Facts:
The first and second applicants were mother and daughter respectively. The mother and her son, who was not a party to the proceedings, had unsuccessfully applied for asylum, subsidiary protection and leave to remain and, in March 2010, they had been issued with deportation orders. The second applicant was born in 2009 and, having had an asylum application made on her behalf, was the subject of a negative recommendation from the Refugee Applications Commissioner in 2010, following which she appealed to the Refugee Appeals Tribunal. In 2012, supplemental submissions relating to her appeal were filed. These mentioned, for the first time, that her mother had been the victim of human trafficking. The Tribunal rejected the appeal.
Letters were sent by the mother’s solicitors to the Repatriation Unit of the Department of Justice seeking revocation of the deportation orders and asking for certain reliefs available to victims of trafficking. This was based on what was said to be a finding by the Tribunal that she was a victim of it. The correspondence was not pursued with any urgency.
As originally framed, the proceedings had sought an order of mandamus directing the Minister for Justice to process an application for protection, relief and ancillary benefits consequent upon the Tribunal’s alleged finding that the mother had been the victim of human trafficking. The pleadings made numerous allegations against the State for its failure to implement various international legal obligations, and in respect of the failure of the respondents to deal with the request for administrative immigration arrangements for the protection of such victims. The mother contended that her entitlement to assistance and support arose once the Garda National Immigration Bureau (GNIB) had reasonable grounds to believe that she may have been subjecting to trafficking. She subsequently stated on affidavit that the GNIB had visited her in 2013, and had furnished a report in May, 2014 stating that they had investigated the matter and interviewed her.
In an ex tempore judgment , the High Court (Mac Eochaidh J.) concluded that the Tribunal had not made any finding that the mother had been a victim of trafficking. It invited the applicants to consider their remaining grounds in light of its ex tempore ruling and granted leave to bring an application to amend the grounds.
On foot of that, the mother sought: an order of certiorari to quash the decision of GNIB that she was not a victim of trafficking, an order of mandamus demanding a senior member of GNIB to determine if there were reasonable grounds for so believing, and leave to add the Human Trafficking Investigation and Co-Ordination Unit of the GNIB as a respondent party.
The court stated that this amendment sought to change the case from one which alleged that the Tribunal had made a positive finding to one which alleged that the GNIB had a made a negative finding, and that the decision should have been taken by a person of a particular rank. The court stated that that was not an amendment but the raising of a new complaint which completely contradicted the case as originally pleaded.
Various grounds were advanced in favour of the new reliefs sought including inter alia the GNIB’s obligation to make a determination of as to whether there were reasonable grounds for believing that the mother had been the victim of trafficking, and its alleged failure to inform the Minister of any result of same. It was also said that the GNIB was on notice of the existence of such reasonable grounds, and that they were a “competent authority” for the purposes of the Anti-Human Trafficking Directive.
The court refused the amendment application.
Reasoning:
The court held that there had been a significant delay in pursuing the reliefs and it would be inappropriate to extend the time to add the GNIB as a party due to the fact that the applicants’ lawyers seemed fully conversant with the alleged responsibilities of the GNIB prior to the institution of the proceedings, but had provided no explanation as to why it was not originally named as a party.
In respect of the order for certiorari, the Court stated that the investigation of GNIB into the existence of whether or not there were reasonable grounds for believing the mother to be a victim of trafficking was ongoing, but was dependent upon her co-operation. It was therefore inappropriate to grant the amendment to the reliefs. The GNIB’s report of May 2014 was not a final decision on whether or not she was a victim of trafficking; rather, it was a step in a stalled investigation into that question. Consequently, the third relief of mandamus commanding a senior member of GNIB to make a “reasonable grounds” determination was held to be premature and inappropriate due to the ongoing nature of the investigation.
Decision:
The Court therefore refused the application to amend proceedings.
