S (P)(A Minor) v Refugee Applications Commissioner and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Bryan McMahon,Mr Justice Cooke
• Judgment Date: 18 June 2009
• Neutral Citation: [2009] IEHC 298,[2008] IEHC 235
• Court: High Court
• Date: 18 June 2009

[2008] IEHC 235

THE HIGH COURT

[No. 836 J.R./2006]

S (P) (A Minor) v Refugee Applications Commissioner

JUDICIAL REVIEW

BETWEEN

P.S. (A MINOR SUING THROUGH HER MOTHER AND NEXT FRIEND B.O.)

APPLICANT

AND

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

RESPONDENTS

REFUGEE ACT 1996 S13(6)(e)

REFUGEE ACT 1996 S12

REFUGEE ACT 1996 S11A

REFUGEE ACT 1996 (SAFE COUNTRIES OF ORIGIN) ORDER SI 714/2004

REFUGEE ACT 1996 S11(3)(a)

REFUGEE ACT 1996 S13(10)

IMMIGRATION ACT 2003 S7

REFUGEE ACT 1996 S13(1)

REFUGEE ACT 1996 S11

REFUGEE ACT 1996 S13(5)

CONSTITUTION ART 40.4

REFUGEE ACT 1996 S12(4)

CONSTITUTION ART 40.3

UN CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 ART 3

REFUGEE ACT 1996 SCHED II

REFUGEE ACT 1996 S17(1)(b)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)(a)

REFUGEE ACT 1996 S11(3)

REFUGEE ACT 1996 S13(6)

REFUGEE ACT 1996 S2

MOYOSOLA v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP CLARKE 23.6.2005 2005/40/8261 2005 IEHC 218

OLATUNJI v REFUGEE APPEALS TRIBUNAL (TAIT) & MIN FOR JUSTICE UNREP FINLAY GEOGHEGAN 7.4.2006 2006/46/990 2006 IEHC 113

S (DVT) v MIN JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP EDWARDS 4.7.2007 2007 IEHC 305

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 1992 PARA 62

Z (A) v REFUGEE APPLICATIONS COMMISSIONER & MIN JUSTICE UNREP MCGOVERN 6.2.2008 2008 IEHC 36

JOLLY v MIN JUSTICE UNREP FINLAY GEOGHEGAN 6.11.2003 2003/28/6616 2004 IEHC 36 EX TEMPORE

Z v MIN JUSTICE & ORS 2002 2 IR 135 2002 2 ILRM 215

IMMIGRATION

Asylum

Judicial review - Fair procedures - Whether specific matter pertaining to applicant from country of origin information put to applicant at interview - Whether applicant had full opportunity to comment and respond to country of origin information - Whether matter relevant to determination -Whether decision ultra vires and without efficacy - Whether investigation, report and recommendation conducted and concluded in infringement of applicant's right to fair procedures and natural and constitutional justice - I(V) v Minister for Justice [2005] IEHC 150, (Unrep, Clarke J, 10/5/2005), Moyosola v Refugee Appeals Commissioner [2005] IEHC 218, (Unrep, Clarke J, 23/6/2005 and Olatunji v Refugee Appeals Tribunal [2006] IEHC 113, (Unrep, Finlay Geoghegan J, 7/4/2006) followed; S(DVT) v Minister for Justice [2007] IEHC 305, (Unrep, Edwards J, 4/7/2007), Z(A) v Refugee Appeals Commissioner [2008] IEHC 36, (Unrep, McGovern J, 6/2/2008), Jolly v Minister for Justice, (Unrep, Finlay Geoghegan J, 6/12/2003) and V(Z) v Minister for Justice [2002] 2 I.R. 135 considered - Refugee Act 1996 (No 17), ss 11A, 11(3)(a) 12, 13(6)(e) and 13(10) - Leave to apply for judicial review granted (2006/836JR - McMahon J - 11/7/2008) [2008] IEHC 235

PS (an inf) v Refugee Appeals Commissioner

1 Mr. Justice Bryan McMahon the 11th day of July, 2008.

2 This is an application for leave to seek judicial review of the decision of the first named respondent in relation to an application for refugee status. The applicant in this case is a South African minor, born on the 28 ^th March, 1991. She arrived in the State on the 7 ^th May, 2006 and made an application for refugee status on the 15 ^th May, 2006.

3 When the applicant arrived at Dublin Airport on the 7 ^th May, 2006, she was in a very distressed state. Even though she was only 14 years of age she was pregnant as a result of being raped, on her way home from school, in South Africa. She was not aware that she was pregnant until she was about five or six months into her pregnancy. Upon arrival in Dublin, she was immediately transferred from the Airport to the Rotunda hospital. Shortly after being hospitalised, she gave birth to a stillborn baby boy. Thereafter, she became very unwell, went into respiratory distress and was transferred to the Intensive Care Unit in the Mater Hospital for two days. She was released from hospital on the 15th May, 2006.

4 The applicant was called for interview by the first named respondent (hereafter "the respondent") on the 21 ^st June, 2006 and was accompanied to this interview by her mother. She applied for refugee status on the grounds of a fear of persecution arising by reason of her membership of a particular social group comprising young women and/or girls. She was informed by letter dated the 28 ^th June, 2006, that the respondent was recommending that she not be declared a refugee and enclosed a copy of the s. 13(1) report of the Authorised Officer dated 26 ^th June, 2006.

5 In the present application for leave, counsel for the applicant submits that the country of origin information in the s.13(1) report was never put to the applicant or to her mother at the interview in order to allow them to address it and/or to make representations on it.

6 In her questionnaire the applicant stated that she did not report her rape to the police and was afraid to tell anyone. She further stated that she was afraid that the same thing might occur again. She was assisted by her mother in completing the questionnaire as she was very emotional and upset. In her interview she stated that she left South Africa as she was living with her grandmother who was old and would not be able to assist her when her child was born. She stated that she informed her aunt of the rape but she said that her aunt "said I was lying because she drinks".

7 The s. 13(1) report concluded that she did not establish a well founded fear of persecution. The Authorised Officer stated that while the applicant may indeed need support and assistance, there was a possibility that she had motives other than flight from persecution for departing South Africa. As the applicant is a national of, or has a right of residence in South Africa, the Authorised Officer stated that he was obliged to find that s.13(6)(e) of the Refugee Act 1996, as amended, applied as South Africa is designated a "safe country".

8 The applicant has appealed this finding to the Refugee Appeals Tribunal but this appeal is stayed pending the outcome of these judicial review proceedings.

Relief Sought

9 The applicant is applying to the Court for leave to seek the following reliefs:

10 1. A declaration that the decision of the respondent as notified by letter of the 28 ^th June, 2006, to deny the applicant refugee status and the recommendation and report of the respondent of the 26 ^th June, 2006, are ultra vires and without efficacy.

11 2. A declaration that the investigation, report and recommendation dated the 26 ^th June, 2006 and the decision of the respondent of the 28 ^th June, 2006, were carried out, conducted and concluded in infringement of the applicant's right to fair procedures and natural and constitutional justice.

12 3. A declaration that the respondent has acted ultra vires in applying and/or relying on the provisions of section 12 and section 11A and section 13(6)(e) of the Refugee Act 1996, as amended, and S.I. No. 714 of 2004 (Refugee Act 1996 (Safe Countries of Origin) Order 2004) in the processing and investigation of the applicant's application for refugee status.

13 4. Without prejudice to the foregoing and if necessary, a declaration that section 11(3)(a) and section 13 (10) of the Refugee Act 1996, (as inserted by section 7 of the Immigration Act 2003) and or/said provisions in combination are repugnant to the Constitution and are in infringement of the applicant's right to constitutional and natural justice and fair procedures.

14 5. An order of certiorari quashing the decision of the respondent of the 28 ^th June, 2006, refusing the applicant refugee status and the report and recommendation of the respondent of the 26 ^th June, 2006 pursuant to section 13(1) of the Refugee act 1996.

15 6. An order of mandamus remitting the applicant's application for refugee status for an investigation by the respondent in accordance with the directions of this Court.

16 7. An order quashing the report/interview record under section 11 of the Refugee act 1996 as amended.

17 Without prejudice to the foregoing and if necessary:

18 8. A declaration that section 13(6) and/or without prejudice section 13(6)(e) and/or these provisions in combination with section 11A of the Refugee Act 1996 as amended and/or those provisions in combination with section 13(5) of the Refugee Act 1996, as amended, are repugnant to the Constitution and Article 40.4 thereof.

19 9. A declaration that S.I. No. 714 of 2004 (Refugee Act 1996 (Safe Countries of Origin) Order 2004) is ultra vires and void and/or that said regulation insofar as it relates to South Africa is ultra vires and void.

20 10. Without prejudice to the foregoing, a declaration that the provisions of section 12(4) of the Refugee Act 1996, as amended, and/or S.I. 714 of 2004 are repugnant to the provisions of the Constitution and Article 40.3 thereof and/or without prejudice are inconsistent with the provisions of article 3 of the Convention Relating to the Status of Refugees 1951 (Second Schedule to the Refugee Act 1996).

21 11. An injunction restraining the second named respondent from taking any steps pursuant to section 17(1)(b) of the Refugee Act 1996 to affirm the recommendation to deny the applicant refugee status and/or to make a proposal to deport and/or to deport the applicant.

22 12. Further and other relief including, if necessary, an extension of time for the making of this application pursuant to section 5(2)(a) of the Illegal Immigrants (Trafficking) Act 2000 or any part thereof.

Submissions

23 Counsel for the applicant submits that information from the country of origin reports mentioned in the s.13(1) report were never put to the applicant or her mother at the interview thereby depriving her and her advisors of an opportunity to...