The High Court made no order as to costs in a judicial review concerning the proposed transfer of an anonymised applicant to the United Kingdom under the Dublin III Regulation.
The applicant’s protection claim was referred for transfer by the Refugee Applications Commissioner in October 2015. The Refugee Appeals Tribunal upheld that decision in March 2016. The judgment said the applicable transfer period was six months, or 18 months if the applicant had absconded.
A registered letter required the applicant to report on 15 March 2016. He did not report, and the letter was returned uncollected. In September 2017, the applicant obtained an injunction preventing his transfer while the matter returned to the asylum list. By the time the High Court considered the case, the parties agreed that the transfer could no longer be carried out. The sole issue before the judge was costs, with each side seeking an award against the other.
The respondents argued that the applicant had brought about the situation by failing to collect the letter and that material information had not been disclosed when the injunction was sought without notice to the other side. The applicant disputed those arguments.
On the letter, the judge found it more likely than not that the applicant received notice of its attempted delivery but did not collect it. The judgment noted that the applicant’s counsel had no instructions that he had not received that notice. The judge concluded that the 18-month period had expired because the applicant failed to collect the letter, and refused costs to the applicant on that ground.
The judge also found that the earlier court had not been told that the applicant omitted to collect the registered letter. Although the judge accepted assurances that the applicant’s solicitors and counsel did not know of the matter, he found on the balance of probabilities that the applicant did know. The judge rejected the submission that the omission was irrelevant to the earlier application for discretionary relief and refused costs on this ground as well.
After considering all factors under Order 99 of the Rules of the Superior Courts, the High Court made no order as to costs. The judgment addressed costs only; it did not make a new order transferring the applicant to the UK.