The High Court has refused a child’s application to quash a Refugee Appeals Tribunal decision treating her refugee appeal as withdrawn after no response was received to a notice asking whether she wished to continue it.
The applicant, born in Ireland in 2009, brought the judicial review through her mother and next friend. Her appeal followed a recommendation by the Office of the Refugee Applications Commissioner (ORAC) in May 2010 that her refugee application be refused. The appeal had been lodged in the wrong form and without grounds. The Tribunal later sought a corrected form and grounds, but received no response to a July 2014 request.
On 1 March 2016, the Tribunal again sought the required material. After the applicant’s then solicitors said they were seeking updated instructions, the Tribunal sent a notice on 10 March under section 16(2B)(a) of the Refugee Act 1996. It said the appeal would be deemed withdrawn unless the applicant indicated within 15 working days whether she wished to continue. The deadline was 5 April.
The Tribunal separately notified the applicant, her mother and solicitors on 22 March of an oral hearing listed for 7 April. The applicant’s account was that she learned on 24 March that her previous solicitors could no longer act and instructed new solicitors on 29 March. No response to the 10 March notice was sent by the deadline. She attended the hearing date with counsel seeking an adjournment, but was told the appeal had been deemed withdrawn and the Tribunal had no discretion to proceed.
The applicant argued that EU law, fair procedures and the constitutional interests of children required an exceptional extension where a failure to respond was beyond the applicant’s control. She relied in part on an EU directive provision allowing national rules for appeals to treat a remedy as implicitly withdrawn, and argued that an exception for circumstances beyond an applicant’s control in a separate provision should also apply. The respondent disputed none of the cited general principles on effective remedies.
Justice O’Regan found that the statute clearly provided for deemed withdrawal and did not allow the court to add a power to extend time. She considered the required response simple: an indication of whether the appeal would continue. The court found no evidence of an effort to respond and was not satisfied that the failure was beyond the child’s control or that a reasonable explanation had been shown.
The judge concluded that the statutory rule did not make exercising the right of appeal practically impossible or excessively difficult. She rejected the grounds alleging breach of the statute, unlawful fettering of discretion and legal error, and refused certiorari. The court did not determine the constitutional challenge to the statute, which the parties had agreed would not proceed in this judicial review.