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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A. (R.) v. Minister for Justice, Equality and Law Reform [2001] IEHC 213 (21 November 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/213.html Cite as: [2001] IEHC 213

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THE HIGH COURT

2001 No. 478 JR

BETWEEN

R. A.

APPLICANT

ANDHE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM,HE REFUGEE APPEALS AUTHORITY AND HE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

JUDGMENT of Mr. Justice T.C. Smyth delivered 21st day of November, 2001.

1.      It is averred by Anke Boehm that the Applicant arrived in Ireland on 7th December, 2000 having left Nigeria of which she is a National. The Applicants date of birth is the 15th August, 1971. The Applicant completed a standard application form claiming refugee status and is stated to have been interviewed. This is a normal procedure, but there is no documentary evidence before the Court that any interview took place, nor is there exhibited any interview notes or report. The Applicant is stated to have been photographed and had her fingerprints taken.

2.      In answer to queries in the Questionnaire form dated 10th December, 2000 the following information is given:-

“57 If no valid passport or ID held, please explain circumstances -

Nigeria to France.

France to Dublin.

69 Have you ever claimed asylum in any of the transit countries or in any other country? Give details.

No.

70 If your answer was No, why not?

I don’t know.”

3.      The Affidavit avers that as a result of the said interview on the 12th December, 2000 requests were made to member states parties to the Dublin Convention under Article 15 thereof concerning the identity of the Applicant since specifically whether the United Kingdom had information on the individual. The response from the United Kingdom dated 12th March, 2001 stated that the fingerprints supplied from Ireland matched a person known in the UK as O T, having a date of birth of the 16th July, 1967 who arrived in the United Kingdom on the 4th April, 1999 accompanied by a small child and claimed asylum there. She had being categorised as an absconder since the 7th July, 1999. On the basis of this information a formal request was made on the 16th March, 2001 from the office of the Refugee Applications Commissioner (hereinafter called the Commissioner) calling on the United Kingdom to take charge of the Applicant under the Dublin Convention and to admit her to the United Kingdom for the purposes of examining her case for asylum. Initially this request was refused on the 19th March, 2001 but eventually the request was acceded to on the 18th April, 2001.

4.      The Commissioner by letter dated 20th April, 2001 informed the Applicant of her determination, that the Applicant’s application for refugee status is one that should be determined by the United Kingdom in line with the provisions of Article 8 of the Dublin Convention. The reason for the determination is given in the letter as is the information referable to appealing such a decision. A form of Notice of Appeal was sent with the letter. A point is taken on behalf of the Applicant that the incorrect form was forwarded with this letter. The correct form is that referred to in the Third Schedule to the Dublin Convention (Implementation) Order, 2000 (SI No. 343 of 2000) which in its heading refers to Article 3(1)(c) of the Dublin Convention (Implementation) Order, 2000. In fact the form forwarded to the Applicant was headed “Section 12(1)(b) of the Refugee Act, 1996 (as amended)”. The forms and the information they are designed to elicit are substantially the same. Furthermore, it is quite clear that the Applicant’s appeal, (received on the 24th April, 2001) is (a) in time, (b) fully focused and no confusion or detriment was suffered by the Applicant as a result of the furnishing of the incorrect form. Indeed the Applicant’s grounds of appeal are quite clear:-

“I want my case to be determined in Ireland. I don’t want any transference to UK on the ground that I applied for an asylum status in Ireland and I want my case to be dealt with in Ireland, not UK.”

5.      I am satisfied and find this as a matter of fact and of law that applying the dictum of Henchy J. in Monaghan U.D.C. -v- Alf-a-bet Promotions Limited (1980) I.L.R.M. 64 at p. 69 that the issuance of the incorrect form in the instance case can be considered as de niminis.

6.      It transpired during the hearing that pertinent correspondence had not being adduced by the Applicant in evidence. This revealed that by 27th April, 2001 (at least) the Refugee Legal Service had been contacted by the Applicant and it had the letter of 20th April, 2001. The letter made it clear that the Applicant sought legal representation in respect of her appeal but that the Refugee Legal Service was at that time unable to provide such service; the letter of 27th April, 2001 was addressed to the Commissioner.

7.      By letter dated 1st May, 2001 the Refugees Appeals Tribunal (hereinafter referred to as the Tribunal) wrote to the Applicant directly and (inter alia) stated:-

“Please note that your appeal is now being dealt with in accordance with the provisions of the Refugee Act, 1996 (as amended) and the Dublin Convention (Implementation) Order, 2000.”

8.      This letter appears to be that (or the same) as that referred to as of 2nd May, 2001 by the Refugee Legal Service as dated 4th May, 2001 addressed to the Tribunal which requests a copy of the papers of the Applicant in regard to the asylum appeal. The letter goes on to reserve the right to make an additional statement of facts and grounds. A decision was made by a member of the Refugee Appeals Tribunal dated 21st May, 2001 but not issued on that day or date. It refers to the letter of the 27th April from the Refugee Legal Service. By letter dated 24th May, 2001 the Tribunal forwarded to the Refugee Legal Service “a copy of your clients file as requested”. There does not appear to have been any response to this letter and by letter dated 15th June, 2001 the Tribunal sent to the Refugee Legal Service a copy of the decision of the Tribunal which found that the United Kingdom is the member state responsible for accepting or taking back the Applicant under Article 8 of the Dublin Convention’. No response was made by the Applicant or on her behalf after receipt of the letter of the 15th June, 2001 (accordingly under Article 15(4)) of SI 343 of 2000 it is deemed to have been duly served on 18th June, 2001. By letter dated 27th June, 2001 (to which was annexed a Deportation Order) the Minister of Justice, Equality and Law Reform (hereinafter referred to as the Minister) requested the Applicant to present herself at a Garda Station, Co. Tipperary on the 3rd July, 2001 to enable arrangements for her removal from the State.

9.      On 12th July, 2001 papers were lodged in Court to ground an application for leave to apply for Judicial Review. Such application contained no reference to relief by way of extension of time application. The return date on the application was 30th July, 2001 and no application for extension of time was made.

10.      An application dated 15th November, 2001 seeks relief by way of amendment to the Notice of Motion dated 12th July, 2001 and an extension of time for bringing Judicial Review proceedings against the Commissioner and the Tribunal and other relief by way of technical amendments and also the substitution of the basis of claim (in parts of the relief) from Article 9 to Article 8 of the Dublin Convention. Much argument is centred on the substantive case - which I permitted to be argued in full to gain a full appreciation of a favourable outcome on the extension of time for the Applicant. It was contended that the Applicant always asserted an unambiguous identity and that before the decisions of the Commissioner and the Tribunal, she sought to have been given an opportunity of contesting or testing (a) the fingerprint evidence, and (b) the alleged different identity evidence, and that fair procedures so demanded, because they had adverse determinations reflected on her creditability in this jurisdiction and perhaps eventually in the United Kingdom.

11.      The Respondents’ contentions were that at no stage in the entire process from the 10th December, 2000 to date has the Applicant ever signed a sworn statement as to her identity, most particularly between June, 2001 and the matter being moved in Court. The Applicant made no positive denial in April or May, 2001 (at least before the Tribunal decision issued on the 15th June, 2001) of the considered ambiguity, there was no denial upon the information which had emanated from the United Kingdom. It was further contended that there has been no adjudication on the refugee status of the Applicant. Accordingly, the only issue which has been determined is the member state within which the refugee status of the Applicant is to be determined.

12.      The time limit of 14 days within which to bring Judicial Review proceedings under Section 5(2) of the Illegal Immigrants (Trafficking) Act, 2000 may only be extended if there is good and sufficient reason. Mindful of the decision of the Supreme Court on the reference of the Bill of 1999, (2000) 2 IR 360 and more recently in Stefan -v- The Minister for Justice, Equality and Law Reform, the Refugee Appeals Authority, Ireland, the Attorney General, (Unreported, 13th November, 2001) and the decision of Finnegan J. in Benson -v- The Minister for Justice, Equality and Law Reform and Others (Unreported, 2nd April, 2001) on the questions of extensions of time and fair procedures in Judicial Review, I am satisfied and find as a fact as a matter of law that the Applicant has not adduced evidence of good and sufficient reason to warrant an extension of time to challenge the decision of the Commissioner or the decision of the Tribunal. These decisions could have been challenged within the time limit (and even if not strictly within 14 days of their determinations) very much earlier than is attempted.

13.      Had it been relevant I would have permitted the technical amendment, refused the substantive amendment from Article 9 to Article 8 and disallowed the amendment of the Notice of Motion of 12th July, 2001. The time bar cannot be circumvented in this manner.

14.      In the final analysis the observation of Henchy J. in the State (Abenglen Properties Limited) -v- Dublin Corporation [1984] I.R. 381 at 401 seems apposite:-

“...the grant of Certiorari is a matter of discretion, and it does not seem to me that it would be a proper exercise of the Courts discretion to grant Certiorari when the sole purpose of the quashing is the attainment of an object which is legally unattainable.”

15.      The Ministerial decision in suit is made within jurisdiction and cannot be said to contain an error on the face of the record.

16.      The following is my determination of this application:-

1 Dismiss the extension of time application.

2 Amending grounds application does not arise.

3 The substantive case cannot proceed in the absence of an extension of time even if permitted to proceed as framed the case would be incapable of producing the result desired by the Applicant and is moot.