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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> C. (S.) v. Refugee Appeals Tribunal & Anor [2002] IEHC 140 (2 October 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/140.html Cite as: [2002] IEHC 140 |
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Record No.28JR/ 2002
Between
Applicant
Respondents
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON WEDNESDAY, THE 2ND DAY OF OCTOBER 2002
MR. JUSTICE SMYTH: The reliefs sought in this application are as follows:-
(i) An Order of Certiorari by way of application for Judicial Review quashing the decision of the first-named Respondent that the Notice of Appeal submitted to it by the Applicant was out of time.
(ii) A Declaration that the Decision of the first- named Respondent deeming the Applicant's appeal out of time is ultra vires, void and of no force or effect.
(iii) A Declaration that the first-named Respondent failed to exercise its discretion to admit that appeal.
(iv) A Declaration that Section 13(3 )(b) of the Refugee Act 1996 is unconstitutional.
(v) An Order of Mandamus admitting the Applicant's appeal to the first-named Respondent.
(vi) An injunction restraining the second-named Respondent from deporting the Applicant.
The grounds upon which such reliefs are sought are as follows:-
(i) The first-named Respondent erred in law in deeming the Applicant's appeal from a refusal of refugee status to be outside the time set down for same in Section 13(3)(b) of the Refugee Act 1996.
(ii) The first-named Respondent's decision was arrived at in breach of fair procedures and natural and constitutional justice in all the circumstances.
(iii) In breach of natural or constitutional justice, the first-named Respondent failed to properly exercise its discretion to admit the Applicant's appeal notwithstanding that it may have been late, which is denied.
(iv) If, which is denied, the first-named Respondent has no discretion as aforesaid, Section 13(3)(b) is unconstitutional for failing to allow the Applicant an opportunity to protect and vindicate his fundamental rights, and for failing to afford the Applicant access to justice.
(v) The Applicant is at risk of deportation unless the second-named Respondent is restrained from so ordering.
The factual background to the proceedings is not in dispute. The Applicant, whose stated date of birth is 28th July 1975, is a Kosovar of Muslim religion who was, at the time of his arrival in this State on 4th November 1999, a person who spoke Albanian. He had the assistance of an interpreter when interviewed on 3rd May 2001, in the course of the consideration of his asylum application by the Refugee Applications Commissioner (hereinafter referred to as 'the Commissioner'). He had been able to do or complete some of the Questionnaire, dated 9th November 1999, on his own, but he received some assistance in understanding some questions. He had left school and had different jobs over the decade before arriving in Ireland -- the most significant being that of a shepherd for his grandfather. He did suffer from some ill health during those years and in particular had problems with his spine upon which he consulted a doctor.
The history of his departure from his country of origin is that subsequent to an incident in his home in February 1998, in which he was stabbed by a bayonet by Serbian soldiers, he left Kosova in February 1999. He stated he was effectively forced to do so because he did not join the KLA. He was in favour of peace and opposed to war. He went to Macedonia to "stay with some people" who were Albanian Macedonians. He stayed in Macedonia for four or five months. It would appear that for some two months of the period February-October the Applicant was in hospital. He ultimately paid 4,000DM to an agent and told the agent he was sick.
Reports were prepared by Mr. Neal D. Fleming, an Authorised Officer of the Commissioner, on 14th May 2001, under Section 11(2) of the Refugee Act 1996(as amended) (hereinafter referred to as 'the Act of 1996'), and on 21st May 2001 under Section 13(1) of the Act of 1996. The first of these reports is in the nature of a fact-finding report and the latter is a report of analysis and evaluation upon which is based a recommendation. The nature and extent and differences of function exercised (by Mr. Fleming in this instance) in these circumstances is the subject of an unreported decision of the High Court in Ten and Ors -v- The Minister for Justice, Equality and Law Reform ( 31st October 2001).
The Commissioner, by letter, informed the Applicant that it had been concluded by her that the application was not such as to entitle him to a declaration as a refugee. The letter enclosed not only the documents prepared under Section 11(2) and 13(1), but also the recommendation dated 22nd May 2001, by Mr. John Behan, under Section 17 of the Act of 1996. There is exhibited in the Applicant's own affidavit, in Exhibit 'B', two letters in identical terms, but while each is signed by Mr. John Behan, Higher Executive Officer, one is dated 14th June and the other records "Re-Issued - 29.06.01, First Issued 14/06/2001 ". It is clear from paragraph (4) of the Applicant's affidavit that he received both letters.
The Applicant's explanation of what next happened is best recorded by what is deposed in paragraph of his affidavit:-
"5 . I instructed my solicitors by handing them the papers in the matter on the 5th July 2001, and requested them to appeal the matter on my behalf. I believed that this was all that was necessary from me at that stage and that I did not personally need to take further steps at that stage. I say that my solicitors have informed me that they made efforts to contact me by telephone and letter, but that the said efforts were fruitless. I believe that on my behalf my solicitors faxed a statement of intention to appeal to the first-named Respondent on July 6th 2001."
The solicitor did fax a letter not to the Refugee Appeals Tribunal (hereinafter referred to as 'the Tribunal'), but to the Commissioner, dated 6th July 2001, which is in the following terms:-
"Dear Sirs,
We, yesterday, received instructions from the above named who wishes to appeal the decision of the Refugee Applications Commissioner recommending a refusal of Mr. C.'s application for asylum.
We confirm that we will be writing to you shortly with a completed Notice of Appeal and Grounds of Appeal when we have had the opportunity to take more detailed instructions from our client."
Before addressing the problems that were to be highlighted at a later date, I note that there is no explanation by the Applicant as to why –-
(a) on receipt of the letter of 14th June (if received within fifteen working days of the date of the letter or on the actual date of receipt if earlier) he waited until 5th July to do anything about the letter. He was able to get assistance in relation to the Questionnaire -- why not the letter?
(b) it became necessary to send a second copy or to "re-issue" the original letter when both are sent to the Applicant at the same address;
(c) the Fax Transmission Sheet which refers to 'No of pages – 2 (including this page)', is dated 9th July 2001 (Tuesday), and the fax itself is dated 6th July (the previous Friday);
(d) the Notice of Appeal was not completed to the extent of the information and alleged instructions available;
(e) neither the Applicant nor the legal representative did anything or interest themselves for five months in pursuing the matter. If the legal representative did, clearly there was no response from the Applicant and he gives no explanation as to the matters referred to in paragraph (5) of his affidavit in that regard. The Supreme Court, in In Re: The Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360, made it quite clear, albeit in the context of the reference to it of sections 5 and 10, that the role of an applicant for asylum is not a passive role. Where the legal requirement in terms of time is expressed in days, responsibility for inactivity or delay of months cannot, in my judgment, be transferred in the manner referred to in the affidavit. It is clear that the Applicant realised he had to have an input into the appeal -- even if nothing else but to sign the Notice of Appeal;
(f) when the Applicant called to the solicitors on 17th December 2001 (Monday), why the Notice of Appeal was not signed until 21st December 2001 (Friday). The solicitor's letter seeks to deal with this issue, thus:-
"Unfortunately, Mr. C. did not attend at this office again for the purpose of completing a notice of Appeal until 17th December and the appeal was finally signed today, 21st December ."
(g) how the Applicant and/or the solicitor could have had any doubt that the Notice of Appeal required to be signed by the Applicant when the form of Notice of Appeal in possession of both at latest in their hands on 5th July makes it clear and expressly provides a designated detail for the Applicant's signature.
The response of the Tribunal on receipt of the "appeal" -- and it is clear that the solicitors had concerns as to its status for they concluded their letter of 21st December , to the Tribunal, by stating "You might please confirm that this notice will be deemed proper Notice of Appeal by the Refugee Applications Commissioner" -- on 31st December 2001, was to inform the solicitors that the Tribunal could not accept the appeal as it was received outside the permitted time limit. The letter indicated that the Commissioner had been notified of the Tribunal's decision and that the Commissioner would make arrangements with the Respondent Minister recommending that the Applicant be refused a declaration as a refugee.
These proceedings issued on 21st January . In an obvious attempt to find resolution before the return date for the proceedings of 26th February 2002, the Applicant's and Respondents' solicitors were in communication which concluded with a letter from the Chief State Solicitor, for the Respondents, to the Applicant's solicitors in the following terms:-
"Dear Sirs,
I refer to the above matter.
In certain circumstances, the Refugee Appeals Tribunal may be willing to admit an applicant to the appeals process, in spite of that applicant having lodged his or her appeal outside the statutory time limit for doing so. The Refugee Appeals Tribunal takes the view that in certain circumstances, it would be reasonable to regard an applicant as having been prevented from proceeding with an appeal as a result of 'force majeure' or impossibility of compliance. Such circumstances would arise where applicants find themselves in a situation where, although they had done all that was expected of them, through no fault of their own, and having been failed by their lawyers, they were prevented from filing their appeals in time and having a determination made.
In this regard, before the Refugee Appeals Tribunal would give consideration to accepting a late notice of appeal, there would have to be clear and cogent evidence that the applicant had done everything in his or her power to appeal within the statutory time limit and was prevented from exercising his or her right of appeal by error, made or occurring in good faith, on the part of the applicant's lawyers which had occurred without any default on the part of the applicant and no other adequate remedy being available to the applicant.
I am instructed to advise that in the absence of any further relevant information being furnished by way of sworn affidavit of your client or his solicitor, the Refugee Appeals Tribunal is of the view that there is not clear and cogent evidence that your client found himself in a situation where although he had done everything expected of him, he was prevented from filing his appeal in time through no fault of his own. In particular, it is noted that your client does not appear to have taken any steps in relation to his appeal between 5th July 2001 and 14th December 2001, nor does he appear to have made any response to your firm's efforts to contact him during this period. As a result, your client's notice of appeal was received approximately five months outside the statutory time limit."
Mr. Power, for the Applicant, submitted that:-
(1) There was no prejudice to the Respondents or either of them in permitting the appeal to be entertained by an extension of time, particularly given the fact that no Deportation Order had been made and no decision to do so had been signified -- time should be extended.
(2) That the period between the date of arrival in the State in November and the determination of the first instance decision of the Commissioner in May/June 2001, a period of some eighteen months, gave rise to a legitimate expectation (if not indicated) of a time scale that could be anticipated for the appeal procedure.
(3) That the Commissioner was or must have been aware of the possibility of appeal, or failing such knowledge, concerned that her recommendation should be given effect to. In this context he referred to McGonagle -v- -McGonagle [1951] Ir. Jur. Rep. 17.
(4) That even if the statutory scheme is applicable as it stands, the Applicant's case falls within the collateral ad misericordiam scheme operated by the Tribunal, particularly so in this case in the light of the knowledge of the Applicant.
Ms. Moorehead's submissions for the Respondents were:-
(1) It is not a matter of prejudice -- there must be a fair, clear, consistent application of the policy of the asylum and immigration system. The policy as identified by the Supreme Court in, In Re: Illegal Immigrants (Trafficking)Bill [2000] 2 IR 360 at 393, is concerned with finality and timely and effective administration decisions. It was nil ad rem to refer to a Deportation Order. Once proceedings issued it would be contrary to principle to proceed to issue a decision on foot of the Commissioner's recommendation. The making of a decision on status and the invocation of Section of the Illegal Immigrants Act 1999(hereinafter referred to as 'the Act of 1999) represents a seismic shift in (a) the status of the Applicant, and (b) the basis upon which he may remain in the State (per Hardiman J delivering the judgment of the Supreme Court in PB and L -v- The Minister for Justice, Equality and Law Reform [2002] 1 ILRM 28.
(2) That legitimate expectation does not arise -- there was no representation made to the Applicant upon which he could be said to have acted in a manner that in a disappointment he could legitimately, or on any principle of fairness, claim he was dealt with unjustly. The Applicant's case was clearly distinguishable from Fahik,
(3) McGonagle -v- McGonagle is not in point. In the instant case, the fax dated 6th July was not sent to the Tribunal but to the Commissioner. The Commissioner is not a party to the proceedings. The Commissioner and the Tribunal are separate and independent of each other with different functions and powers. The failure to lodge the appeal was not inadvertence.
(4) The statutory scheme, whereby Section 23 of the Act of 1996 empowered the Respondent Minister to make regulations, led to the sealing of the Refugee Act 1996 (Appeals) Regulations 2000 (SI No. 342 of 2000). Regulation 3, dealing with the business of the Tribunal, provides:- "The Tribunal shall, in arranging its business, have regard to the desirability of disposing of appeals with due expedition consistent with fairness and natural justice."
Part of the Regulations which treats of appeals against a recommendation that Applicant should not be granted refugee status; what follows under this heading is a series of detailed regulations dealing with matters of appeal. The terms of Regulation 9, in particular, are mandatory in tone and terms. It was said that, though allowing for the differences peculiar to the subject matter, the approach of the courts in planning matters was in point. There, prior to the enactment of the Local Government (Planning & Development) Act 1992, Section 4(1), which provided that all appeals which failed to comply with the specific requirements of that sub-section are invalid by sub-section (2), Keane J (as he then was), in the High Court, in The State (Walsh)-v- An Bord Pleanala (Record No. 1980 / 328SS - unreported 19th November 1980), and the Supreme Court in The State (Elm Developments Limited)-v-An Bord Pleanala [1981] ILRM 108, held that an appeal which failed to include in writing the grounds of the appeal was not necessarily on that account invalid.
The Supreme Court, in PB and L, referred to earlier in this judgment, upheld the form of Deportation Order (the form, content, reasoning in and for, all of which were challenged) is in SI No.319 of 1999. I am satisfied and find as a fact and as a matter of law that the letter/fax dated 6th July 2001 was not a valid appeal within the terms of the Regulations made under the Act of 1996.
(5) The Applicant did not bring himself within the collateral ad misericordiam scheme operated by the Tribunal. The Applicant either made no contact with or the solicitor had no address for the Applicant and the Applicant had not made or attempted any renewed meeting with the solicitor for a period of five months. While I accept that a right of access to a tribunal or other adjudicative mechanism established by the State is just as important and fundamental as a right of access to the ordinary courts, a view that has been expressed in this jurisdiction on several occasions and is most recently expressed in the adjoining jurisdiction in R -v- The Secretary of State for the Home Department ex parte Saleem [2001] 3 WLR 443, per Hale LJ, at p. A, nevertheless I have considerable reservations as to whether the Tribunal has any jurisdiction to operate a collateral ad misericordiam scheme of affairs within it is "consistent with fairness and natural justice" per Regulation 3 of SI 342 of 2000. This is confer upon the Tribunal a jurisdiction that was left for the Minister to impose by way of regulations and he has not done so. I draw particular distinctions between cases where time limits are imposed which are definitive and those which have a second opportunity adjudicative mechanism, as in cases of an appeal to the Tribunal under the Dublin Convention, which merely establishes in which venue the asylum application shall be determined, and those such as the present case where the matter is to be determined as a result of the appeal or non-appeal to the Tribunal.
In the instant case, the letter of 14th June 2001 was received by the Applicant, and it would appear to be so, then he had a period of in excess of three weeks within which to appeal. The letter of notice of the determination of the Commissioner is quite clear and unequivocal in its terms, which are as follows:-
"You may appeal against this recommendation within 15 working days of the date of this letter. Your appeal must be submitted, on the enclosed Notice of Appeal, to the Refugee Appeals Tribunal, 6/7 Hanover Street, Dublin 2(fax No.01 474 xxxxx ) and the grounds for the appeal must be specified. A copy of all supporting documentation/evidence relating to your application must also be furnished to the Tribunal with your Notice of Appeal. The Notice of Appeal must specify the grounds for the appeal and also indicate whether you wish the Tribunal to hold an oral hearing for the purposes of the appeal. An information leaflet setting out the Appeals process is enclosed.
If you do not appeal this decision within 15 working days of the date of this letter, the report of the findings on your application will be forward to the Minister for Justice, Equality and Law Reform, together with the recommendation that you should not be declared a refugee. The Minister will then make a decision on your application having regard to the recommendation and will be in contact with you concerning your position in the State."[Emphasis added]
The appeal decision in the Saleem case was concerned with an appeal period of five days in the context of the Immigration Act 1971 in England and the Asylum Appeals (Procedures) Rules 1996 in the same jurisdiction. The court was concerned that the regulations in England might deny the chance to appeal to a party who, through no fault of his own, had failed to comply with the five-day rule; that such a rule was not necessary to achieve timely and effective disposal of appeals and might well deny an asylum seeker the objective of the just disposal of his appeal; that, insofar as it purported to determine conclusively the moment at which an asylum seeker received notice of the special adjudicator's determination for the purpose of starting the five- day period for applying for leave to appeal under Rule 3, was invalid. This is not such a case. Here, there was no question of the Applicant not having received notice -- it was a question of having received notice, taken the papers to his solicitor and nothing having happened, he, not having attempted to stay in touch with his solicitor and process the appeal in terms of the clear requirements of the statutory instrument, the leaflet giving the information and the letter giving notice.
In my judgment, the rule as framed in the statutory instrument is not unreasonable. There is a safeguard in Section of the Act of , in the case of a situation where someone is served with notice of a particular decision but does not receive it. If the deemed provisions are not met on the basis of evidence, then rebuttal evidence can be introduced and the matter can be adjudicated upon by the court. In the instant case, this is not the case of an envelope that was wrongly addressed or documentation sent to the wrong address or not having been received. Put very succinctly by Mummery LJ, at p. 452, in the Saleem case:-
"If the party could prove that he had not actually received notification of the determination, it would follow that it was impossible for him to consider whether or not he was dissatisfied with it or to consider whether or not to exercise his right of appeal."
In the instant case, the documentation was received, it was clear that an appeal lay, it was clear that a period of time had to be complied with. There is no reasonable excuse or explanation given as to the matters referred to in paragraph (5) of the Applicant's affidavit and, in my view, notwithstanding the somewhat generous view taken by the Tribunal in exercising "its jurisdiction" under Regulation , I am quite satisfied this is not a case in which leave to apply for judicial review should be granted or any of the reliefs sought should be accorded a second or a third opportunity for ventilation.
END OF JUDGMENT