A. [a minor] -v- MJE & Ors, [2013] IESC 18 (2013)

Docket Number:09/2012
Party Name:A. [a minor], MJE & Ors
Judge:Denham C.J.
 
FREE EXCERPT

THE SUPREME COURT

Appeal No: 9/2012

Denham C.J.

Murray J.

Clarke J.

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

Judgment delivered on the 14th day of March, 2013 by Denham C.J.

Preliminary Issue

  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.

    Appellant’s proceedings – Notice of Motion

  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; a mandamus 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 deposed inter 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...

To continue reading

REQUEST YOUR TRIAL