An Chúirt Uachtarach
The Supreme Court
Record number 2011/757/JR
Appeal number 9/2012
M A R A (Nigeria) (An infant suing by her mother and next friend O A)
The Minister for Justice and Equality, the Refugee Applications Commissioner, Ireland and the Attorney General
1. The applicant/appellant is an infant asylum seeker who was born in Ireland in late 2010. Her mother, who is also the next friend in this case, came to Ireland from Nigeria in August 2005 and applied for asylum for herself. That claim was rejected by the Refugee Applications Commissioner in November of that same year. Subsequently and separately, applications were made by her on behalf of her two daughters. On 12th July, 2011, the claim of this applicant/appellant was rejected by the Refugee Applications Commissioner. The grounds put forward by her mother for seeking the State’s protection on her behalf consisted of a claimed fear by her mother that she would be subjected to female circumcision in Nigeria and that pressure to undergo this invasive procedure would come from her family and neighbours and that defiance would have unpleasant consequences from a magic practitioner, apparently called “the Mascurate”. Leave was sought before the High Court to challenge by way of judicial review the finding refusing this infant applicant/appellant a recommendation that she be declared a refugee. This is an appeal from that judgment and order of Cooke J dated 19th December, 2011 (Unreported, High Court, Cooke J, 19th December, 2011) wherein he acceded to a motion from the respondents to dismiss the applicant/appellant’s claim for leave to commence a judicial review; holding that a High Court challenge was bound to fail. The trial judge held that whatever alleged defects there might be claimed to be in the analysis of the application by the Refugee Applications Commissioner, under section 13 of the Refugee Act 1996 as amended (“Act of 1996”), in deciding that this applicant/appellant was not a refugee, this would be most properly cured by a statutory appeal to the Refugee Appeals Tribunal and that, in all the circumstances, judicial review was not an appropriate remedy. Paragraphs 9 and 10 of his judgment state his reasoning:
Having regard to the fact that the only issue in this case is the reality of the alleged fear that this infant might be exposed to a risk of forcible circumcision against the wishes of her mother if returned to Nigeria, the Court is satisfied that no valid reason has been advanced as to why the statutory appeal in this case would be inadequate, ineffective, or inconvenient. In practical terms, as this child has never been to Nigeria and whose existence may not even be known to her mother’s husband (who has in any event disappeared), the only appealable aspects of the s. 13 Report will appear to turn upon the possibility of a general threat to the child of circumcision in Nigeria and the availability of local protection against the specific alleged threat from the family or the village, if the mother and child relocated elsewhere. These are issues that turn upon consultation of country of origin information at this stage and are clearly dealt with adequately and more conveniently by the statutory appeal.
5. The answer to the question of whether this appeal is now moot in the light of the decision of the Refugee Appeals Tribunal depends upon the proper construction of the nature of the appeal to that body from the decision of the Refugee Applications Commissioner. That appeal, it is argued on behalf of the respondents, is in the nature of a complete re-hearing where, as a matter of statutory construction, the obligation on appeal that is cast upon the Refugee Appeals Tribunal is to fully consider and pronounce on each and every ground upon which an applicant for asylum has taken an appeal, or to otherwise make a decision as to the substance of the appeal.
6. The Refugee Act 1996, as amended, governs the process of asylum applications. Under section 2 of the Act of 1996, as amended by section 7(a) of the Immigration Act 2003, the fundamental definition of what is a refugee is given:
(b) is recognised by the competent authorities of the country in which he or she has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country,
(c) there are serious grounds for considering that he or she—
(ii) has committed a serious non-political crime outside the State prior to his or her arrival in the State, or
(iii) has been guilty of acts contrary to the purposes and principles of the United Nations.
(2) Without prejudice to the generality of subsection (1), a person's freedom shall be regarded as being threatened if, inter alia, in the opinion of the Minister, the person is likely to be subject to a serious assault (including a serious assault of a sexual nature).
9. Under the Act of 1996, the Refugee Applications Commissioner is established under section 6. It is declared that this statutory person “shall be independent in the exercise of his or her functions under this Act.” Pursuant to section 8, a person who arrives at the frontiers of the State seeking asylum shall be interviewed by an immigration officer, and the immigration officer shall inform that person that he or she may apply under section 8(1)(a) for a declaration of refugee status and that he or she is entitled to consult a solicitor and the United Nations High Commissioner for Refugees, or a representative in Ireland. A person so applying, under section 9, is to be given leave to enter the State. Additionally, a person who at any time is in the State (whether lawfully or unlawfully) and is seeking the status of a refugee may apply to the Minister for a declaration of refugee status pursuant to section 8(1)(c). On such an application being made, a person unlawfully in the State becomes an applicant for asylum, and thus lawfully in the State for that purpose under section 5 of the Immigration Act 2004. If a person does so apply, he or she is to be interviewed by an authorised officer or an immigration officer, who must inform the person that he or she is entitled to consult a solicitor and the High Commissioner. An applicant for refugee status is entitled to remain in the State until that process is complete pursuant to section 9(2) of the Act of 1996. This application process can be completed by the grant of refugee status, by refusal, by withdrawal of the application or by transfer to another country under the Dublin Convention. As provided for in section 11 (as amended), the function of the Refugee Applications Commissioner is “to investigate the application for the purpose of ascertaining whether the applicant is a person in respect of whom a declaration should be given.” This will involve giving directions to an authorised officer to interview the applicant concerned and to furnish a report. Under section 11A, as inserted by section 7(f) of the Immigration Act 2003, an applicant “shall be presumed not to be a refugee unless he or she has shown reasonable grounds for the contention that he or she is a refugee.” The function of the Refugee Applications Commissioner is to recommend to the Minister for Justice, Equality and Law Reform whether an applicant should be declared to be a refugee. Should a recommendation be negative, section 11A (3) provides that where an applicant appeals “against a recommendation of the Commissioner under section 13, it shall be for him or her to show that he or she is a refugee.” Credibility is central to that process. Particular provisions are set out in section 11B as to the assessment of credibility. There is a duty of cooperation upon an applicant who, under section 11C, is obliged to “furnish to the Commissioner or the Tribunal, as may be appropriate, as soon as reasonably practicable, all information in his or her possession, control or procurement relevant to his or her application.” The consequent report that is furnished to the Minister is made under section 13 (as amended). A special provision within that section can constrict the form of appeal that is available. Section 13 (5) enables a limitation on the statutory right of appeal to a documentary appeal only where no basis, or a minimal basis, has been shown for the contention that the applicant is a refugee; where false, contradictory, misleading or incomplete information has been given; where the applicant failed without reasonable cause to make an application as soon as reasonably practicable after arriving in the State; where the applicant had lodged a prior application for asylum in another state which is party to the Geneva Convention; or where the applicant was a national of, or has a right of residence in, a country of origin which has been designated a safe country by order under section 12(4). Croatia and South Africa are examples of such safe countries. Where the Refugee Applications Commissioner has decided not to recommend that an applicant be given the status of a refugee, such an applicant has, under section 13(10), an entitlement to reasons in writing together with an indication of the nature and source “of any other information relating to the application which has come to the notice of the Commissioner in the course of an investigation by him or her”. The nature of the process is investigative. It is not adversarial or bound by rules of procedure or evidence. Its purpose is to find the truth by enquiry.
10. Section 15 of the Act of 1996, as substituted by section 11(1)(j) of the Immigration Act 1999, provides for the setting up of the Refugee Appeals Tribunal as follows:
(2) The Tribunal shall be independent in the performance of its functions.
(3) The provisions of the Second Schedule shall have effect in relation to the Tribunal.
(2) The Tribunal may—
(a) affirm a recommendation of the Commissioner, or
(a) it appears to the Tribunal that an applicant is failing in his or her duty to co-operate with the Commissioner or to furnish information relevant to his or her appeal, or
(b) the Minister notifies the Tribunal that he or she is of opinion that the applicant is in breach of subsection (4)(a), (4A) or (5) of section 9,
the Tribunal shall send to the applicant a notice in writing inviting the applicant to indicate in writing (within 15 working days of the sending of the notice) whether he or she wishes to continue with his or her appeal and, if an applicant does not furnish an indication within the time specified in the notice, his or her appeal shall be deemed to be withdrawn.
(3) An appeal under this section shall be brought by notice in writing within the period specified in section 13(4)(b) or 13(5)(a) or 13(8)(a), as appropriate, and the notice shall specify the grounds of appeal and, except in a case to which section 13(5) or 13(8) applies, shall indicate whether the applicant wishes the Tribunal to hold an oral hearing for the purpose of his or her appeal.
(4) The Tribunal shall transmit a copy of the notice received by it under subsection (3) to the Commissioner and notification of the making of the appeal to the High Commissioner.
(5) The Commissioner shall furnish the Tribunal with copies of any reports, documents or representations in writing submitted to the Commissioner under section 11 and an indication in writing of the nature and source of any other information relating to the application which has come to the notice of the Commissioner in the course of an investigation by him or her.
(6) The Tribunal may, for the purposes of its functions under this Act, request the Commissioner to make such further inquiries and to furnish the Tribunal with such further information as the Tribunal considers necessary within such period as may be specified by the Tribunal.
(7) The Commissioner shall furnish the Tribunal with observations in writing concerning any matter arising on the grounds of appeal whenever so requested by the Tribunal and a copy of such observations shall be furnished to the applicant concerned and his or her solicitor (if known).
(8) The Tribunal shall furnish the applicant concerned and his or her solicitor (if known) and the High Commissioner whenever so requested by him or her with copies of any reports, observations, or representations in writing or any other document, furnished to the Tribunal by the Commissioner copies of which have not been previously furnished to the applicant or, as the case may be, the High Commissioner pursuant to section 11 (6) and an indication in writing of the nature and source of any other information relating to the appeal which has come to the notice of the Tribunal in the course of an appeal under this section.
(b) Where an appeal is deemed to be withdrawn pursuant to subsection (2A) or (2B), the Tribunal shall, as soon as may be, notify the applicant, his or her solicitor (if known), the Minister and the Commissioner of the withdrawal.
(11)(a) For the purposes of an oral hearing (if any) under this section, the Tribunal may—
(ii) direct any such person to produce any specified document or thing in his or her possession or control, or
(iii) give any other directions for the purpose of an appeal that appear to the Tribunal reasonable and just.
(c) The Tribunal shall enable the applicant and the Commissioner or an authorised officer to be present at the hearing and present their case to the Tribunal in person or through a legal representative or other person.
(d) The Tribunal shall, where necessary for the purpose of ensuring appropriate communication during the hearing, provide the applicant with the services of an interpreter.
(12) Subject to subsection (13), a witness whose evidence has been or is to be given before the Tribunal shall be entitled to the same privileges and immunities as a witness in a court.
(13) Where information has been supplied to the Commissioner, a Department of State or another branch or office of the public service by or on behalf of the government of another state in accordance with an undertaking (express or implied) that the information would be kept confidential, the information shall not, without the consent of the other state, be produced or further disclosed otherwise than in accordance with the undertaking.
(14) An oral hearing under this section shall be held in private.
(15) Notwithstanding subsection (14), the High Commissioner may be present at an oral hearing under this section for the purpose of observing the proceedings.
(16) Before deciding an appeal under this section, the Tribunal shall consider the following:
(b) the report of the Commissioner under section 13 (as amended by 26/2003)
(c) any observations made to the Tribunal by the Commissioner or the High Commissioner,
(d) the evidence adduced and any representations made at an oral hearing, if any, and
(e) any documents, representations in writing or other information furnished to the Commissioner pursuant to section 11 .
(b) A decision of the Tribunal under subsection (2) and the reasons therefor shall be communicated by the Tribunal to the Minister together with a copy of the report of the Commissioner under section 13.
(c) A decision of the Tribunal under subsection (2) shall be communicated to the High Commissioner
13. The duty of the tribunal on appeal, under subsection 16A, is either to affirm the recommendation that refugee status should be refused or the tribunal may make a positive recommendation where it is “satisfied, having considered the matters referred to in subsection (16), that the applicant is a refugee.” Hence, on appeal, there is a complete opportunity to present on behalf of the applicant in aid of this enquiry as to refugee status any new facts or arguments; to reargue the points appealed; to call new evidence for or against the status of the applicant; and to plead the case afresh and in full. The result of the appeal may be the affirmation of the Refugee Applications Commissioner in whole or in part or it may be that for a particular reason argued on appeal the applicant will be found to have established sufficient for a recommendation that the Minister grant him or her refugee status.
14. It is clear from all of this that the form of appeal explicitly set out in the Act of 1996 is not merely a review as to whether any error had been previously made: rather, it is a full and thorough enquiry into the relevant documents and observations as previously furnished to the Refugee Applications Commissioner and the hearing of oral evidence and the reception of documentary evidence and submissions in respect of every point on which an appeal has been lodged. It is also apparent that the duty of the Refugee Appeals Tribunal is to make such rulings or finding of fact as are appropriate.
15. It has been submitted before this Court, on behalf of the applicant/appellant, that on appeal to the Refugee Applications Commissioner issues might be elided or left without decision. The example given in argument was that an appeal might be decided solely on the basis that a substantial territory remained within the country from which the applicant for refugee status had supposedly fled where no persecution of persons of the alleged attributes of the applicant would take place without, on that appeal, deciding whether the applicant had a well founded fear of persecution or was not credible in the account which they are given. Under the Act of 1996, the decision of the Refugee Applications Commissioner is entirely subject to legal and factual review by the Refugee Appeals Tribunal. The purpose of the notice of appeal is to set out the points of fact or law that are important to the applicant and in respect of which he or she disputes the earlier decision. The appeal overturns the record of what has been decided; save and in so far as on appeal it is affirmed. It is only to the extent of that affirmation, if any, on appeal, that the earlier decision stands. In its nature, that appeal is to be regarded as an equivalent change in the record as where a person appeals a criminal conviction in the District Court to the Circuit Court. There, a convicted person may be acquitted on a rehearing or may have their conviction before the District Court affirmed by the Circuit Court. Of course, if a person seeking refugee status on appeal is found not to be a refugee, then the matter is disposed of. If that happens, there has been a hearing at first instance that did not accept that a recommendation be made to the Minister that an applicant should have refugee status and on appeal this will have been affirmed by the tribunal under subsection 16A. In so far as it may be thought necessary by the Refugee Appeals Tribunal, in some cases, to resolve appeals as to the essential point only, or to conclude that a particular issue decides the appeal, while leaving unresolved some other question raised in the notice of appeal, this does not result in any disadvantage to an applicant. Some relevant findings of fact or of law may not be disputed on the appeal. Such findings remain undisturbed notwithstanding the appeal as, under the legislation, there must be a particularisation as to what grounds of the decision of the Refugee Applications Commissioner are disputed. Once the notice of appeal initiates a dispute as to any finding of the Refugee Applications Commissioner, by that appeal such finding is neutralised unless it is affirmed by the Refugee Appeals Tribunal. It would be contrary to the principle of constitutional construction of the legislation, considered in its entirety, for the Minister to be required or entitled to have regard to any aspect of a finding that had been overturned on appeal. A similar consideration applies to any aspect of the original decision which is the subject of an appeal and which is not upheld by that process. Where the Refugee Appeals Tribunal does not consider it necessary to resolve the appeal on any such ground, but decides the appeal either positively in favour of the applicant or negatively against him or her on another ground, so much of the earlier decision as is appealed against is rendered merely historical. There is therefore no remaining or “hovering” disadvantage once an appeal is taken.
16. In essence, an appeal within this process is an active rehearing. That is precisely what happened here. A full opportunity was given to the applicant/appellant to argue whatever points seemed to be germane to the contention made by her mother that she had a well founded fear of persecution in relation to the invasive practice of female circumcision or that she had a well founded fear of persecution by magic practitioners. An analysis of that contention took place in the context of a fair and thorough consideration of the credibility of the evidence and other materials put forward. Given that on these issues, findings of fact were made against the applicant/appellant, and given that the decision of the Refugee Applications Commissioner was affirmed under section 16A of the Act of 1996 by the Refugee Appeals Tribunal, any consideration as to whether the learned trial judge was or was not correct in leaving the applicant/appellant to her appeal remedy under legislation, as opposed to not striking out her judicial review application in the High Court, is entirely moot.
Rights of anonymity
18. The origin of this is Article 34.1 of the Constitution which provides:
21. In Irish Times Limited and Others v. Ireland and Others  1 IR 359 the banning by a trial judge in the Circuit Court of any report of a criminal trial during its course by the media was in issue before the Supreme Court. This decision followed on the earlier discharge of a jury on what was a serious drug importation charge because of inaccurate newspaper reports that had been read by the jury. Morris J in the High Court construed Article 34.1 as involving both a positive requirement that court proceedings should be held with a full right of access by the public and that nothing should be done to discourage the publication to the public by the media of fair and accurate reports of proceedings. On appeal, since no legislative provision enabled that order, it was overturned. Absence of statutory authority was not the reason for the decision, however. At common law, in hearing criminal trials, the courts were entitled to restrict reporting in aid of a fair trial, a power subsequently encapsulated in Article 38.1 requiring criminal trials to be “in due course of law.” The rights identified since 1937 have proven to be similar to those in American due process law. All arise by operation of the Constitution through the need to apply such processes in the trial of offences that will yield a fair result. None of these rights arose through statute, though some may be expressed in legislative provisions. Article 40.6 incorporates the right of citizens to “express freely their convictions and opinions.” That Article also recognises the “organs of public opinion” as part of the “rightful liberty of expression, including criticism of Government policy”, enabling restriction only where these rights of expression are “used to undermine public order or morality or the authority of the State.” In that case, banning the media from reporting on an ongoing case was not necessary to ensure a fair trial. Judges have overall charge of court processes. Sometimes orders are necessary in criminal cases to ensure a fair result. For instance, arguments on the admissibility of evidence in the absence of the jury cannot be reported before the jury gives its verdict. The common law provided for this in criminal trials.
22. Civil trials are not so different from criminal litigation. There is a right inherent in the existence of the courts under the Constitution for the public to litigate and the right to litigate may itself require protection where otherwise it may be undermined should access by the public or even the fair and accurate reporting of court proceedings not be restricted. The Irish Times decision acknowledged that in criminal trials, reports of evidence in the absence of the jury could not appear while that jury was continuing with the case and that in necessarily pressing circumstances, the right of an accused to a fair trial, and the public entitlement that such a trial should take place, might result in such restrictions of access and temporary curtailment of reporting that ensured the integrity of the court process. In the result of that case, the blanket ban imposed by the trial judge was found not to be necessary; nonetheless restrictions were possible. The mere absence of a legislative provision does not leave the courts powerless in their duty to ensure a just result and to search for the truth. As Denham J commented at page 399:
1. There is an express legislative provision to that effect; and
2. in the event that the relevant legislative provision contains a discretion, the court is satisfied that to have the case heard in public would fall short of doing justice; or
3. in the event that there is no express legislative provision the court is satisfied that
25. It follows that Article 34.1 requires that proceedings in court be open to the public and this entails the attendance of print and broadcast media as part of the scrutiny which judicial conduct and judicial decisions are subject to in a democratic society. The media are entitled to issue, and perform a public service in circulating, fair and accurate reports of litigation. In exceptional cases, for good reasons that take account of the sensitivities of particular kinds of litigation, recognising that without privacy within court proceedings people would be inhibited to such a degree that the right to litigate would be strongly threatened, the Oireachtas is entitled to require that court proceedings be private. In terms of the protection of litigants from public scrutiny, there are degrees. Of these the strongest is, firstly, an in camera, or private, hearing where only the parties, their lawyers and their witnesses may attend together with such directly interested persons as the court permits. An in camera hearing will nonetheless result in a judicial decision and if this is in written form it should be circulated and may be published in such a form that the issues and decision may be reported but not any name or fact that will identify the parties. An in camera hearing may, secondly, be legislated for so as to allow the attendance of accredited members of the press and other media in order to enable proper reporting on behalf of the public even though the public are not to be admitted. The anonymity of the parties is preserved in any report or discussion outside the context of the proceedings. By statute, a lesser form of the protection of the privacy of proceedings, thirdly, involves the doors of the court remaining open to the public but requires that any report of what occurs during the proceedings to be anonymous as to the identities of the parties. Exceptions to the requirement of public hearings under Article 34.1 are ordinarily brought into operation through legislation; to which the courts will give effect in the degree of protection that the terms thereof require. Where, however, the courts consider that there is a legitimate and overriding public interest in the ongoing scrutiny of in camera proceedings, members of the print or broadcast media may be admitted to hearings in controlled circumstances which preserve the anonymity and privacy of litigants, where this is demonstrably possible, while upholding the integrity of their right to litigate. Such decisions are necessarily rare. They arise from the duty of the courts to uphold the special and limited nature of any exception to the requirement for public hearings. Where discretion is given in legislation to allow an in camera hearing, any decision by a court in favour of restricting public access or reporting must be limited to such cases, or such portions of cases, that involve the legitimate interests that are targeted by the legislation and where the failure to restrict the hearing would mean that the administration of justice would be undermined. Where legislation requires anonymity for particular kinds of litigants, that requirement does not need any additional scrutiny: court reports are to be redacted of names and any other fact that might reasonably lead to the identification of parties.
26. In the overall conduct of proceedings, the courts are required under the Constitution to pursue the aim of public hearings provided for in Article 34.1 and are also obliged to have regard to the other rights that may be thus affected. These include the right to litigate and the right to privacy. These rights are provided for by law under the terms of the Constitution itself. Since privacy is a broad right that encompasses situations from embarrassment to business confidence to professional secrecy, it has to be recognised that the preponderance of court cases are a source of stress and of sensitivity to litigants. Those who come to court and seek any restriction, due to their right to litigate, on the admission of the public or the untrammelled reporting of the facts and the identity of those involved will need to go considerably beyond merely arguing privacy in urging an exception under Article 34.1. It is only if the right asserted results, as a matter of proven fact, in undermining the entitlement to litigate due to a threat to life or safety or where the nature of the aspect of the case sought to be restricted means that if the court does not intervene the litigation will be practically impossible, or futile, that there should be any restriction on the open nature of access to the courts. Even there, in the absence of express legislative requirements, any restriction should be as limited as the protection of these rights necessarily demands; targeting particular pieces of testimony rather than an entire hearing, unless this is necessary, and favouring restrictions on anonymity over a completely closed hearing, unless this is essential.
(2) Subject to sections 9(15) and 26, no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person.
30. There is therefore no necessity to call in aid any matter subsequent to any investigation before the Refugee Applications Commissioner or the Refugee Appeals Tribunal, anything other than section 19 of the Act of 1996. Any judicial review touching upon that, or any injunction application concerning deportation, which concerns a person who has once applied for refugee status, must preserve the anonymity of the litigant. Where questions of deportation in consequence of overstaying a tourist or student visa may arise, and where that person has not then applied for refugee status, the protection of section 19 of the Act of 1996 does not apply. Necessarily, any argument as to the protection of rights which might result in any restriction on a full public hearing and reporting of litigation will fall to be decided under the non-statutory principles previously alluded to in this judgment.