Ex parte Maribel Hernandez Velazquez Norah (MA 356 of 2023 (Arising in MC 80 of 2023)) [2024] SCSC 178 (24 November 2024)

SUPREME COURT OF SEYCHELLES Reportable MA 356/2023 Arising in MC80/2023 In the ex parte matter of: MARIBEL HERNANDEZ VELAZQUEZ NORAH (rep. by Karen Domingue) Petitioner and in the matter between: MARIBEL HERNANDEZ VELAZQUEZ NORAH (rep by Karen Domingue) and THE MINISTER OF INTERNAL AFFAIRS (rep by Brandon Francois) Applicant Respondent Neutral Citation: Ex parte: Maribel Norah (MA 356/2023) (20 November 2024) Before: Summary: Burhan J Leave to proceed with Judicial Review after the prescribed time frame set out In the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules 1995. 20 March 2024 and 14 October 2024. 20 November 2024 Heard: Delivered: ORDER The application for leave to proceed with Judicial Review after the prescribed time frame is denied. Consequently, the primary application, MC 80 of 2023, is dismissed. Furthermore, the stay order issued in MA 359 of2023, which temporarily restrained the deportation of the Applicant, is hereby vacated. ORDER BURHANJ [J] The Applicant, Petitioner in the Judicial Review petition MC 80 of 2023 (primary application) filed this application MA 356/2023 arising from MC 80 of2023, seeking leave to proceed in the Judicial Review application out of time and also leave to proceed. [2] The Applicant also filed Miscellaneous Application 359/2023 seeking inter -alia that the Respondent, the Minister for Internal Affairs refrains from deporting the Applicant from Seychelles before the Judicial Review case is heard and that the Applicant be allowed to remain in Seychelles unti I the disposal of the said case. [3] Both matters were taken up on 23 October 2023 and as learned Counsel who appeared for the Respondent Mr Brandon Francoise did not object to the said application in MA 359/2023, a stay order was issued by this Court preventing the Respondent from deporting the Applicant from Seychelles until the final disposal of the case. When this application 356/2023 was mentioned at the same time, Mr Francoise moved for time to decide whether they were going to object or not to this application seeking both leave to proceed in the Judicial Review application out of time and leave to proceed in the Judicial Review application. On the 26 October 2023, Court was informed that the Attorney General would be filing objections and as there was no objection from the Applicant, MA 356/2023 proceeded inter-parte and time was given for objections to be filed. [4] The Respondent filed objections to the said applications on 8 November 2023 and both parties opted to file written submissions. The Respondent filed written submissions on the 20 March 2024 while the Applicant very belatedly filed the written submissions dated 11 July 2024 on the 14 October 2024. [5] The application this Court would first decide on, is whether the Applicant should be granted leave to proceed in the Judicial Review out oftime. [6] I have perused the affidavit attached to the application signed by the Applicant dated 12 October 2023. [7] In paragraphs I to 14 she sets out the background facts to the application for Judicial Review. This does not in any way explain or condone the delay in filing this Judicial Review application out of time. [8] The Applicant thereafter, refers to errors made by her Counsel in failing to file an affidavit with her petition resulting in her Judicial Review application filed in November 2021, being dismissed. Thereafter, she has referred to the abuse of powers and breach of rules of natural justice on the part of the Respondent and that the Respondent has taken into account irrelevant considerations, in deciding to maintain its decision that she is a Prohibited Immigrant. However, she has not set out any reason to explain the delay in filing this Judicial Review Application in her affidavit. [9] Learned Counsel for the Respondent filed objections and submissions on 20 March 2024, objecting to the Petitioner's request for leave to proceed out of time based on the following grounds: a. Jurisdiction (Supervisory Citing Rule 4 of the Supreme Court over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules 1995 (Supreme Court Rules argued that the petition should have been filed within three 1995) the Respondent months of the contested decision. Since the Applicant three urged dismissal years out of time without of Employment based on the findings Tribunal 2014) and Universal (Pty) Limited v The Attorney General at the instance of the Ministry of Computers [2023] sese 50 (30 January Employment 2023) seeking an extension, in the case of Labrosse the Respondent v Chairperson [2014] SCCA 44 (12 December filed her application and Social Affairs (MC 51 of 2020) (SCA 36 of2012) b. The Respondent emphasized the importance of prompt filing to ensure finality in decision-making. Learned Counsel Mr Francoise submitted that the application challenged a decision made on November 17, 2020, yet the Petition was filed on October 16, 2023-nearly three years later. Rule 4 of the Supreme Court Rules 1995, requires Judicial Review applications to be filed within three months unless a compelling reason for delay is provided. c. The Respondent further submitted that if the Applicant now seeks to challenge prior decisions, such as the denial of a Dependent Permit or her initial Prohibited Immigrant status, this attempt is untimely and inconsistent. He argued that the Applicant's approach shows a lack of good faith, as it appears to be an attempt to circumvent immigration procedures by filing multiple petitions. He referred to the case of Minister ofInternal Affairs v. Varsani, MA 241 of2022 [2023] SCSC 132 (16 February 2023) and submitted that procedural rules must be strictly followed, with extensions granted only in exceptional cases. The Court held that "rules of court must prima facie be obeyed," and any deviation should only be condoned under extraordinary circumstances. d. Learned Counsel for the Respondent further highlighted the Applicant's failure to present any "good reason" for her delay. He argued that the Applicant's own inconsistencies and errors do not constitute an "exceptional case" or an extraordinary circumstance to grant her leave to proceed out of time and that allowing her application to proceed would undermine procedural integrity. The Applicant by filing for Judicial Review without first securing leave for an extension, is assuming the Court would condone the delay due to her own procedural faults. e. Learned Counsel for the Respondent further submitted that these rules are critical to uphold the legal process and to ensure that applications are made within reasonable time frames and requested that the Court dismiss the application as untimely and deny leave to proceed out of time. [J 0] In her submissions dated 11 July 2024 filed on the 10 October 2024, learned Counsel for the Applicant Mrs Karen Domingue admits that the decision she seeks to impugn is the notice of Prohibited Immigrant issued to the Petitioner 17 November 2020, the maintenance of the decision as communicated to the Petitioner's husband on 31 August 2021 and the non-processing of the Petitioner's Dependant permit. [11] Although the reasons were not stated in the affidavit filed, Counsel for the Applicant, in her written submissions, attributed the delay to the COVID-19 pandemic from 2020 to 2021 and the Respondent's alleged failure to communicate the decision to maintain the Prohibited Immigrant Status until 31 August 2021. Learned Counsel submits that these reasons justify the delay in filing the present application. It is further argued that Rule 4 of the Supreme Court Rules 1995 is discretionary in nature rather than mandatory. [12] It would be pertinent at this stage to set down Rule 4 of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules 1995 which reads as follows: A petition under rule 2 shall be made promptly and in any event within 3 months from the date of the order or decision sought to be canvassed in the petition unless the Supreme Court considers that there is good reason for extending the period within which the petition shall be made. [13J Upon considering the submissions of both the Applicant and the Respondent regarding the delay in filing this application for Judicial Review, it is evident from the facts presented that this is not the Applicant's first attempt at Judicial Review. The Applicant acknowledges that shortly after 31 August 2021, her first Counsel filed a Judicial Review application, which was dismissed due to the Petition's lack of an accompanying affidavit. Additionally, Learned Counsel for the Respondent highlighted that the Applicant subsequently filed a second Judicial Review application concerning the Prohibited Immigrant Notice in Maribel Norah v Ministry of Internal Affairs (XPI84/2021) [2020] SCSC 740. This application was dismissed by Esparon J at the leave stage on 29 September 2023. [14] Upon reviewing the ruling delivered by Esparon J on 29 September 2023, it is evident that, following a comprehensive analysis of the facts presented, the learned Judge concluded that while the Applicant demonstrated sufficient interest in the matter, she failed to establish an arguable case. Despite this ruling, the Applicant, instead of appealing the said decision, has opted to file a third application for Judicial Review based on the same Prohibition Immigrant Order. [15] This Court is firmly of the view that the purpose of prescribing time limits for filing such applications is to prevent undue delays and to ensure the finality of litigation. Without these limits, the litigation process would remain perpetually open-ended. In Labrosse v Chairperson of Employment Tribunal (supra) Court of Appeal held that: " .... procedural rules must befollowedfor both appeals and judicial review applications. An appeal from the decision of the Tribunal could have been filed within 14 days of it being delivered (viz section 4 of Schedule 6 of the Employment Act 1995 and section 6 (2) of The Appeal Rules (1961) made the Supreme Court pursuant and Tribunals over Subordinate (Supervisory Adjudicating Authorities) Rules 1995 provides that a petition for judicial review shall be made promptly and in any event within 3 months from the date of the order or decision unless the Supreme Court considers there is good reasonfor extending the period" to the Courts Act). Jurisdiction Similarly, Rule 4 of Courts, [16] It is evident to this Court that the Applicant's third attempt at Judicial Review, filed over two years beyond the cut-off date of31 August 2021, constitutes an abuse of process. The invocation of COVID-19 as a justification is untenable, given that the Applicant successfully filed two prior applications for Judicial Review within the same period. The Court of Appeal affirmed its position in Universal Computers (Pty) - Limited v. The Attorney General (supra), in stating: "Under Rule 4 of the Supreme Court (Supervisory Jurisdiction over Subordinate Courts, Tribunals and Adjudicating Authorities) Rules, a petition shall be made promptly and in any event within 3 months from the date of the order or decision sought to be canvassed in the petition, unless the Supreme Court considers that there is good reason for extending the period within which the petition shall be made. The Court (SCA 3612012) [20141 SCCA 44 (12 December 2014) dealt with an appeal where the appellant challenged the decision in the lower court to dismiss his judicial review application because it was filed out of time. In a unanimous decision, the Court dismissed the appeal and stated that procedure must befollowed and Petitions filed out oftime ought not to be entertained. " in Labrosse v Chairperson of Employment Tribunal [17] For all the aforementioned reasons and case law set out herein, it is the considered view of this Court that no valid or good reason has been provided to justify condoning the delay in filing this Judicial Review application outside the time frame stipulated under Rule 4. [18] Therefore, the application to pursue Judicial Review after the stipulated time limit in rule 4 of the Supreme Court Rules 1995 is denied. Consequently, the primary application, MC 80 of 2023, is dismissed. Accordingly, the stay order issued in MA 359 of 2023, which restrained the deportation of the Applicant, is set aside. M Burhan J 7