A.M. v Refugee Applications Commissioner

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 06 October 2005
• Neutral Citation: [2005] IEHC 317
• Court: High Court
• Docket Number: [2004 No. 374 JR]
• Date: 06 October 2005

[2005] IEHC 317

THE HIGH COURT

[No. 374JR/2004]

MOKE v REFUGEE APPLICATIONS COMMISSIONER

JUDICIAL REVIEW

BETWEEN

ANDY MOKE

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENT

RSC O.84 r21

REFUGEE ACT 1996 S13(1)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

C (P) v DPP UNREP HIGH COURT FINLAY GEOGHEGAN 11.3.2005

DE ROISTE v MIN FOR DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

REFUGEE ACT 1996 S11B

(R) v LONDON BOROUGH OF MURTON 2003 4 ALL ER 280

REFUGEE ACT 1996 S8(5)(a)

REFUGEE ACT 1996 S8(5)(b)

REFUGEE ACT 1996 S9(12)

REFUGEE ACT 1996 S9(a)

IMMIGRATION: asylum

Unaccompanied minor - Delay - Age assessment -Fair procedures - Whether conduct of respondent contributed to delay - Whether fair procedures observed in assessment of age - Whether subsequent recommendation affected by invalid assessment of age - Refugee Act 1996 (No 17), ss 8(5), 9, 11 and 13 - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Certiorari refused

JUDICIAL REVIEW: delay

Whether application made promptly - Whether delay disentitled applicant to relief - Challenge to age assessment - Whether respondent contributed to delay - Whether applicant told of right to challenge assessment in time - Whether delay after subsequent recommendation of respondent excusable - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 21 - Delay reasonable but certiorari refused (2004/374JR - Finlay-Geoghegan - 6/10/2005) [2005] IEHC 317

MOKE v REFUGEE APPLICATIONS COMMISSIONER

Facts: The applicant, during his initial application to the respondent for asylum, claimed to be a minor. That contention was rejected by the respondent pursuant to an age assessment undertaken by her. The applicant was informed that he was being treated as an adult and sent to an adult hostel. He was not given the decision or the reasons therefor in writing. Subsequently, the respondent recommended that his claim for asylum be rejected. The applicant was granted leave to apply for judicial review, on consent, of, inter alia, both decisions made by the respondent. The applicant challenged the decision on the basis of a lack of fair procedures in the standard practice of the respondent in carrying out age assessments.

Held by Finlay Geoghegan J in granting an order of certiorari in respect of the decision deeming the applicant not to be a minor but refusing the relief sought in relation to the report and recommendation made pursuant to section 13 of the Act of 1996, 1, that there was a well established general principle of construction in favour of necessary incidental powers to express statutory powers or duties. Such decision making power had to be exercised in accordance with the principles of constitutional justice and fair procedures. What constitutes fair procedures would depend upon the nature of the decision being taken and the legal and factual circumstances in which it was being taken.

2. That where an unaccompanied person arrived and claimed to be a minor and there were doubts about the veracity of that claim, an immediate decision had to be taken.

That age assessment was an inexact science but the following were the minimum procedural requirements in relation to an age assessment decision taken by the respondent:

the applicant had to be told the purpose of the interview in simple terms;

where an applicant claimed to be a minor and the interviewers formed a view that that claim was false, the applicant was entitled to be told in simple terms the reasons for or grounds upon which the interviewers considered the claim could be false and to be given an opportunity of dealing with those reasons or grounds;

where an applicant produced a document which purported to be an original official document which included a record of his alleged date of birth and the interviewers were not prepared to rely upon such document, the applicant was entitled to be told of their reservations and given an opportunity to deal with same;

if the decision was adverse to the applicant, he had to be clearly informed of it and the reasons for it. The initial information could, of necessity, be given orally but should be promptly confirmed in writing;

where the decision was adverse to the applicant and there existed the possibility of reassessment, then such information should be communicated clearly to the applicant in writing. Such communication should include how such reassessment could be accessed by the applicant.

3. That the decision to treat the applicant as an adult was in breach of constitutional justice and fair procedures and he was entitled to an order of certiorari of the decision deeming him not to be a minor.

4. That the respondent had acted within jurisdiction in making the report and recommendation pursuant to section 13 of the Act of 1996 refusing the applicant's claim for asylum.

Reporter: P.C.

1 JUDGMENT of Ms. Justice Finlay Geoghegan delivered 6th day of October 2005

2 The applicant is a citizen of the Democratic Republic of Congo. He arrived in Ireland on the 27th February, 2003. He was unaccompanied. He claims to have been born on the 1st November, 1986, and therefore at the time of his arrival to be less than eighteen years of age. He went to the office of the respondent. A doubt was formed as to whether he was under 18 as claimed. He was interviewed by two officials on behalf of the respondent for the purpose of assessing his age. He was assessed not to be under eighteen years of age.

3 The applicant was assigned to adult accommodation in Cork. He made an application for asylum which was processed in the usual way. He was interviewed for that purpose on behalf of the respondent on the 20th January, 2004, and informed by a letter dated the 12th March, 2004, that the respondent recommended that he not be granted a declaration of refugee status.

4 On 4th May, 2004, the applicant issued a motion seeking leave to challenge the validity of each of the above decisions made on behalf of the respondent. On consent an order was made granting leave on 11th April, 2005, referred to in more detail below. The respondent opposes the claims and alleges delay, particularly in relation to the challenge to the age assessment decision taken on the 27th February, 2003.

Delay

5 The respondent objects to the applicant being granted the relief sought by reason of the delay in making this application. The respondent also relies upon the failure to comply with Order 84, rule 21 of the Rules of the Superior Courts.

6 The application for leave to issue judicial review herein was brought on a notice of motion issued on the 4th May, 2004. It was brought on notice to the respondent herein, the Refugee Appeals Tribunal, the Southern Health Board, the Minister for Justice, Equality and Law Reform, Ireland and the Attorney General. The order of certiorari sought in respect of the respondent's recommendation pursuant to s. 13 of the Act of 1996 (as amended) is subject to s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 and accordingly the application for leave to seek that relief had to be brought on notice to the respondent and the Minister for Justice Equality and Law Reform.

7 At the time of issue of the notice of motion, the applicant in accordance with his claimed date of birth was still a minor. He had in March, 2004 sought the assistance of the Refugee Legal Service to lodge an appeal to the Refugee Appeals Tribunal against the recommendation of the respondent. They had refused assistance upon the basis that they were not permitted to submit appeals on behalf of minors unless the minor had a guardian. The applicant's present solicitors Ronan Daly Jermyn both lodged an appeal to the Refugee Appeals Tribunal without prejudice to the intended judicial review proceedings and also sought to have the Southern Health Board appoint a person to act as a next friend for the applicant in these proceedings. It refused. Ultimately the solicitor taking instructions from the applicant determined that the applicant was competent to give instructions and issued the proceedings notwithstanding the applicant's claim to be a minor at the relevant date.

8 The applicant came of full age on 1st November, 2004, in accordance with his claimed date of birth. Thereafter the issues between the applicant, the Refugee Legal Service and the Southern Health Board were no longer relevant. In addition the Refugee Appeals Tribunal agreed not to proceed with the appeal until the determination of these proceedings.

9 Subsequently an amended statement of grounds was prepared on behalf of the applicant seeking only relief against the respondent herein. At the request of the applicant and the respondent I made an order on consent on 11th April, 2005, granting the applicant leave to apply by way of judicial review for the reliefs set forth in the amended statement of grounds. The order as perfected does not record any order in relation to an extension of time or reservation in relation to a time point. No application has been made to amend that order.

10 In PO'C v. The Director of Public Prosecutions (The High Court, Unreported, 11th March, 2005) I considered the approach of the High Court to a claim that an applicant had failed to comply with Order 84, rule 21 at a full hearing and stated at

11 p. 3 of that judgment:

"On an application for leave the onus is on the applicant to show that he is applying "promptly" and within the time limit specified in Order 84, rule 21. If he is not so applying, then the onus is on him to establish that there are good reasons for which the court should extend the period within which the application for leave may be made. However, once leave is granted (without any reservation of the time point), then delay...