THE SUPREME COURT

Denham J.
McGuinness J.
Fennelly J.

Record No. 164/2001

BETWEEN/
S.
							APPLICANT/APPELLANT

and

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM,
THE INTERIM REFUGEE APPEALS AUTHORITY,
IRELAND, THE ATTORNEY GENERAL
									RESPONDENTS

Judgment delivered on 5th March, 2002 by Denham J. [Nem Diss.]

1.	This is an appeal by the Applicant against the refusal of Finnegan J. (as he then was) on the 10th May, 2001 to grant an extension of time to apply for leave to apply for judicial review.

2.	This court has determined that the decision of the High Court refusing an extension of time is appealable: B and S v. Minister for Justice, Equality and Law Reform, Unreported, Supreme Court, 30th January, 2002.

3.	The relevant statute law is to be found in s. 5 of the Illegal Immigrants (Trafficking) Act, 2000.  It provides that a person shall not question the validity of a variety of decisions:
“Otherwise than by way of an application for judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986) . . .”

There is a time limit of 14 days to make such application unless there is good and sufficient reason.  S. 5(2)(a) of the said Act states that the application for leave to apply for judicial review shall:

“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, . . .”

4.	In this case the High Court held:

“The Applicant was refused refugee status on the 1st March, 2000 and on appeal to the Appeals Authority his appeal was rejected and he was notified of this by letter dated 17th November, 2000.  On the 21st November, 2000 the Applicant contacted his solicitor for an appointment and an appointment was made for the 22nd November, 2000.  Following a consultation a brief was prepared for Senior Counsel and sent to him on 24th November, 2000.  By fax dated the 28th November, 2000 Senior Counsel sought further instructions.  On 30th November, 2000 the Applicant contacted his solicitor and a consultation with Senior and Junior Counsel was arranged for 6th December, 2000 and a day or two thereafter Senior Counsel furnished his advice.  The Applicant’s solicitor was abroad on holiday from the 7th December, 2000 to 12th December, 2000.  A Motion was issued seeking an extension of time on the 22nd December, 2000.  In these circumstances there are two relevant periods of delay i.e., from the 29th November, 2000 to the 6th December, 2000 and from the 8th December, 2000 to the 22nd December, 2000.  In respect of the first period I take into account that it included a weekend and I so regard the delay as extending to 5 working days only. As to the second period I am prepared to discount a period of 7 days during which the Applicant’s solicitor was on holidays.  However the fact that this delay was incurred placed a heavy onus on the Applicant’s solicitor to act with expedition on his return from holidays.  I have been furnished with no explanation or excuse in respect of the 10 day period of delay from 12th December to the 22nd December, 2000.

The policy underlying the provisions contained in the Illegal Immigrants (Trafficking) Act, 2000 Section 5 is that a challenge to a relevant decision must  be made promptly and I am not satisfied that this had been done in the present case.  The delay however cannot be attributed in any way to the Applicant it resulting entirely from delay reasonably incurred in obtaining the advice of Senior Counsel and acting upon that advice and to delays which occurred in the solicitors office.  However 5 days of the first period of delay and 10 days of the second period of delay are neither explained nor excused.  While I distinguish personal blameworthiness on the part of an Applicant and the default of his solicitor the latter alone will not generally be sufficient to persuade the Court to exercise its discretion in favour of an Applicant.  Having regard to the policy underlying the strict time limits imposed by the Illegal Immigrants (Trafficking) Act, 2000 Section 5(2)(a) the delay is excessive.  I have considered all the other matters listed above and nothing arises on foot of the same to influence me to exercise my discretion in favour of the Applicant.  Accordingly I refuse to grant extension of time.

Insofar as the application is pursuant to the Rules of the Superior Courts Order 84 Rule 21 the Applicant seeks to challenge the decision refusing him refugee status made on the 1st March, 2000.  The Applicant has failed to satisfy me that there is good reason for extending the period within which the application should be made and accordingly I refuse to extend time to enable this decision to be challenged.  The decision on appeal is also sought to be challenged.  This was made on the 31st July, 2000.  As the relief sought is Certiorari the relevant period prescribed by Order 84 Rule 21 is 6 months.  The Motion seeking an extension of time issued on 12th December, 2000 and I consider this to be the date to which I should have regard.  As this date is within the period of 6 months from the date of the decision sought to be impugned I propose extending time to enable the Applicant to apply for leave in relation to the decision of 31st July, 2000.  I extend the time to Friday next for the issue of a Notice of Motion.”

5.	The Applicant thus has obtained leave to apply for judicial review of the decision of the Appeals Authority made on the 31st July, 2000.  This is an important factor in the case.

6.	On the appeal commencing before this court Mr. John Traynor, S.C., counsel for the Applicant, informed the court that it was not intended to proceed with the appeal in relation to the refusal of refugee status made on the 1st March, 2000,  Consequently, the only appeal before the court was the refusal to extend time within which application can be made for judicial review of the decision notified by letter dated the 17th November, 2000 and received by the Applicant on the 20th November, 2000.

7.	The delay in issue in this case is that instead of moving within the 14 days required by statute there was approximately a two week delay, the notice of motion seeking the extension of time was dated the 22nd December, 2000.  Thus the delay in issue is approximately twice that set down by statute - but still only a matter of weeks.  This margin of delay is an important factor in considering the application.

8.	The issue as to  the merits of the Applicant’s case are coloured in this instance, to his advantage, by the fact that he already has obtained leave to judicially review the decision of the Appeals Authority of the 31st July, 2000.  If that were to be successful it would be introducing a total degree of unreality to refrain from considering the order referred to in the letter dated the 17th November, 2000.  That order is based on the recommendation of the Appeals Authority which is under review.  Thus there is a degree of unreality in the circumstances of this case in permitting judicial review of a recommendation but not of the order that subsequently is based on the recommendation.  Once the learned High Court judge allowed the challenge to the recommendation of the 31st July, 2000 it is logical that the 
Applicant challenge also the subsequent order.

9.	There is another factor which is relevant.  The Act of 2000 came into effect on the 5th September, 2000.  Thus this is a case which straddles a time of transition in the law.

10.	There is no doubt that the Applicant formed the intent to appeal within the time to appeal.  This is described clearly in the facts of the case.

11.	The delay in issue is essentially delay by legal advisors.  Legal advisors have a duty to act with expedition in these cases.  In general delay by legal advisors will not prima facie be a good and sufficient reason to extend time.  Circumstances must exist to excuse such a delay and to enable the matter to be considered further.

12. 	The Applicant in this case has an arguable case - as has been illustrated in part already by the previously described grant of leave.  Thus he has met an aspect of the test.  As Hardiman J. stated in G.K. and Ors. v. The Minister for Justice, Equality and Law Reform and Ors. Unreported, Supreme Court, the 17th December, 2001 in analysing the statute law:

“I believe  that the use of the phrase ‘good and sufficient reason for extending the period’ still more clearly permits the Court to consider whether the substantive claim is arguable.  If a claim is manifestly unarguable there can normally be no good or sufficient reason for permitting it to be brought, however slight the delay requiring the exercise of the Court’s discretion, and however understandable it may be in particular circumstances.  The Statute does not say that the time may be extended if there were ‘good and sufficient reason for the failure to make the application within the period of fourteen days’.  A provision in that form would indeed have focussed [sic] exclusively on the reason for the delay, and not on the underlying merits.  The phrase actually used ‘good and sufficient reason for extending the period’ does not appear to me to limit the factors to be considered in any way and thus, in principle, to include the merits of the case.

On the hearing of an application such as this it is of course impossible to address the merits in the detail of which they would be addressed at a full hearing, if that takes place.  But it is not an excessive burden to require the demonstration of an arguable case.  In addition, of course, the question of the extent of the delay beyond the fourteen day period and the reasons if any for it must be addressed.”

13.	The policy of the Illegal Immigrants (Trafficking) Act, 2000 is stated clearly therein.  The policy was fully analysed in the reference: In Re The Illegal Immigrants (Trafficking) Bill, 1999 [2000] 2 IR 360.  Thus a stringent time limit within which to apply for judicial review is valid, however it is balanced by the discretion given to the court to extend time where there is good and sufficient reason.

14.	I am satisfied that there are good and sufficient reasons in the circumstances of this case to extend time for the application for judicial review.  The circumstances, factors, in this case are as follows: that the Applicant already has leave to apply for judicial review of the decision of the Appeals Authority made on the 31st July, 2000, that the extent of the delay is short, i.e. a matter of weeks; that the case straddles a time of transition in the law; that the reasons for the delay are largely the culpability of legal advisors, that the State is not prejudiced by the delay.

15.	I would allow the appeal and extend the time within which to apply for judicial review.