A. [A Minor] v Minister for Justice

JurisdictionIreland
JudgeDenham C.J.
Judgment Date14 March 2013
Neutral Citation[2013] IESC 18
Docket NumberAppeal No: 9/2012
CourtSupreme Court
Date14 March 2013

[2013] IESC 18

THE SUPREME COURT

Denham C.J.

Murray J.

Clarke J.

Appeal No: 9/2012
A (An infant) v Min for Justice & Ors
Between/
A. (an infant suing by her mother and next friend)
Applicant/Appellant
v.
Minister for Justice and Equality, Refugee Applications Commissioner, Ireland and the Attorney General
Respondents

REFUGEE ACT 1996 S2

EEC DIR 83/2004

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

REFUGEE ACT 1996 S17(1)

EEC DIR 85/2005

EEC DIR 85/2005 ART 8(2)(B)

REFUGEE ACT 1996 S8

REFUGEE ACT 1996 S13

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(3)(A)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(1)(H)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

A (B) v MIN FOR JUSTICE 2002 1 IR 296

Asylum & Immigration law- Judicial review- Practice and procedure- Motion to dismiss- Certificate- Right of appeal- s. 5(3)(a) Illegal Immigrants (Trafficking) Act 20000

Facts: The appellant sought leave to apply by way of judicial review to quash a decision finding that the appellant had failed to establish a well-founded fear of persecution. The respondents brought a motion before the High Court in 2011 seeking an order dismissing the proceedings which had been brought on the basis that they were frivolous, and/or vexatious and/or doomed to fail and/or an abuse of process. The High Court dismissed the proceedings on foot of the motion brought. The Court considered whether the appellant was required to have a certificate to appeal the decision of the High Court on the respondent motion. The Court considered whether s 5(3)(a) Illegal Immigrants (Trafficking) Act 2000 applied to the proceedings, i.e. whether the order of the High Court was a determination within the meaning of the section.

Held by Denham CJ (Murray, Clarke JJ. concurring) that the applicant had a right of appeal from the judgment and order without a certificate from the decision of the High Court. The Court would dismiss the motion of the respondent. The substantive appeal which had been adjourned would proceed.

Denham C.J.
Judgment delivered by Denham J [nem diss]
1

This judgment addresses a preliminary issue on the appeal.

2

The Minister for Justice and Equality, the Refugee Applications Commissioner, Ireland and the Attorney General are the respondents in this appeal before the Court, and are referred to as "the respondents".

3

The respondents brought a motion before the High Court on the 12th December, 2011, seeking an order dismissing the proceedings which had been brought on behalf of A, an infant suing by her mother and next friend, the applicant/appellant, referred to as the "appellant", on the basis that they were frivolous, and/or vexations, and/or doomed to fail, and/or an abuse of process.

4

An application for leave to apply for judicial review had been brought on behalf of the appellant. By Notice of Motion dated the 22nd August, 2011, the appellant had issued proceedings seeking to quash the recommendations of the Refugee Applications Commissioner, referred to as "the Commissioner", dated the 12th July, 2011, and notified to the appellant by letter dated the 2nd August, 2011, that she should not be declared a refugee.

5

By order of the 19th December, 2011, the High Court dismissed the proceedings on foot of the respondents' motion, on which date the High Court delivered a written judgment.

6

The appellant has appealed that decision to this Court.

7

The appellant brought an application seeking leave to apply by way of judicial review for a number of reliefs, including an order quashing the decision of the Commissioner that the appellant failed to establish a well founded fear of persecution as defined under s. 2 of the Refugee Act, 1996, as amended. This is referred to as "the decision".

8

There were also a number of generic reliefs sought, including declarations sought as to the procedures, the transposition of Council Directive 2004/83/EC of 29 January, 2004, the absence of fair proceedings; amandamus compelling the respondents to refer the appellant's application for asylum for full reconsideration de nova; an injunction restraining the respondents from taking any further steps in relation to the appellant's refugee status pending the determination of the proceedings; a declaration that the decision was in breach of statute, the qualification directive, Statutory Instrument 518/2006, the Procedures Directive, national justice, fair procedures and was disproportionate.

9

The affidavit sworn for the purpose of verifying the facts set out in the statement required to ground the application for judicial review was by the appellant's mother. She deposedinter alia in paragraph 8:-

"I say that adequate State protection would not be available for the [appellant] in Nigeria in the event of her being sent there and that internal relocation would not be a viable option for her without undue hardship".

10

The grounds upon which relief was sought in the judicial review were as follows:-

(a) The appellant herein sought asylum in Ireland. Following interviews with servants or agents of the Commissioner with the appellant's mother, the application was refused in a decision of the Commissioner dated the 1st June/12th July 2011. The decision was received by the appellant's mother and next friend on or about the 5th August 2011.

(b) The Commissioner erred in law and in fact and in breach of fair procedures in failing to have due regard for its obligations pursuant to the European Communities (Eligibility for Protection) Regulations 2006 and/or Council Directive 2004/83/EC of 29th April 2004.

(c) The appellant's claim for a declaration of refugee status under s. 17(1) of the Refugee Act, 1996(as amended) has not been, nor cannot by reference to the terms of the Refugee Act, 1996 (as amended), and Council Directive 2005/85/EC of 1st December, 2005 lawfully determined by means of procedure which complies with the minimum standards required to be met by Council Directive 2005/85/EC of 1st December, 2005 in that the said procedure deprives or will deprive the appellant of an effective remedy against the first instance determination of her application for asylum before a Court or Tribunal in compliance with requirements of Ch 5 of the said Directive.

(d) The Decision was reached without consulting sufficiently precise, relevant and up to date country information from various sources as required by Article 8(2)(b) of the Procedures Directive and is thus invalidated.

(e) No adequate regard has been had to the minimum standards mandated by the Procedures Directive and/or the Qualification Directive and/or S.I. 518/2006. In particular and without prejudice to the generality of the foregoing no cooperation took place as between the Commissioner as required by the terms of the Qualification Directive. The decision should have been provided in draft form to the appellant's mother prior to its finalisation.

(f) The decision is irrational. Without prejudice to the generality of the foregoing, the decision relies upon the findings of the appellant's mother's claim/refusal. The rejection of the appellant's claim was basedinter alia upon the following finding: "Given the applicant's mother has failed to establish that she has a well-founded fear of persecution in Nigeria, it follows that a well-founded fear of persecution has not been established in this case". This is irrational in circumstances where the claims are not identical.

(g) No independent assessment of the appellant's claim took place. No reliance should have been placed on her mother's refusal, particularly, but without prejudice to the generality of the foregoing, in circumstances where the mother's application was not subject to the minimum standards demanded by the Procedures Directive.

(h) The Commissioner failed to carry out any or any proper forward looking test as is required by,inter alia the UNHCR Handbook.

(i) Internal Relocation was not assessed in compliance with the Procedures Directive and/or Qualification Directive and/or relevant UNCHR Guidelines.

(j) The best interests of the child were not properly taken into account as required by domestic and European Law.

(k) State Protection was not properly assessed in accordance with The Qualification Directive. In particular the effectiveness of any laws in place was not assessed at all. The availability of any assistance that might be available to the appellant from NGO's should not have been considered given the weight that it was.

(l) Insufficient or inadequate or no consideration of the appellant's application.

11

The return date for the appellant's motion was the 3rd October, 2011. On that date it was adjourned. There is a lengthy delay in the High Court in hearing such applications. The appellant's application for leave to apply for judicial review was never heard.

12

By Notice of Motion dated the 11th November, 2011, made returnable for the 12th December, 2011, the respondents sought an order dismissing the proceedings of the appellant on the grounds that they were frivolous, and/or vexatious, and/or doomed to fail, and/or an abuse of the process....

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