O (M) & O (A) (A Minor) v Refugee Applications Cmsr and Others

JurisdictionIreland
JudgeMr. Justice Mac Eochaidh
Judgment Date27 February 2014
Neutral Citation[2014] IEHC 90
CourtHigh Court
Date27 February 2014

[2014] IEHC 90

THE HIGH COURT

[No. 854 J.R./2009]
[No. 855 J.R./2009]
O (M) & O (A) (a minor) v Refugee Applications Cmsr & Ors
No Redaction Needed
JUDICIAL REVIEW

BETWEEN

M. O.
-AND-
A. O. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND M. O.)
APPLICANTS
-AND-
THE REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, ATTORNEY GENERAL, IRELAND
RESPONDENTS
-AND-
HUMAN RIGHTS COMMISSION
NOTICE PARTY

REFUGEE ACT 1996 S13(6)(B)

MOKE v REFUGEE APPLICATIONS CMSR 2006 1 IR 476 2005/39/8126 2005 IEHC 317

REFUGEE ACT 1996 S8(5)

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

N (S U) [SOUTH AFRICA] v REFUGEE APPLICATIONS CMSR & ORS UNREP COOKE 30.3.2012 2012/33/9649 2012 IEHC 338

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S16

CONSTITUTION ART 40.3

ADAN v REFUGEE APPLICATIONS CMSR & REFUGEE APPEALS TRIBUNAL 2007 2 IR 787 2007/1/110 2007 IEHC 54

ODUNBAKU & O'MAHONY v REFUGEE APPLICATIONS CMSR & ORS UNREP CLARKE 1.2.2006 2006/45/9707 2006 IEHC 28

Judicial Review – Asylum - Refugee Appeals Tribunal - Office of the Refugee Applications Commissioner - Credibility findings - Adequate reasoning - Legality of decision - Ultra vires - Discretion - Age assessment - Special circumstances for a late application - Refugee Act 1996

Facts: The first named applicant was a Nigerian national who applied for refugee status as a minor upon arrival in Ireland in December 2008. She was six months pregnant with the second named applicant, A.O., at that time and it was the first named applicant"s claim that she had become pregnant after being raped by her uncle. A.O was subsequently born in the State on the 23rd March 2009. The application was rejected by the Refugee Applications Commissioner ('the ORAC') and the Refugee Appeals Tribunal ('the Tribunal') on the basis of negative credibility findings, the most notable being a determination that the applicant was not a minor. An application for refugee status for A.O had also been submitted, but this was similarly rejected. On the 22nd July 2009, the Minister for Justice issued a proposal to deport the applicants.

The applicants subsequently applied for leave to apply for judicial review to challenge the decisions of the ORAC in refusing the applications. It was clear that the ORAC had determined that the first named applicant was not a minor because of her appearance and the fact that she had not been able to produce her passport. The first named applicant argued that she had not been given the opportunity to have her age reassessed after submitting a birth certificate that indicated that her date of birth was the 11th August 1991, which had not been available when her age was first assessed. The ORAC had claimed that this was because the birth certificate document could not be authenticated. The ORAC had also determined that the applicants" appeals to the Refugee Appeals Tribunal should proceed as a "papers only" appeal pursuant to s. 13(6)(b) of the Refugee Act 1996 because the first named applicant 'made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded.' The first named applicant argued that the ORAC made this finding in a perfunctory or mechanical manner without addressing the fact that the decision maker had discretion not to include the finding. In response, the respondents pointed out that in the applicant"s appeal to the Tribunal, there had been no assertion of an entitlement to an oral hearing and no allegation of a breach of fair procedures. It was also argued that the applicant had failed to show special circumstances to justify a hearing of the judicial review application going ahead at such a late stage, especially when an appeal to the Refugee Appeals Tribunal had already been determined. The matter proceeded by way of a "telescoped" application.

Held by Mac Eochaidh J. that he could not see any flaw in the ORAC"s decision not to reassess the age of the first named applicant following the submission of the birth certificate. It was said that because the birth certificate could not be authenticated, the ORAC had had the jurisdiction to either accept or reject the first named applicant"s birth certificate as evidence of her age. It was also noted that an offer had been made to the first named applicant to reassess her age if she submitted any document containing biometric data capable of authentication or medical evidence to confirm her minor status; however, the first named applicant had failed to do so. Further, it was determined that the ORAC had complied with the requirement outlined in A.M. v. Refugee Applications Commissioner [2005] IEHC 317 to give clear and sufficient reasoning when a finding adverse to the applicant is made.

It was also held that the applicants" second argument would be rejected. It had been argued that the ORAC had made a finding pursuant to s. 13(6)(b) of the Refugee Act 1996 in a perfunctory or mechanical manner, but it was said that clear and logical reasoning had been provided in support of the decision. It was also pointed out that the ORAC had clearly had regard to all of the evidence in the case before reaching its conclusion. Finally, Mac Eochaidh J. noted out that the case of Nafisa Abdi Adan v. Refugee Applications Commissioner [2007] IEHC 54 showed that an applicant would have to show 'special circumstances' to convince a court to exercise its discretion and to permit a late challenge to a first instance decision by the ORAC when an appeal to the Tribunal had already been determined. It was held that the applicants had failed in this regard.

Leave to seek judicial review refused.

1

1. These are 'telescoped' applications for leave to seek judicial review of two decisions of the Refugee Appeals Tribunal refusing a mother and her daughter declarations of refugee status. The minor applicant's claim is based on that of her mother.

2

2. The mother is a Nigerian national who claims to have entered the State on 17 th December 2008 as a seventeen year old unaccompanied minor. She states that her date of birth is the 11 th August 1991. An age assessment was carried out by the Office of the Refugee Applications Commissioner who determined that the applicant was not a minor. At the time of her arrival she was six months pregnant with her daughter A.O. who was born in the State on 23 rd March 2009. The applicant claims that she was raped by her uncle, who is the father of her child, and that she fled Nigeria when he made threats to harm mother and baby.

3

3. The applicants made separate applications for asylum and separate decisions have issued from the Office of the Refugee Applications Commissioner on 15 th May 2009 and the Refugee Appeals Tribunal on 22 nd June 2009. The Minister for Justice issued a proposal to deport the applicant dated 22 nd July 2009. Only two grounds of challenge were pursued at the hearing of these actions.

Submissions:
4

4. The first challenge relates to the age assessment carried out by the Office of the Refugee Applications The second ground advanced is that the decision of ORAC to make a finding pursuant to s. 13(6)(b) of the Refugee Act 1996 (as amended) and thereby cause a 'papers only' appeal to the Refugee Appeals Tribunal, was made in error.

5

5. In relation to the first complaint, Mr. de Blacam S.C. notes that the reasons given by ORAC for the rejection of the applicant's claim to be a minor were that she had not provided a genuine passport to prove her identity; and also that she seemed to be older in her appearance than her asserted age. In particular, counsel says that the applicant was not given the opportunity to have her age reassessed based on a birth certificate indicating that her date of birth is the 11 th August 1991 and which had not been available when her age was first assessed. Such a reassessment was refused on the basis that the birth certificate document could not be authenticated by ORAC who saod that a reassessment might be considered if the applicant "submits her passport or any document containing biometrie data capable of authentication or medical evidence to confirm her minor status."

6

6. Counsel referred the court to the decision of Finlay Geoghegan J. in A.M. v. Refugee Applications Commissioner [2005] IEHC 317 and specifically to paragraph 25 thereof where the learned judge lists...

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