Odunbaku(a minor) v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 01 February 2006
• Neutral Citation: [2006] IEHC 28
• Docket Number: [No. 114 J.R./2005]
• Court: High Court
• Date: 01 February 2006

[2006] IEHC 28

THE HIGH COURT

[No. 114 J.R./2005]

ODUNBAKU & O'MAHONY v REFUGEE APPLICATIONS COMMISSIONER & ORS

BETWEEN

AMINAT SHOLA ODUNBAKU (A MINOR SUING BY HER NEXT FRIEND) PETER O'MAHONY

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

ARKLOW HOLIDAYS LTD v BORD PLEANÁLA & ORS UNREP HIGH COURT CLARKE 18.1.2006

MOKE v REFUGEE APPLICATIONS COMMISSIONER UNREP HIGH COURT FINLAY GEOGHEGAN 6.10.2005

IMMIGRATION

Asylum

Unaccompanied minor - Age assessment - Natural justice - Extension of time to bring proceedings - Whether inaccurate age assessment could have had material impact on asylum application - Whether reasons justifying extension of time - Whether substantial grounds established - M(A) v Refugee Applications Commissioner [2005] IEHC 317 (Unrep, Finlay Geoghegan J, 6/10/2005) distinguished; Arklow Holidays Ltd v An Bord Pleanála [2006] IEHC 15 (Unrep, Clarke J, 18/1/2006) considered - Leave to apply granted (2005/114JR - Clarke J - 1/2/2006) [2006] IEHC 28O (AS) (a minor) v Refugee Applications Commissioner

Facts: the applicant sought leave to challenge the decision of the respondent not to treat her as a minor when considering her application for asylum. She contended, inter alia, that the age assessment was invalid and adversely affected the assessment of her credibility by the respondent.

Held by Clarke J in granting leave that there were substantial grounds for arguing that the appropriate procedures were not followed by the respondent when determining that the applicant was purportedly not an unaccompanied minor asylum seeker. That in order that an invalid age assessment could be challenged as affecting any subsequent decisions made by the respondent, or on appeal, it was necessary that the impugned age assessment decision had some material and practical effect upon the applicant’s asylum process. In this respect, the assessment of an account given by a person could be materially affected by the age of the person concerned.

Reporter: P.C.

Mr. Justice Clarke

1. Introduction

2 1.1 In this case the applicant ("Ms. Odunbaku") seeks to challenge a number of decisions made prior to and in the course of her application by asylum. This case is somewhat unusual in that issues have arisen concerning the status of Ms. Odunbaku as a possible minor. As is clear from the title of these proceedings Ms. Odunbaku maintains that she remains, at this stage, under 18 and, therefore, sues by a next friend. In circumstances which I will outline more fully it was determined by the Refugee Applications Commissioner ("RAC") on 30th January, 2004 that Ms. Odunbaku was not to be treated as a minor on the basis of a view taken by the RAC that she was, even at that stage, already beyond 18 years of age.

3 1.2 While there is also a challenge to the subsequent determinations made, in the ordinary way in the course of the asylum process, by each of the RAC, the Refugee Appeals Tribunal ("RAT") and ultimately by the Minister for Justice, Equality and Law Reform ("the Minister") in the course of the consideration of the refugee status of Ms. Odunbaku, for reasons which will become clear in the course of this judgment, the central thrust of the challenge in this case is to the original decision to treat Ms. Odunbaku as not being a minor. The subsequent decisions are challenged not on the basis of any contended for independent failing in the process but because, it is said, those decisions are effected in a material way by the fact that in the course of the consideration of each of the persons or bodies concerned, Ms. Odunbaku was, wrongly it is said, treated as being of full age.

4 1.3 Finally it should be noted that this is a leave application. In those circumstances it is, in accordance with the established jurisprudence, necessary for me to consider whether substantial grounds have been established. In that context I propose applying the approach which I adopted in the analogous area of an application challenging a decision in the environmental law area as set out in my judgment in Arklow Holidays Ltd v. An Bord Pleanála and Others (Unreported, High Court, Clarke J., 18th January, 2006). For the reasons set out in that judgment I have come to the view that where leave is granted in an application on notice requiring that substantial grounds be established the court should set out the reasons for the grant of leave in a manner sufficient to explain why leave was granted but should refrain from expressing any view beyond that on the merits of the contentions put forward. As the assessment of the relevant arguments will ultimately be a matter (in the event that leave is given) for the judge having carriage of the substantive hearing, it would not, in my view, be appropriate at the leave stage to go further.

2. The Facts

2 2.1 It would appear that Ms. Odunbaku arrived in Ireland in June 2003. She has given her date of birth as 8th of September, 1988 (although this is, as I have noted, a matter of some controversy). On the basis of her stated date of birth she was 14 years of age on her arrival in the State. On her arrival she was unaccompanied and was the subject of age assessment interviews carried out by the RAC on respectively on 3rd July, 2003 and 4th July, 2003. While there were some minor differences between the views of those who carried out the respective assessments on those occasions it would appear that the overall conclusion was to the effect that the applicant was "estimated to be in the region of 16 going on 17". In other words it appears to have been accepted that the applicant's date of birth was 8th September though the view would appear to have been taken by the RAC was that she must have been born in 1986 rather than 1988.

3 2.2 In any event Ms. Odunbaku was thereafter placed in a hostel which, on the evidence, appears to be a reception centre for minors under the age of 16. While in that hostel she was in the care of the East Coast Health Authority.

4 2.3 It would appear that in January 2004 a social worker at the hostel wrote to the RAC indicating a suspicion that Ms. Odunbaku was in fact over 18 years of age. As a result of this communication a further interview was arranged on 30th January with an official of the RAC. At and after this interview a re-assessment appears to have been engaged in by the same official who had, in fact, carried out the assessment on 4th July of the previous year. The re-assessment would appear to have taken the view that Ms. Odunbaku was over 18 years of age.

5 2.4 Thereafter Ms. Odunbaku made an application for asylum which was processed in the ordinary way. She sought the services of the Refugee Legal Service ("RLS") on 3rd February, 2004 and, it would appear, was classified as a minor by that service. On her behalf the RLS wrote to the RAC on 24th February, 2004 requesting reasons for the re-assessment of age. The interview which was due to be carried out in the ordinary way by the RAC was scheduled for 1st March. By faxed letter of 27th February the RLS wrote to the RAC expressing dissatisfaction...