F. O. Y. O. and Another v Minister for Justice Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 16 May 2007
• Neutral Citation: [2007] IEHC 237
• Judgment citation (vLex): [2007] 5 JIC 1603
• Court: High Court
• Date: 16 May 2007

[2007] IEHC 237

THE HIGH COURT

[No. 999 J.R./2006]

O (F) & ORS v MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

BETWEEN

F. O. Y. O. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND F. O. A. O. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND)

APPLICANTS

AND

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, THE REFUGEE APPLICATIONS COMMISSIONER, ATTORNEY GENERAL, IRELAND

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11A

STEFAN v MIN JUSTICE 2002 2 ILRM 134

ABENGLEN PROPERTIES v CORPORATION OF DUBLIN 1984 IR 381 1982 ILRM 590

MCGOLDRICK v AN BORD PLEANALA 1997 1 IR 497

RSC O.84 PART V

RSC O.18 r1

RSC O.18 r2

IMMIGRATION LAW

Asylum

Judicial review - Application of child - Refusal recommended -Leave for judicial review - Whether substantial grounds established -- Safe country of origin - Presumption against refugee status -- Alternative remedy - Stefan v Minister for Justice, Equality and Law Reform [2001] 4 IR 203; State (Abenglen) Properties v Corporation of Dublin [1984] IR 381 and McGoldrick v An Bord Pleanala [1997] 1 IR 497 considered - Refugee Act 1996 (No 17), s 11A - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Leave granted (2006/999JR - McGovern J - 16/5/2007) [2007] IEHC 237

O(F) v Minister for Justice, Equality and Law Reform

The third named applicant sought leave to apply for judicial review and for an order of certiorari quashing the decision of the second named respondent recommending that the third named applicant be refused asylum status. The first named applicant was born in Nigeria and was the mother of the second and third named applicants. The third named applicant was born in Ireland. The third named applicant submitted that the second named respondent made a fundamental error of law and fact by stating that Nigeria had been designated a “safe country of origin” by the first named respondent. The applicant submitted that resulting out of that error of law and fact a presumption arose that the applicant was not a refugee. The applicant did not appeal against the decision of the second named respondent.

Held by McGovern J. in granting leave to seek judicial review: That having regard to the fact that the issue of the applicants national state being designated a safe country of origin was stated to be a legal basis for the assessment of the application for refugee status, it therefore amounted to a substantial ground for contending that the decision of the second named respondent ought to be quashed. The applicant was entitled to apply for judicial review by way of certiorari on the sole ground that the second named respondent erred in law and in fact and acted ultra vires in deciding the third named applicant’s application on the basis that his country of nationality had been designated a safe country of origin by the first named respondent.

Reporter: L.O’S.

1 Judgment of Mr. Justice McGovern delivered on the 16th day of May, 2007.

2 This judgment is circulated in redacted form to avoid identification of the parties

3 This is an application by the third named applicant for leave to apply for judicial review and for an order of certiorari quashing the decision of the second named respondent recommending that the third named applicant be refused asylum status. The notice of motion grounding the application also seeks an order extending the time for making the application in so far as is necessary and for an order amending the Statement of Grounds.

4 No argument was made on behalf of the respondents that the application was out of time and it was not a matter which assumed any significance in the hearing before me. I am satisfied that there was no delay in bringing this application. The application was submitted on the 9th. August 2006. He was informed of the decision to refuse him Refugee Status on the 7th. September 2006 and the Notice of Motion for leave to apply for Judicial Review is dated 18th September 2006 and appears to have been issued on that date.

5 The first named applicant was born in Nigeria and is the mother of the second and third named applicants. The third named applicant was born in Ireland on 5th August, 2005. An asylum application by the first named applicant was refused by the Refugee Applications Commissioner and then on appeal. The decision of the Refugee Appeals Tribunal was given on 4th August, 2005. In September, 2005 the first named applicant was informed that the first named respondent had made deportation orders relating to her and the second named applicant. By letters dated 9th August, 2006 individual asylum applications were submitted on behalf of the second and third named applicants to the second named respondent. The second named respondent was informed that his application was disallowed in the absence of consent by the Minister and by letter of 15th August, 2006 the Minister refused permission to the first and second named applicants to re-enter the asylum process. The third named applicant's application for refugee status has been refused by the second named respondent. No appeal has been made to the Refugee Appeals Tribunal.

6 At the commencement of the hearing counsel for the applicant informed the court that leave was being sought in relation to reliefs no. 7, 17, 18, 19, and 20 of the amended statement of grounds and on the grounds no. 11, 12, 17, 28, 31 and 32 of the amended statement of grounds.

7 The provisions of s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 provides that leave to apply for judicial review shall not be granted unless the court is satisfied that there are "substantial grounds" for contending that the decision on the determination, recommendation, refusal or order is invalid or ought to be quashed.

8 Having considered the affidavits and exhibits in this matter and the submissions of counsel I am satisfied that there is only one challenge to the s. 13 Report of the Refugee Applications...