S.O. v Minister for Justice, Equality and Law Reform, Ireland and Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 04 June 2010 |
| Neutral Citation | [2010] IEHC 245 |
| Docket Number | 871 JR/2007 |
| Court | High Court |
| Date | 04 June 2010 |
[2010] IEHC 245
THE HIGH COURT
IMMIGRATION
Asylum
Judicial review - Leave - Fair procedures - Failure of respondent to undertake age assessment - Applicant not treated as unaccompanied minor - Appropriateness of remedy sought - Adverse credibility findings - Whether breach of fair procedures - Whether respondent obliged to undertake age assessment - Whether any failure invalidated report of respondent - Whether judicial review appropriate remedy - AM v Refugee Applications Commissioners [2005] IEHC 317 [2006] 1 IR 476 distinguished; Odunbaku (A minor) v Refugee Applications Commissioner [2006] IEHC 28 (Unrep, Clarke J, 1/2/2006) considered - Refugee Act 1996 (No 17), ss 8 &13 Leave refused (2007/871JR - Birmingham J - 4/6/2010) [2010] IEHC 245
SO v Minister for Justice, Equality and Law Reform
REFUGEE ACT 1996 S13(1)
REGUGEE ACT 1996 S8(5)
ODUNBAKU & O'MAHONY v REFUGEE APPLICATIONS COMMISSIONER & ORS UNREP CLARKE 1.2.2006 2006 IEHC 28
Judgment ( Ex-tempore) of Mr. Justice Birmingham delivered the 4 day of June 2010
1. The applicant is a young Nigerian national who has sought asylum in the State. She arrived in the State on 26 th April, 2007 and some days later, she submitted an asylum application and was interviewed in relation to that application on 17 th May 2007.
2. On the 27 th May, 2007, a report of the Office of The Refugee Applications (Commissioner) ("O.R.A.C.") prepared pursuant to s. 13(1) of the Refugee Act 1996 as amended, recommended that she not be declared a refugee. The applicant now seeks leave to challenge that decision by way of judicial review.
3. A short extension of time is required if the challenge is to be permitted to proceed. The circumstances which have contributed to the delay in bringing the application are fully and satisfactorily explained in an affidavit sworn on the 9 th July, 2007, by the solicitor for the applicant. In the circumstances I am quite satisfied that this is an appropriate case in which to extend time.
4. In summary the factual issues that give rise to the present challenge relate to the applicant's age.
5. At Dublin Airport she stated her date of birth as 27 th July, 1988 and at that stage she also stated that her name was Joy Williams. Later when she came to apply for asylum she gave the name S.O. (the name that appears in the title of the proceedings) and gave her date of birth as the 27 th May, 1991.
6. No formal age assessment was undertaken and matters proceeded as if the applicant's date of birth was as stated by her at Dublin Airport. The introduction to the report prepared pursuant s. 13(1) of the Refugee Act, 1996 (s. 13(1) report) refers to this issue where it is stated "on arrival in the State the applicant gave her name as Joy Williams and her date of birth as the 27 th May 1988. She later gave her name as S.O. and date of birth as the 27 th May, 1991. She has not been accepted as a minor".
7. On behalf of the applicant it is submitted that in a situation where the applicant was contending in the course of the asylum application that her date of birth was 27 th May, 1991 with the consequence that if that was so she was an unaccompanied minor, it was obligatory for O.R.A.C. to undertake an age assessment. It is said that because of the failure to conduct an age assessment, and instead proceed as if the applicant was a person of full age, that there has been a want of fair procedure. It is said that the result of the failure to carry out an age assessment, is that the procedure recommended in the 'Handbook on Procedures and Criteria for Determining Refugee Status' issued by the United Nations High Commissioner for Refugees as well as the 'Guidelines on Policies and Procedures for Dealing with Unaccompanied Children Seeking Asylum' have not been complied with. It is contended that the decision not to conduct an age assessment and instead to proceed as if the applicant was an adult has had practical consequences. It is pointed out that the applicant was denied the benefit of the assistance of a guardian appointed by the Health Service Executive. Thereafter O.R.A.C. found the account given by the applicant not to be credible. It is said that had it been realised that the account that was being assessed was that of a minor, a more tolerant approach might have been taken to divergences and deficiencies in the narrative and that the outcome might have been different.
8. The parties are agreed that the case gives rise to three issues, namely:-
(1) Did the failure to undertake an age assessment amount to a breach of fair procedures?
(2) If there was a failure to adhere to fair procedures or if the procedure actually adopted is for other reasons defective does this invalidate the s. 13 report?
(3) Is this a case where judicial review is the appropriate remedy or should the applicant be left to her remedy by way of appeal to the Refugee Appeals Tribunal?
9. There does not appear to be any specific statutory stipulation mandating the carrying out of an age assessment. Indeed, it made be said, that the question of the age of applicants does not feature as a prominent issue in the Refugee Act 1996 (hereinafter, the Act of 1996). A person of any age can claim asylum and the definition of what constitutes a refugee does not vary depending upon the age of the applicant. In general, therefore, the legislation does not distinguish between adults and minors. However, s. 8(5) of the Act of 1996, as amended by s. 11 of the Immigration Act 1999, makes limited special provisions for certain minors and provides:-
a "(a) Where it appears to an immigration officer or an authorised officer that a child under the age of 18 years, who has either arrived at the frontiers of the State or has entered the State, is not in the custody of any person, the officer shall, as soon as practicable, so inform the health board in whose functional area the child is and thereupon the provisions of the Child Care Act, 1991 shall apply in relation to the child.
(b) Where it appears to the health board concerned, on the basis of information available to it, that an application for a declaration should be made by or on behalf of a child referred to in paragraph (a), the health board shall arrange for the appointment of an officer of the health board or such other person as it may determine to make an application on behalf of the child".
10. While there may be no statutory requirement or certainly no detailed statutory procedures set out in relation to age assessment it is in fact a task that has to be undertaken from time to time. One reason why this is so, is that the age of the applicant has significant practical effects when it comes to arranging for accommodation. If the individual is an unaccompanied minor then it would obviously be inappropriate to place that person in a centre for adult asylum seekers. Conversely, if someone claiming to be an unaccompanied minor is in fact an adult, then it would not be in the interest of other minors seeking asylum if such an adult was placed amongst them. Given the practical need to segregate applicants by age, a practice of carrying out age assessments has developed. In the case of A.M. v The Refugee Applications Commissioners [2006] 1 I.R. 476 Finlay Geoghegan J. offered some guidance as to the procedures which would have to be followed in carrying out an age assessment if the rules of natural justice were not to be breached. It will be appreciated that the A.M. decision is not directly in point because here no age assessment was in fact carried out but rather in a situation where the applicant had quoted a date of birth which meant that she was of full age, she was simply not accepted as a minor or dealt with as if she was a minor.
11. It seems to me that if a live issue arises as to whether an applicant is in fact an unaccompanied minor then it would be desirable that the procedures in relation to age assessment should be invoked. In the present case, where the applicant had quoted two different dates of birth, by...
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