Y (S) & Y (R) v Refugee Appeals Tribunal & Law Reform

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 13 January 2009
• Neutral Citation: [2009] IEHC 18
• Court: High Court
• Date: 13 January 2009

[2009] IEHC 18

THE HIGH COURT

[No. 114 J.R./2008]

Y (S) & Y (R) (A Minor) v Refugee Appeals Tribunal & Min for Justice

BETWEEN

S.Y & R.Y. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND S.Y.)

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL & THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

EEC REG 343/2003

REFUGEE ACT 1996 S11(1)

REFUGEE ACT 1996 S13

REFUGEE ACT 1996 S17

REFUGEE ACT 1996 S17(4)

NWOLE v MIN FOR JUSTICE & ORS UNREP FINLAY-GEOGHEGAN 26.3.2004 2003/42/10103 2003 IEHC 72

EMEKOBUM & ORS v MIN FOR JUSTICE & ORS UNREP SMYTH 18.7.2002 2002/10/2387

N (A) v MIN FOR JUSTICE & ORS UNREP SUPREME 18.10.2007 2007/43/9091

GLENCAR EXPLORATION v MAYO CO COUNCIL (NO2) 2002 1 IR 84

POWER v MIN FOR SOCIAL & FAMILY AFFAIRS 2007 1 IR 543

ABRAHAMSON v LAW SOCIETY OF IRELAND 1996 1 IR 403

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S6(3)

IRISH NATIONALITY & CITIZENSHIP ACT 2001 S3(1)

IRISH NATIONALITY & CITIZENSHIP ACT 1956 S28

IMMIGRATION

Asylum

Transfer of refugee status - Asylum granted in another member state - Asylum sought here - Refusal to conduct investigation on basis of futility - Absence of power to make declaration where refugee status granted in another state - Absence of fear of persecution if returned to member state - Whether mandatory obligation to conduct interview - Legitimate expectation - Reliance on report - Unspecified origin and status of report - Document not emanating from official State organ - Essential elements for legitimate expectation - Whether representation by public authority addressed to identifiable person or group - Whether representation such as to create expectation that public authority would abide by it - Statement not made by State organ - Absence of reliance on report - Inapplicability of doctrine of legitimate expectation where unlawful to permit benefit - Absence of ministerial discretion - Citizenship of daughter - Failure to apply for certificate of nationality - Nwole v Minister for Justice [2004] IEHC 433, (Unrep, Peart J, 26/05/2004), Emekobum v Minister for Justice (Unrep, Smyth J, 28/07/2002), Nwole v Minister for Justice [2003] IEHC 72 (Unrep, Finlay Geoghegan J, 31/10/2003), AN v Minister for Justice [2007] IESC 44 [2008] 2 IR 48, Glencar Exploration v Mayo County Council (No 2) [2002] 1 IR 84, Power v Minister for Social and Family Affairs [2006] IEHC 170, [2007] 1 IR 543 and Abrahamson v Law Society of Ireland [1996] 1 IR 403 considered - Irish Nationality and Citizenship Act 1956 (No 26), ss 6 and 28 - Refugee Act 1996 (No 17), ss 11 and 17 - Relief refused (2008/114JR - McMahon J - 13/1/2009) [2009] IEHC 18

Y(S) v Refugee Appeals Tribunal

Facts: The applicant who was from Eritrea but had lived all her life in Sudan, applied for asylum in Ireland after being lawfully admitted to Ireland on Italian travel documents. She sought to transfer her claim to Italy. She also sought a declaration that her child born in Ireland was a citizen of Ireland. The applicant alleged that the respondent could not refuse to conduct an investigation pursuant to the Refugee Act 1996, as amended, in a pre-emptive way as it had done, by concluding that it would be futile to investigate her circumstances. The applicant also sought to rely upon the doctrine of legitimate expectation in support of her contention.

Held by McMahon J. there was no mandatory obligation on the Commissioner to conduct an interview in all cases. The representation relied upon by the applicant was not a promise or a representation as to how the respondents would act in an asylum transfer situation. It could not have been said that there was a statement of promise made by or on behalf of the respondents. It was quite clear from the affidavits that the applicant had not relied on acts or on any representation. There was no injustice done to the applicant. The government had not ratified the 1980 agreement the subject of an official report. The relief sought by the second named applicant would not be granted.

Reporter: E.F.

1 JUDGMENT of Mr. Justice McMahon delivered on the 13th day of January, 2009

2 The applicant arrived in Ireland in or about 9 ^th October, 2006. Her date of birth is 16 ^th November, 1983. Although ethnically from Eritrea, she has lived all her life in Sudan, but was not entitled to citizenship in either Sudan or Eritrea. She was a stateless person. She first came to Europe through Italy where she was recognised as a refugee in July, 2005. She was lawfully admitted into Ireland on her Italian travel documents.

3 She applied for asylum in the State on her arrival on 9 ^th October, 2006, and she duly completed the appropriate application forms. She was interviewed on the following day by an officer from the Refugee Applications Commissioner's office when she informed him that she had got asylum in Italy and that she had left Italy to come to Ireland because she could no longer live in Italy as the economic and social conditions were very difficult. She could find no work and had no proper home. She felt very vulnerable in the social circumstances in which she found herself, particularly since she was pregnant.

4 Initially, the Refugee Applications Commissioner (R.A.C.) refused her permission and attempted to transfer her claim to Italy pursuant to the provisions of Council Regulation E. C./343/2003 of 18 February, 2003, establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, O.J.L. 050/1 25.2.2003 ("the Dublin Regulation"). It subsequently transpired, however, that this was an error and the Refugee Appeals Tribunal (R.A.T.) indicated then that they would not enforce the transfer order made against her under that Regulation.

5 On 14 ^th June, 2007, she received a further communication from the office of the Refugee Applications Commissioner which conveyed the following decision to her. (The full letter is reproduced hereunder.)

"Dear Ms. Y.,

I refer to your applications for asylum to the Office of the Refugee Application Commissioner on 10/10.2006.

From an examination of the documents which you have produced in relation to your status it is noted that you were granted asylum in Italy. As you have not claimed to have a fear of persecution in that state and in accordance with Section 17(4) of the Refugee Act, 1996, as amended, the Minister is precluded from giving a declaration that you are a refugee. No purpose would be served by investigating your claim, accordingly your application is not being admitted for processing."

6 Shortly thereafter on 19 ^th June, 2007, she received another letter, this time from the office of the Minister for Justice, Equality and Law Reform which replied to her letter dated 18 ^th May, 2007, wherein she had requested that the refugee status granted to her in Italy should be transferred to Ireland.

"Dear Madam,

I am directed by the Tánaiste and Minister for Justice, Equality and Law Reform to acknowledge receipt of your facsimile correspondence dated 18 May 2007 which has been forwarded to this Unit for attention.

Please note that there is no provision in Irish law which allows for the transference of refugee status granted in another E.U. State to Ireland."

7 On 5 ^th February, 2008, leave to apply by way of application for judicial review was granted by Charleton J. for orders of certiorari quashing the decision of the first named respondent (the R.A.C.) of 14 ^th June, 2007 (reproduced above) and the decision of the Minister, the second respondent, dated 19 ^th June, 2007 (also reproduced above). The applicant also sought on behalf of the second named applicant (her daughter was born while the first named applicant was living here) a declaration that the latter is a citizen of Ireland as she was born in Ireland on 4 ^th January, 2007. It is as a result of this leave that the matter is now before this Court.

8 The main complaint of the applicant is that the R.A.C. cannot refuse to conduct an investigation mandated by the Refugee Act 1996 in a pre-emptive way by concluding that such an investigation would be futile because, as the applicant came to Ireland from Italy, the Minister at the end of the day did not have any statutory power to give her a declaration of recognition as a refugee.

9 The applicant relies on the provisions of the Refugee Act 1996, to support her application and in particular relies on s. 11 of that Act, subs. 1 of which...