The High Court has granted a South African teenager leave to bring judicial review proceedings challenging a recommendation that she not be declared a refugee. The court did not decide her refugee claim or quash the recommendation at this stage.
The judgment, delivered by Mr Justice Bryan McMahon on 11 July 2008, concerns an applicant anonymised as P.S., who was 14 when she arrived in Ireland in May 2006. The judgment says she had been raped in South Africa, was pregnant on arrival and gave birth to a stillborn baby. She was later treated in intensive care.
The Refugee Applications Commissioner recommended against granting her refugee status after an interview and assessment. The applicant’s appeal to the Refugee Appeals Tribunal was stayed while the judicial review proceedings were pending.
Her lawyers argued that country information used in the assessment had not been disclosed in time for her or her mother to respond, and that the Commissioner had selectively relied on material about state protection in South Africa. They also argued that the interview and assessment did not adequately account for her age and circumstances. The respondents argued that her concerns could be addressed in the statutory appeal.
The judge found that, for the most part, the Commissioner was not required to put general country information to the applicant in more detail. But he found that the Commissioner had selectively quoted a passage about protections for women while omitting material that qualified it, and had not rationally analysed the conflicting information or explained why one view was preferred.
The judge also said the applicant’s vulnerability required care in interpreting her interview answers. He considered the suggestion that she may have had motives other than fear of persecution to be close to speculation, and said any suspicion that she had come to Ireland to be with her mother or obtain medical care should have been put clearly to her.
The court granted leave on all grounds advanced, except for one constitutional argument, which it ruled had been raised too late. The judge did not determine the constitutional issues. The order was permission to bring judicial review proceedings; the judgment does not report a final ruling on the legality of the recommendation or the applicant’s entitlement to refugee status.