The High Court refused a seven-year-old applicant leave to seek judicial review of a negative asylum recommendation, finding that her objections did not meet the exceptional threshold for court intervention before her statutory appeal.
Mr Justice Cooke delivered the judgment on 14 October 2009. The applicant, identified as O. S., was born in Vukovar in Croatia in 2002 and came to Ireland with her parents in 2004. Her father applied on her behalf after her parents’ own asylum applications failed. A Refugee Applications Commissioner officer issued a negative recommendation on 5 March 2008. An appeal had been initiated but was held pending the judicial review case.
The application relied on the father’s account of difficulties the family said they had faced in Croatia, including discrimination against Serbs, restrictions affecting housing and Orthodox religious practice, and concerns that the child would face problems at school and not receive treatment for a bone disease. The account also included an incident in which the child was with her mother when a woman attacked the mother. The family said police had told them they could do nothing because the woman was mentally ill.
The Commissioner’s report proceeded on the statutory presumption that Croatia was safe, while considering whether there were reasonable grounds to treat the child as a refugee. It relied on US State Department reports describing slow improvement, reduced violence and available state protection. The applicant argued that her own country information had been ignored, that she had no opportunity to comment on the material relied upon, and that the report failed to give proper weight to her rights as a child.
Justice Cooke rejected the claim that the applicant’s documents had been disregarded. He said they were listed in the report and discussed at interview, where the gist of the officer’s reliance on country information was explained. He also held that the interview was an inquisitorial information-gathering process, not an adversarial hearing requiring debate over general country material.
The court considered that a written appeal was suitable for the applicant’s challenge to how documentary evidence had been weighed. Whether the safe-country presumption was displaced for this family was for the Commissioner and the Refugee Appeals Tribunal, not the High Court on judicial review.
On the UN Convention on the Rights of the Child, the judge noted that it had been ratified but not incorporated into Irish law. He also said the child had been present at interview and could make a written statement on appeal. The court refused leave; it did not decide the underlying asylum appeal or whether the family would be safe if returned to Croatia.