The Applicant, a Nigerian citizen, sought asylum in Ireland on the grounds that she would be subjected to female genital mutilation (FGM) in Nigeria. The Refugee Applications Commissioner recommended that she not be declared a refugee, and this recommendation was confirmed by the Refugee Appeals Tribunal on appeal. The Applicant the sought leave to remain on humanitarian grounds from the Minister, arguing that FGM amounted to torture or inhuman and degrading treatment and that returning her to Nigeria would violate the State’s obligations under Article 3 of the ECHR and Article 1 of the UN Convention against Torture. These obligations are incorporated into Irish law by section 3 of the ECHR Act 2003 and section 5 of the Refugee Act, 1996. The Applicant furnished the Minister with comprehensive submissions on the incidence of FGM in Nigeria. The Minister rejected her application, stating that the provisions of section 5 of the Act of 1996 had been complied with. The Minister did not address the material submitted by the Applicant or respond to her claim that she was personally at risk. Leave to apply for judicial review was refused by the High Court which, applying the standard of review for reasonableness in O’Keeffe v An Bord Pleanala [that an administrative decision may only be set aside for unreasonableness if it is fundamentally at variance with reason and common sense] concluded that the Minister’s decision was not unreasonable. The High Court granted leave to appeal against this decision, and the appeal was heard by the Supreme Court.
By a majority of three to two, the Supreme Court held that in assessing the reasonableness of administrative decisions in cases affecting fundamental rights, the courts are entitled to consider the proportionality of the decision. In his majority judgment, Fennelly J. held that the Supreme Court was not altering the existing test laid down in O’Keeffe. Denham J., also for the majority, found that the O’Keeffe test had been construed too narrowly and that judicial review had to be an effective remedy. She said that where fundamental rights are factors in a review, they are relevant in analysing the reasonableness of the decision. She further noted that an assessment of proportionality was inherent in any analysis of reasonableness. The Chief Justice found that the Minister’s decision was unacceptably vague and opaque. The majority concluded that there were substantial grounds to believe that Minister’s failure to give reasons for his decision rendered it unreasonable. Leave to seek judicial review was granted, and the Supreme Court remitted the matter to the High Court. Hardiman and Kearns JJ. dissented.
