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Cite as: [2001] IEHC 185

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O. (K.J.) v. Minister for Justice, Equality and Law Reform [2001] IEHC 185 (23rd November, 2001)

THE HIGH COURT
2001/16242P
2001/745JR
IN THE MATTER OF AN APPLICATION FOR INJUNCTIVE RELIEF
BETWEEN
K. J. O.
APPLICANT
AND
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, OFFICE OF THE REFUGEE APPLICATIONS COMMISSIONER, COMMISSIONER OF AN GARDA SIOCHÁNA, GOVERNOR OF MOUNTJOY PRISON, ATTORNEY GENERAL AND IRELAND
RESPONDENTS
JUDGEMENT of Mr. Justice T.C. Smyth delivered the 23rd day of November, 2001

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

recommendation that the Applicant was not a person entitled to refugee status. This information and the right of appeal of the Applicant to the Refugee Appeals Tribunal (hereinafter referred to as the Tribunal) was set out in a letter dated 20th April, 2001. The point in issue in this application centres on the fate of this letter. All other correspondence and documentation sent prior to 20th April 2001 addressed to the Applicant at his notified address and all other documentation sent to him other than this letter (and its enclosures) whether by registered post or prepaid ordinary post was received by him at his notified address after that date.

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:-

“Please be advised that this is an open letter. We must (sic) produce this letter in any High Court proceedings were we would be so instructed or in any other proceedings which we would deem appropriate to Mr. O’s circumstances”

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:-

“... We are anxious to ensure that Mr. O. was informed of his right to appeal as provided by both the Refugee Act, 1996 (as amended) and the relevant international law.”

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

referable to the Commissioner or the Tribunal. There was clearly a want of appreciation of that information as it is clear from the letter of 23rd October, 2001 from the Minister to the Applicant’s Solicitor.

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:-

“In short the word “sent” in Section 6(b) means sent not received. A similarly word of provision in the United Kingdom Immigration Appeals (Notices) Regulations, 1972, Regulation 6 was considered by the Court of Appeal in R -v Secretary of State for the Home Department ex parte Yeboah (1987)3 All E.R. 999 and it was there held that sent meant sent not received and that the notice was effectively given when the notice was sent. Section 6(b) of the Immigration Act, 1999 must be accorded the like interpretation.”

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:-

“.... It must be observed that a person seeking asylum or refugee status is the Applicant for that status. There is an administrative procedure in place to carry out and assist him or her in the processing of that application. He or she is not a passive participant in that process. It is not unreasonable for the state to require that such a person accept that an address given by him or her to the Minister or furnished by him or her specifically of an address for service should be one at which service by a form of recorded delivery should be deemed good service. In availing of such procedures and in exercising any discretion in relying on such procedures the state is bound to act with due respect to the constitutional right of excess to the Courts and the right to fair procedures of the persons concerned.” (emphasis added)

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.


© 2001 Irish High Court


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URL: http://www.bailii.org/ie/cases/IEHC/2001/185.html