The High Court has granted a child applicant leave to seek judicial review of an asylum refusal, on the sole ground that the Refugee Applications Commissioner relied on an incorrect statement that Nigeria had been designated a safe country of origin.
The ruling, delivered by Mr Justice McGovern on 16 May 2007, does not quash the refusal or decide whether the child is entitled to refugee status. It permits the challenge to proceed and directs the Commissioner who determined the application to provide an affidavit addressing the issue.
The judgment is circulated in redacted form. It identifies the applicants by initials: F. O., the mother, and her two minor children, Y. O. and A. O. The application before the court was brought by the third named applicant, a boy born in Ireland on 5 August 2005. His application for refugee status had been refused by the Refugee Applications Commissioner, and no appeal had been made to the Refugee Appeals Tribunal.
The judge recorded that counsel for all parties accepted that neither Nigeria nor Benin had been designated by the Minister as a safe country of origin. The Commissioner’s report nevertheless stated that the applicant’s country of nationality or residence had been so designated, engaging a presumption under section 11A of the Refugee Act 1996 that he was not a refugee unless he showed reasonable grounds otherwise.
The judge noted that the safe-country argument had not appeared in the original or amended grounds or in the affidavit supporting the leave application. It was raised in written legal submissions. The respondents had notice of it and addressed it in submissions and an affidavit, but the judge was not impressed that the point was introduced so late. He also considered that an explanation attributing the statement to an administrative slip should have come directly from the authorised officer who investigated the claim.
Despite those concerns and the absence of an appeal, the judge concluded that the alleged error was a substantial ground for contending that the Commissioner’s decision should be quashed and deserved full argument. He granted leave on the sole ground that the application had been assessed on the basis of a fundamental error of fact giving rise to the section 11A presumption. The order was limited to permission to bring judicial review; the substantive challenge remained to be determined.