The High Court refused an applicant’s request to extend time to seek leave for judicial review of a recommendation that he should not be declared a refugee. The court said his complaint about the handling of information from the UNHCR was arguable, but found that the reasons given did not excuse the delay.
The applicant sought to challenge a recommendation notified to him on 26 July 2016. He argued that the Refugee Applications Commissioner relied on an April 2016 UNHCR letter stating that biometric data was not held in relation to him at a refugee camp in Malawi, without first giving him the letter to comment on. He also said the decision wrongly recorded that the letter had been submitted by him, when it had been obtained directly by the Commissioner.
The Commissioner argued that the letter was only a minor part of the assessment of whether the applicant was from Burundi or Malawi. The respondent also said the applicant had not sought the information himself and that the decision considered the core elements and credibility of his claim. The judgment records that the applicant later received an email from UNHCR saying it had biometric data, but that the data was not put before the court.
Justice O’Regan found the complaint about the letter arguable. She said leave would have been appropriate but for the delay. The application was heard on notice to the respondent after first being brought ex parte.
The applicant had 28 days to bring the judicial review proceedings and needed an extension of five times that statutory period. The court noted that he did not seek legal advice until 26 October 2016, despite being given information about available legal services. It found no evidence explaining why he had not sought advice earlier, and considered the explanation for the further delay inadequate, including the period after a November 2016 judgment that counsel said might assist his case.
The judge also said the arguable nature of the proposed challenge did not outweigh the other considerations. She saw no injustice in refusing more time, noting that biometric information was not yet available and that an appeal was being processed. The application to extend time was refused. The court did not grant leave for judicial review or determine the underlying challenge to the refugee recommendation.