Facts:
The applicant, a national of Nigeria, issued proceedings in which he sought inter alia to challenge decisions of the Minister for Justice refusing his applications for subsididary protection and leave to remain, which culminated in the making of a deportation order in respect of him.
A telescoped hearing date of the 26 February, 2014, was assigned and the case was called over in the normal way on 17 February, 2014. In the applicant’s outline submissions delivered on the 16 October, 2013, it was claimed that in determining the subsidiary protection application, the Minister placed total reliance upon the adverse credibility findings previously made by the Refugee Appeals Tribunal and that the applicant might seek to amend his statement of grounds to reflect that complaint.
A notice of motion did not issue seeking an amendment to cover that issue until the 19 February, 2014. On the 17 February, 2014, the respondents were contacted by telephone and informed that the applicant wished to rely on the judgment of Hogan J. in M.M. v. Minister for Justice [2013] IEHC 9, which dealt with the point and to adjourn the hearing of the case pending the outcome of a Supreme Court appeal in that matter. The respondent refused to consent to an application for an adjournment on that basis. An application was made to the High Court (MacEochaidh J.), as a result of which the applicant was directed by the court to bring an application to amend the statement of grounds, if he wished to do so, within 48 hours.
The applicant then sought an amendment of the statement of grounds in the following terms:-
“The Minister, in determining the subsidiary protection application of the applicant, erred in law in failing to provide the applicant with an effective hearing in that reliance was placed on the adverse credibility findings previously made by the Refugee Appeals Tribunal and no independent and separate adjudication was made on the applicant’s claim.
The deportation decision was vitiated by the unlawful procedure adopted in determining the subsidiary protection application.”
Subsequently, the applicant sought to excuse the delay in issuing the motion to amend by referring to the fact that similar matters were awaiting determination by the Supreme Court. He claimed that the Minister would not suffer any prejudice by allowing the amendment, particularly as he had ample opportunity since the 16 October, 2013, to consider his position.
The Minister objected to the proposed amendments and submitted that the applicant was seeking to make a new case challenging the subsidiary protection decision, some four years and four months after it was made and over one year after the judgment of Hogan J. in M.M. Apart from the brief reference in his written legal submissions to the possibility of such a point being raised, the matter was never taken any further. The matter was not raised at the list to fix dates or in any correspondence thereafter. The applicant sought (and the Minister was happy to agree) that the case should proceed by way of a telescoped hearing and he only sought to initiate an amendment to the grounds days in advance of the hearing. In addition, the Minister complained that the applicant has not sworn an affidavit grounding the motion to amend the pleadings, and did not make any complaint as regards the substantive assessment of his subsidiary protection application in 2009. Nor had he challenged the decision of the Tribunal.
The High Court refused to allow the amendment.
Reasoning:
It noted that no attempt was made by the applicant to argue the point at issue in the reference in M.M. at any stage and that it had not formed part of the original grounds as in J.A. v. Minister for Justice [2013] IEHC 244. The case made in respect of the referred point in M.M., which concerned an alleged failure to cooperate with the applicant in the determination of his application for subsidiary protection, had been lost by the applicant as a result of the decision on the reference and its application by Hogan J., and the point he now sought to advance in the proposed amendment emerged only as an ancillary point, but had never previously been relied upon by him.
The court held the applicant to have been guilty of inordinate and in excusable delay in initiating the proposed amendment. It was not satisfied that any reasonable explanation has been offered for the delay. It was clear that the M.M. point was widely known, but nothing was done by the applicant on foot of this. The suggestion that he refrained from initiating a motion to amend because of the pending appeals against the decision of Hogan J. in M.M. and J.A., where he granted an amendment, was held to be an insufficient explanation for his failure to apply at a much earlier stage. The court pointed out that time limits for judicial review were designed to ensure prompt application to the court and were much shorter than those generally applicable to limitation periods in other matters. The applicant delayed until days before a substantive, telescoped, High Court hearing, which militated against granting the amendment. The court observed that the Minister, by consenting to a telescoped hearing, was facilitating the court and the applicant by ensuring as speedy a determination of the case as possible, and that unless there was a reasonable explanation, an application for amendment of grounds should not be granted in those circumstances.
Moreover, the court pointed out that although the applicant was now seeking in the amendment to impugn the Minister’s adoption of adverse credibility findings made by the asylum authorities, he had never challenged their decisions in judicial review proceedings.
It considered that the decision in J.A. to allow an amendment of the statement of grounds was distinguishable, noting that the court there had also been satisfied that the applicant had established a stateable ground upon which to challenge the subsidiary protection decision on the basis that the Minister had failed to consider the core basis of the subsidiary protection application, and that an important fear of serious harm had not been addressed in the decision. The court considered that, in those circumstances, it was appropriate in the interests of justice to grant leave to amend the grounds, notwithstanding the passage of time.
The court concluded that to allow the amendment would, in effect, allow the applicant to advance an entirely new cause of action, comprising a significant enlargement of his case. Although the nature of the relief sought remained unchanged by the proposed amendment, it completely transformed the nature of the challenge to a substantive attack on the subsidiary protection decision. The court held that to allow it at that stage would be unfair to the Minister.
Decision:
The High Court refused to allow the amendment to the statement of grounds on the basis of delay.
