Tribunal acted beyond its powers refusing asylum appeal extension, Supreme Court rules

High Court reporters

The International Protection Appeals Tribunal (IPAT) acted beyond its powers when it refused to allow two appellants to apply for extended time to appeal their protection refusal, a five-judge Supreme Court has ruled.

International protection officers recommended to the Minister for Justice that the appellants, labelled Mr A and Ms B, be refused international and subsidiary protection.

The individuals did not appeal the recommendations within the required time, allowing a number of months to elapse. The Minister accepted IPAT’s advice and ordered their deportation.

Subsequently, Mr A, who is from the Republic of Georgia, and Ms B, who is a Brazilian native, wrote to IPAT seeking to extend the time in which they could appeal its decisions.

IPAT refused to entertain the request as the Minister had made a deportation decision under a provision that had the effect that the appellants no longer had recommendations simpliciter against which to appeal.

The High Court refused to quash IPAT’s decision, after finding Mr A and Ms B were no longer “applicants”.

The judge ruled that IPAT did not err in law and he also refused to grant a certificate for the applicants to appeal to the Court of Appeal.

The Supreme Court overturned the High Court’s ruling.

'Reset the clock'

In the court’s lead judgment, Mr Justice John MacMenamin examined what constitutes an “applicant” in the International Protection Act 2015 and previous legislation.

He noted that the drafters of the 2015 Act had sought to place a limit on how long a person remains an “applicant”.

He found the appellants cannot reset the clock and have their appeals allowed by IPAT, and the most they can achieve is for IPAT to consider their application to extend time for their appeal.

He concluded that people who are formerly applicants may apply to extend time to appeal as a matter of fair procedures and constitutional justice.

He refused to issue a declaration that section 2(2) of the Act is unconstitutional, but he declared that IPAT erred in law in precluding Mr A and Ms B from applying for extended time.

The judge proposed an order that would quash the decisions not to consider the applications for time extensions. The applications would be remitted for fresh determination from IPAT in accordance with law.

His judgment, which was supported by Ms Justice Elizabeth Dunne, Ms Justice Marie Baker and Mr Justice Gerard Hogan, says “nothing as to the potential outcome of any such applications”.

Mr Justice Peter Charleton issued a separate, concurring judgment, outlining alternate reasoning for his finding that the 2015 Act cannot be declared unconstitutional.

He held that the matter should be returned to the Minister who can decide whether to uphold or alter her decision.