the extent to which an Applicant should be held vicariously
liable for the defaults of his Solicitor it is important to bear in mind the
serious consequences which could result from an application failing because of
delay. In a case such as
Rainsford
-v- Limerick Corporation
the disappointed Plaintiff will most likely to be able to recover from his
Solicitor in an action for negligence the like amount which he would have
recovered had the action proceeded. Where however an Applicant is deported the
consequences for him may be very serious indeed in that he may be deported to a
State in which his fundamental human rights would not be vindicated. For this
reason it seems to me that regard should be had primarily to personal blame
worthyness and to a lesser extent to the defaults of the Applicant’s
Solicitor for whose defaults the Applicant is in law vicariously liable.
2. It
is appropriate to adopt the approach enunciated in
Rainsford
-v- Limerick
Corporation.
Enquiries should first be made as the reasons for the delay and it
should
then be considered whether in the light of those reasons the delay is
excusable.
Even if the delay is inexcusable a Court should nevertheless have
regard
to all the circumstances to determine whether the balance of justice is in
favour
of or against granting an extension. Thus it would be appropriate to
have
regard to the Applicant’s right to life and liberty and other fundamental
human
rights in the context of the State to which it is proposed to deport him.
Regard
might also be had to length of time for which the Applicant has been
resident
within this State and his circumstances including the circumstances of
dependant
children.
3. Regard
should be had
to
the prima facie
strength of the Applicant’s case:
Van
de
Velde -v- Special Education Leaves Tribunal
[1996]
Crown Office
Practice
121
,
Guerin
-v- Guerin
[1992] 2 IR 293
.
4. The
complexity of the legal issues.
5. Language
difficulties and difficulties in obtaining an interpreter.
6. Any
other personal circumstances affecting the Applicant. In
Guerin
-v-
Guerin
[1992]
2 IR 293
on an application to strike out a claim on grounds of
delay
Costello J had regard to personal circumstances of the Plaintiff with
which
he dealt in the following terms:-
“The
delay of over twenty years in instituting these proceedings is indeed an
inordinate one but it is one which I think the Courts should excuse. The
Plaintiff’s family lived in one of the poorest sectors of the community,
the permanently unemployed. With fourteen children to rear and dependant on
welfare payments for their livelihood they must have lived most of their lives
at or below subsistence level. Theirs was an economically and socially
deprived world from which the world so familiar to lawyers in which people sue
and are sued was remote and arcane”.
7. The
circumstances giving rise to this application as follows. The Applicants
arrived in Ireland on 13th December, 1999 and applied for refugee status. They
had no legal advice or representation for the purposes of their application.
By letter dated 15th February, 2000 the Applicants were refused refugee status.
They were then directed to the Refugee Legal Service who entered an appeal
against that decision. By letter dated 12th July, 2000 they were notified that
their appeal had been refused. On the 2nd August, 2000 the Refugee Legal
Service made representations to the first named Respondent as to why the
Applicants should be allowed to remain in the State. This however was outside
the period of fifteen working days of the sending of the letter of 12th July,
2000 and by letter dated 14th August, 2000 the Refugee Legal Service were
informed that they could not be guaranteed that their representations would be
included in recommendations to the first named Respondent. By letter dated
23rd January, 2001 the Applicants were informed that the first named Respondent
had decided to make Deportation Orders in respect of each of them and they were
furnished with copies of the Deportation Orders. Immediately following receipt
of the letter the first named Applicant went to the Department of Justice
Equality and Law Reform building which previously housed the Refugee Legal
Service and presented the letter at reception there. He was informed that the
Refugee Legal Service had moved to Montague Street and understood that he was
told that he could not be helped further by the Refugee Legal Service. The
first named Applicant then contacted a Solicitor who was unwilling to act.
Then on the 1st February, 2001 the first named Applicant contacted his present
Solicitor who was reluctant to undertake the case for reasons
inter
alia
that he was too busy but ultimately with reluctance he agreed to take it. The
Solicitor obtained the file from the Refugee Legal Service on the evening of
7th February, 2001. The Solicitor did not deal with the matter until the 13th
February, 2001 and a brief for Counsel was drafted by the 14th February, 2001.
It was not finalised until 20th February, 2001. The Applicants had however
called to the Solicitors Officer the previous day the 19th February, 2001.
8. On
the 26th February, 2001 detailed instructions were taken from the Applicants
through an interpreter.
9. On
the affidavits filed on the application for extension of time it appears that
the grounds on which the Applicants will seek to rely in their application for
relief by way of Judicial Review are as follows:-
- The
first named Respondent failed to take into account representations made
pursuant to the Immigration Act 1999 Section 3 as to reasons why the Applicants
should be allowed to remain in this State.
- The
Applicants were not afforded legal representation in relation to their
application for refugee status.
10. As
to the first ground it appears from the letter dated 23rd January, 2001 that
the representations were indeed taken into account by the first named
Respondent: however the letter may well be a common form letter and
accordingly there may well be substance to this ground. As to the second
ground the Applicants had legal representation at all times from early August,
2000. The complaint relates to the period December, 1999 to August, 2000. I
regard this ground as particularly weak. However I am extending time for an
application on the two grounds mentioned above.
11. In
deciding to extend time I have taken into account the following:-
- The
extent to which the Applicants acted promptly and reasonably. Promptly on
receipt of the letter dated 23rd January, 2001 they attended the former offices
of the Refugee Legal Service and when disappointed there attended on another
Solicitor and when disappointed there on 1st February, 2001 attended on their
present Solicitor. Thereafter they attended him when required.
- The
delay which occurred was as a result of the Applicants’ Solicitors
facilities being over extended. No personal responsibility attaches to the
Applicants.
- While
it is not possible to say that the Applicants case on the first ground is a
strong one it is a case that can be readily clarified by a short affidavit from
the Respondent on the application for leave as to whether or not the
representations were taken into account.
- The
Applicants have been in Ireland since December, 1999 residing as a family unit.
- It
would appear that there were language difficulties in that in order for the
Applicants Solicitor to obtain full instructions an interpreter was necessary.
© 2001 Irish High Court
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