High Court grants leave to challenge Refugee Commissioner's age assessment affecting asylum credibility. Leave granted for further review.

Neutral Citation Number: [2006] IEHC 28

THE HIGH COURT

[2005 No. 114 J.R.]

BETWEEN

AMINAT SHOLA ODUNBAKU (A MINOR SUING BY HER NEXT FRIEND) PETER O’MAHONY

APPLICANT

AND

THE REFUGEE APPLICATIONS COMMISSIONER, THE REFUGEE APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE, EQUALITY AND

LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Mr. Justice Clarke delivered 1st February, 2006.

1. Introduction

1.1 In this case the applicant (“Ms. Odunbaku”) seeks to challenge a number of decisions made prior to and in the course of her

application by asylum. This case is somewhat unusual in that issues have arisen concerning the status of Ms. Odunbaku as a possible

minor. As is clear from the title of these proceedings Ms. Odunbaku maintains that she remains, at this stage, under 18 and,

therefore, sues by a next friend. In circumstances which I will outline more fully it was determined by the Refugee Applications

Commissioner (“RAC”) on 30th January, 2004 that Ms. Odunbaku was not to be treated as a minor on the basis of a view taken by the

RAC that she was, even at that stage, already beyond 18 years of age.

1.2 While there is also a challenge to the subsequent determinations made, in the ordinary way in the course of the asylum process,

by each of the RAC, the Refugee Appeals Tribunal (“RAT”) and ultimately by the Minister for Justice, Equality and Law Reform (“the

Minister”) in the course of the consideration of the refugee status of Ms. Odunbaku, for reasons which will become clear in the course

of this judgment, the central thrust of the challenge in this case is to the original decision to treat Ms. Odunbaku as not being a

minor. The subsequent decisions are challenged not on the basis of any contended for independent failing in the process but because,

it is said, those decisions are effected in a material way by the fact that in the course of the consideration of each of the persons or

bodies concerned, Ms. Odunbaku was, wrongly it is said, treated as being of full age.

1.3 Finally it should be noted that this is a leave application. In those circumstances it is, in accordance with the established

jurisprudence, necessary for me to consider whether substantial grounds have been established. In that context I propose applying

the approach which I adopted in the analogous area of an application challenging a decision in the environmental law area as set out

in my judgment in Arklow Holidays Ltd v. An Bord Pleanála and Others (Unreported, High Court, Clarke J., 18th January, 2006). For the

reasons set out in that judgment I have come to the view that where leave is granted in an application on notice requiring that

substantial grounds be established the court should set out the reasons for the grant of leave in a manner sufficient to explain why

leave was granted but should refrain from expressing any view beyond that on the merits of the contentions put forward. As the

assessment of the relevant arguments will ultimately be a matter (in the event that leave is given) for the judge having carriage of

the substantive hearing, it would not, in my view, be appropriate at the leave stage to go further.

2. The Facts

2.1 It would appear that Ms. Odunbaku arrived in Ireland in June 2003. She has given her date of birth as 8th of September, 1988

(although this is, as I have noted, a matter of some controversy). On the basis of her stated date of birth she was 14 years of age

on her arrival in the State. On her arrival she was unaccompanied and was the subject of age assessment interviews carried out by

the RAC on respectively on 3rd July, 2003 and 4th July, 2003. While there were some minor differences between the views of those

who carried out the respective assessments on those occasions it would appear that the overall conclusion was to the effect that

the applicant was “estimated to be in the region of 16 going on 17”. In other words it appears to have been accepted that the

applicant’s date of birth was 8th September though the view would appear to have been taken by the RAC was that she must have

been born in 1986 rather than 1988.

2.2 In any event Ms. Odunbaku was thereafter placed in a hostel which, on the evidence, appears to be a reception centre for minors

under the age of 16. While in that hostel she was in the care of the East Coast Health Authority.

2.3 It would appear that in January 2004 a social worker at the hostel wrote to the RAC indicating a suspicion that Ms. Odunbaku was

in fact over 18 years of age. As a result of this communication a further interview was arranged on 30th January with an official of

the RAC. At and after this interview a re-assessment appears to have been engaged in by the same official who had, in fact, carried

out the assessment on 4th July of the previous year. The re-assessment would appear to have taken the view that Ms. Odunbaku

was over 18 years of age.

2.4 Thereafter Ms. Odunbaku made an application for asylum which was processed in the ordinary way. She sought the services of

the Refugee Legal Service (“RLS”) on 3rd February, 2004 and, it would appear, was classified as a minor by that service. On her

behalf the RLS wrote to the RAC on 24th February, 2004 requesting reasons for the re-assessment of age. The interview which was

due to be carried out in the ordinary way by the RAC was scheduled for 1st March. By faxed letter of 27th February the RLS wrote to

the RAC expressing dissatisfaction with the age assessment and requesting an adjournment of the asylum assessment interview then

scheduled for two days later. It would appear that February 27th was a Saturday and March 1st was a Monday. In those

circumstances the interview would appear to have gone ahead.

2.5 By letter dated 19th March, 2004 the RAC informed Ms. Odunbaku that her application was unsuccessful. The RLS sent letters

dated 31st March, 2004 and 1st April, 2004 to the RAC contesting the age assessment. In those letters judicial review of the age

assessment was threatened. However a technical difficulty arose in relation to the manner in which the RLS was able to deal with the

case thereafter on behalf of Ms. Odunbaku. It would appear that in order for the issuing of a legal aid certificate sufficient to allow

the RLS to bring judicial review proceedings on behalf of a minor it is necessary that the consent of a next friend be available to the

RLS. However given that the RAC had determined that Ms. Odanbaku was of full age, no next friend was appropriate in the process

before the RAC (and on appeal the RAT). In those circumstances the RLS felt it could not act and, it would appear, as an exceptional

measure, the Irish Refugee Council agreed to assist Ms. Odunbaku and submitted a notice of appeal on her behalf to the RAT dated

1st April, 2004.

2.6 By virtue of the fact that the decision of the RAC contained one of the findings specified in s. 13(6) no oral appeal was available

to Ms. Odanbaku. The RAT did, however, by letter dated 8th April, 2004 indicate that further consideration of the matter was

deferred pending internal consideration of certain of the issues raised by the Irish Refugee Council and, it would appear, in particular

issues concerning the age status of the applicant.

2.7 It would also appear that the applicant received some informal legal assistance from a lawyer attached to the RLS and, with that

assistance, made a further submission in respect of her appeal to the RAT by letter dated 12th August, 2004. In September 2004, at

a time when Ms. Odanbaku was unaware that a decision had been reached by the RAT, she attended at the Northside Community

Law Centre, which is a law centre that provides free legal advice to those who cannot afford or otherwise get same and who live in

the catchment area that is the electoral areas of Dublin North Central and Dublin North East. A solicitor attached to that centre wrote

to the RAT on 14th September seeking a deferral of the appeal decision pending further investigation. However it would appear that

the RAT had already decided to refuse the appeal and notification of that refusal was communicated by letter from the Minister of

22nd September, 2004.

2.8 Finally it should be noted that on 12th October, 2004 the same solicitor submitted an application for what is often called

humanitarian leave to remain in the State. That application was, in the ordinary way, made to the Minister. The solicitor also

attempted to gather the papers necessary to consider whether judicial review proceedings ought to be commenced. In that context a

difficulty arose concerning the appointment of a next friend. On 21st December, 2004 an application was made to the President of

this court seeking an order from the court appointing a person for the purposes of acting as a next friend. The President indicated

that it might be appropriate to approach an interested voluntary organisation for the purposes of seeking their consent to act as such

next friend. On that basis the solicitor concerned wrote to the Irish Refugee Council on 24th December, 2004 requesting that it

consider appointing a person to act as next friend. On 26th January, 2005 it was confirmed that the Chief Executive of the Irish

Refugee Council would so act and the application for leave was brought on 7th February, 2005.

3. Extension of Time

3.1 It has been necessary to set out in some detail the sequence of events leading to the bringing of the application for leave

because it is clear that in respect of all the decisions concerned the application is well outside the 14 day period specified. However it

seems to me that there are wholly exceptional circumstances in this case. It is, of course, disputed as to whether Ms. Odanbaku is

and was at any relevant time an unaccompanied minor. If it were appropriate otherwise to grant leave to challenge a determination of

the RAC that she was not an unaccompanied minor, then it would seem to me that, in logic, it would be appropriate to approach the

question of an extension of time on the basis of it being at least arguable that the applicant is and at all material times was such a

minor. For the purposes of the application to extend time her actions would need to be viewed on the basis of that possibility.

Furthermore it is clear that significant technical difficulties were encountered by those seeking to represent her interests deriving, in

part, from the procedures operated by the RLS in respect of minors and in part from the difficulties encountered by her later

representatives in assembling all necessary materials and securing an appropriate next friend.

3.2 In all those circumstances it would seem to me that it would be wrong to shut out the applicant from the ability to challenge the

decisions which she seeks to challenge solely on the basis of being out of time. In the event, therefore, that I become satisfied that

there are substantial grounds in respect of any of the challenges which she seeks to mount I would be prepared to extend time.

4. The Age Question

4.1 In Moke v. The Refugee Applications Commissioner (Unreported, High Court, Finlay Geoghegan J., 6th October, 2005) this court

had to consider the procedures required of the RAC when considering the question of whether a person was an unaccompanied minor.

4.2 At p. 13 of the judgment Finlay Geoghegan J. came to the view that the following procedures required to be followed so as to

bring such procedures into conformity with the principles of constitutional justice:-

“(i) the applicant must be told the purpose of the interview in simple terms. It may be as straightforward as informing the

applicant that the interviewers need to decide whether the applicant is or is not under the age of 18 years.

(ii) where an applicant claims to be under 18 years of age and the interviewers form a view that this claim may be false,

the applicant is entitled to be told in simple terms the reasons for or grounds upon which the interviewer consider the

claim may be false and to be given an opportunity of dealing with those reason or grounds.

(iii) where, as in this instance, the applicant produces a document which purports to be an original official document

which includes a record of his alleged date of birth and the interviewers are not prepared to rely upon such document, the

applicant is entitled to be told of their reservations and given an opportunity to deal with same.

(iv) if the decision is adverse to the applicant then he must be clearly informed of the decision and the reasons for same.

The reasons need not be long or elaborate but should make clear why the applicant’s claim to be under 18 is not

considered credible. The initial information and communication may, of necessity, be given orally but should be promptly

confirmed in writing.

(v) where the decision is adverse to the applicant and, as stated, there exists the possibility of reassessment then such

information should be communicated clearly to the applicant again initially orally and also in writing. Such communication

should include how such reassessment may be assessed by the applicant”.

4.3 It was not disputed at the hearing before me that the procedures set out in Moke represent the current law in this jurisdiction. On

that basis I am satisfied, on the facts of this case, that there are substantial grounds for arguing that the appropriate procedures

were not followed. While it is true to state that the challenged decision in relation to age assessment was itself a reassessment it

seems to me that the reassessment which Finlay Geoghegan J. spoke of at item (v) is a reassessment subsequent to a negative

assessment from the perspective of the person concerned. The January decision was the first negative assessment of Ms. Odanbaku.

She would not appear to have been informed that it was, in accordance with the standard practice which is set out in some detail in

Moke, open to her to seek a further assessment and in support thereof to present expert evidence. Furthermore there would appear

to be substantial grounds for contending on the evidence that the basis for the adverse finding (not least the assessment made by

the social worker in the hostel in which she was then resident) was not put to Ms. Odanbaku. In all those circumstances I am

satisfied that there are substantial grounds, sufficient for the purpose of leave, to permit a full hearing of a challenge to the age

assessment decision of the RAC.

4.4 However it is clear from Moke that the mere fact that there has been an invalid age assessment does not, of itself, necessarily

lead to the conclusion that subsequent decisions made in the refugee process are themselves invalid. At p. 18 of her judgment Finlay

Geoghegan J. said the following:-

“In the statutory scheme established by the Act of 1996 for making and determining applications for asylum (as distinct

from any child protection purposes) it appears, the most that can be said is that the invalid age assessment decision of

the respondent may have deprived the applicant of the potential benefit of the assistance of a guardian appointed by the

health board either to make the application on its behalf or to assist him in pursuing the application already made.

There may well be cases in which it would be in breach of an applicant’s right to fair procedures for the respondent to

proceed with a s. 11 interview and to issue a s. 13 report and recommendation without carrying out a valid determination

as to whether or not a person who claims to be an unaccompanied minor is such. This would depend upon the relevant

facts. In this application no such ground is advanced in the statement of grounds. Further, on the affidavit sworn by the

applicant after he had had the full benefit of advice from his present solicitors and counsel, including advice as to his

position as a minor, no complaint is made by the applicant in relation to his treatment by the respondent in the holding of

the s. 11 interview or the processing of his asylum application.”

4.5 It is, therefore, clear that in order that an invalid age assessment might be said to have affected any subsequent decisions made

by either the RAC or the RAT it is necessary for the court to be satisfied that the impugned age assessment decision had some

material and practical effect upon the process before those other bodies. No such contention was made in Moke. However, it is

argued, such a situation pertains here. In substance the contention of the applicant is that in a number of material respects the

consideration of both the RAC and the RAT was materially affected by the earlier decision as to age. In simple terms the contention is

to the effect that the assessment of certain aspects of the credibility of the applicant was such that a different view as to the age

of the applicant at certain material times had the potential to affect such credibility assessment. I now turn to that question.

5. The Effect of the Age Assessment

5.1 There can be little doubt that the assessment of an account given by a person (and in particular any alleged inaccuracies or

inconsistencies in such an account) can be materially affected by the age of the person concerned. This is not, of course, a matter

of technicality. While there may be formal consequences of a person being just over or just under 18 years of age it is unlikely that

any significant difference as to the assessment of the credibility of such person would flow from the fact that a person was (say) 18

years and one month on the one hand or 17 years and 11 months on the other hand. However a more significant age disparity could

well have a material effect on the assessment of an account given. On the facts of this case it would appear that the difference

between the age contended for by Ms. Odanbaku and the age as found by the RAC was of the order of a minimum of three years.

Material events, important to the assessment of the credibility of Ms. Odanbaku’s account, therefore occurred at a time when, on her

case, she may well have been barely a teenager but where, on the view taken by the RAC, she was significantly older.

5.2 It is, in my view, at least arguable that the assessment of her credibility was potentially affected in a material way by the view of

her age taken by the RAC. In those circumstances it seems to me that it is arguable that this case, unlike Moke, is a case where

there may have been a material effect on the process both before the RAC and before the RAT on appeal (not least because the

appeal before the RAT was, for the reasons indicated above, a paper appeal) sufficient to provide substantial grounds for the

proposition that both of those determinations would also fall if the original age assessment decision itself were to be set aside.

5.3 In those circumstances I am satisfied that there are sufficient grounds for granting leave to challenge the decisions of both the

RAC on the substantive refugee application and also the RAT on appeal from the decision of the RAC.