M.I.-O.A. v Minister for Justice, Equality and Law Reform :

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 14 January 2010
• Neutral Citation: [2010] IEHC 150
• Docket Number: [No. 1338 J.R./2007]
• Court: High Court
• Date: 14 January 2010

[2010] IEHC 150

THE HIGH COURT

[No. 1338 J.R./2007]

A (M I-O)(an Infant) v Min for Justice & Refugee Applications Commissioner

JUDICIAL REVIEW

BETWEEN/

M. I. - O. A. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND M. A.)

APPLICANT

AND

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S16

KAYODE v REFUGEE APPLICATIONS CMSR UNREP SUPREME 29.1.2009 (EX TEMPORE)

N (BN) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR 2009 1 IR 719 2008/45/9749 2008 IEHC 308

D (A) v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 27.1.2009 2009 IEHC 77

A (TT) v MIN FOR JUSTICE & REFUGEE APPLICATIONS CMSR UNREP COOKE 29.4.2009 2009 IEHC 215

AJOKE v MIN FOR JUSTICE UNREP COOKE 30.4.2009 (EX TEMPORE)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006

EEC DIR 2005/85

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S16(6)

REFUGEE ACT 1996 S11B

IMMIGRATION

Asylum

Credibility - Standard for review - Assessment of credibility - Whether evidential basis for adverse credibility findings - Kayode v RAC [2005] IEHC 172 (Unrep, O'Leary J, 25/4/2005); B (NN) v Minister for Justice [2008] IEHC 308 (Unrep, Hedigan J, 9/10/2008); D (A) v RAC [2009] IEHC 77 (Unrep, Cooke J, 27/1/2009); Akintunde v RAC (Unrep, Cooke J, 29/4/2009); A v Minister for Justice [2009] IEHC 215 (Unrep, Cooke J, 30/4/2009) considered - Leave refused (2007/1338JR - Cooke J - 14/1/2010) [2010] IEHC 150

M(IOA) (an infant) v Minister for Justice, Equality and Law Reform

Facts The applicant had arrived in the State from Nigeria and had made a claim for asylum. The applicant was interviewed under section 11 of the Refugee Act, 1996 and a section 13 report was prepared recommending that the applicant not be declared a refugee. Judicial review proceedings had been issued seeking to quash the report. It was contended that the contested report was flawed, was vitiated by bias and that the principles of fair procedure and audi alteram partem had been infringed. In addition it was argued that there was a failure to assess the claim having regard to objectively acquired country of origin information.

Held by Mr. Justice Cooke in refusing the relief sought. The claim for asylum was a two-step process and where a report contained negative findings, the Refugee Appeals Tribunal could either accept or reject these findings. The appeal before the Tribunal was the appropriate forum to put new, better and more up-to-date country of origin information. It was consistent with the statutory scheme that the examination procedure be completed before recourse to judicial review was invoked.

Reporter: R.F.

Mr. Justice Cooke

1 The applicant was thirteen years old when she arrived in the State unaccompanied on 26^th April, 2007, from Nigeria. Her mother, M. A. and her two sisters had arrived here in 2006 and had claimed asylum. Their claim had been the subject of a report and negative recommendation under s. 13 of the Refugee Act 1996 dated 14^th November, 2006, and was also the subject of a pending judicial review proceeding.

2 On 28^th August, 2007, the mother made an application for asylum on behalf of this applicant as well. The applicant was interviewed under s. 11 of the 1996 Act on 26^th September, 2007 in the presence of her mother and on the following day a report under s. 13 of the 1996 Act was made which recommended that she be not declared to be a refugee. An application is now made to the Court for leave to seek judicial review of that report including, in particular, an order of certiorari to quash it. ("The Contested Report").

3 The first issue that arises on this application is whether the circumstances of this case, including the basis of the Contested Report and the grounds proposed to be raised as to its illegality, are such as to place the case in the category of exceptional cases in which this Court will exercise its discretion to entertain an application for judicial review of the report of the Commissioner rather than require the applicant to pursue the available alternative remedy of appeal to the Refugee Appeals Tribunal under s. 16 of the 1996 Act.

4 This issue and the criteria by reference to which it is decided have been the subject of a series of judgments in the Supreme Court and High Court in the last twelve months such that it is unnecessary to expound upon them in detail in this judgment. The cases have been referred to in argument upon the application and in the written legal submissions and include notably the following:-

5 ·Kayode v. Refugee Applications Commissioner (Unreported, Supreme Court, 29^th January, 2009);

6 ·BNN v. MJELR (Unreported, High Court, Hedigan J., X October, 2008);

·Diallo v. RAC (Unreported, Cooke J., 28^th January, 2009);

·Akintunde v. RAC (Cooke J., 29^th April, 2009);

7 ·Ajoke v. RAC (Unreported, Cooke J., 30^th April, 2009).

8 5. In effect, the statutory scheme for the examination and determination of applications for asylum as established by the Refugee Act 1996 (as amended) when taken in conjunction with the obligations of the State under European Union law (and particularly, the qualification and procedural standards sought to be attained under the European Communities (Eligibility for Protection) Regulations 2006 and Council Directive 2005/85/EC of 1^st December, 2005,) involves a two-stage process leading to the definitive decision of the Minister on each application under s. 17 of that Act. The first stage of the examination of the application is the investigation by the Office of the Refugee Applications Commissioner including, in particular, the section 11 interview of the applicant. Where the section 13 report contains a negative recommendation and an appeal against it is taken, the second stage takes place before the Refugee Appeals Tribunal which may either affirm or reject the negative recommendation. Although designated an "appeal" in the Act and having the format of an appeal especially where an oral hearing takes place, this procedure remains a quasi-investigative procedure in character as the provision of s. 16 (6) of the 1996 Act illustrates. It forms part of the process of examination of the application for refugee status. Both the decision of the Tribunal and the s. 13 report are submitted to the Minister for the purpose of his making a decision under s. 17 of the Act on the application.

9 6. It is thus consistent with that statutory scheme that the examination procedure be completed where an appeal to the Tribunal is taken, before recourse to judicial review is invoked. The procedure for examination of asylum applications ought not to be interrupted by the premature intervention of judicial...