The High Court has refused an asylum applicant’s request to add a new challenge to the refusal of his subsidiary protection application, ruling that the proposed amendment was brought after inordinate and inexcusable delay.
In a judgment delivered on 7 March 2014, Mr Justice McDermott also refused to extend the time for bringing the application. The applicant, identified as S.J., had sought to argue that the Minister for Justice failed to give him an effective hearing because the subsidiary protection decision relied on credibility findings made earlier by the Refugee Appeals Tribunal, without a separate assessment. He also proposed arguing that the deportation decision was affected by that procedure.
The court was considering only whether to allow the amendment and extend time. It did not decide the merits of the proposed challenge to the subsidiary protection decision or deportation order.
S.J. and his wife, A.G., Nigerian nationals, arrived in Ireland in August 2008 and applied for asylum. Their applications were refused following adverse credibility findings, and the Refugee Appeals Tribunal affirmed the recommendations in June 2009. S.J.’s application for subsidiary protection was refused in October 2009, and a deportation order was made later that month. His original judicial review proceedings challenged several decisions, but the proposed new ground was not included.
The applicant said the amendment was based on later case law, including a 2013 High Court judgment concerning the need for a distinct subsidiary protection procedure. He also said his lawyers had delayed filing the motion while related appeals were pending. The Minister objected, arguing that the new challenge came years after the subsidiary protection decision and only days before the scheduled hearing.
Justice McDermott found the explanation for the delay insufficient. He noted that the relevant legal issue had been available for some time and that the applicant had waited until shortly before a “telescoped” hearing, at which leave and the substantive judicial review were to be considered together. The proposed amendment would transform the case from a challenge dependent on overturning earlier asylum decisions into a new substantive challenge to the subsidiary protection decision, the judge said. Allowing it at that stage would be unfair to the respondents.
The court distinguished an earlier case in which an amendment had been permitted, noting that the applicant in that case had raised a related challenge from the outset. It refused both the extension of time and the requested amendment, concluding that granting them would not be in the interests of justice.
The judgment records that A.G. had returned voluntarily to Nigeria and that her proceedings were struck out by consent in July 2013. The ruling concerned S.J.’s amendment application; it did not determine the underlying asylum or protection claims.