OS & FOS v Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Minister for Justice, Equality and Law Reform
Court/s:High Court
Nature of Proceedings:Judicial Review
Judgment Date/s:20 Apr 2011
Judge:Hogan J.
Category:Refugee Law
Keywords:Refugee, Refugee Law
Country of Origin:Nigeria
Geographic Focus:Ireland

The Applicants were mother and daughter. They were Nigerian nationals who had claimed refugee status in Ireland. The mother claimed that her daughter was at risk of female genital mutilation in Nigeria. The Refugee Applications Commissioner recommended that they not be declared refugees, and this recommendation was affirmed by the Refugee Appeals Tribunal on the grounds that adequate State protection against FGM was available in Nigeria. When they received the Tribunal decision, the Applicants wrote to the Minister and submitted that the Tribunal decision was wrong and that no such protection was available. They asked the Minister to exercise his discretion pursuant to section 17(1)(b) of the Refugee Act 1996 to grant them declarations of refugee status notwithstanding the negative recommendation of the Commissioner and the Tribunal. The Minister refused to consider these submissions and refused them declarations of refugee status. The Applicants sought leave to seek judicial review of the Minister’s decision on the grounds that he had failed to exercise his discretion in accordance with law. It was agreed that the case would be telescoped, that the application for leave for judicial review and the substantive judicial review application should be heard together.

In determining the application, the High Court (Hogan J.) held that the Ministerial discretion under section 17(1)(b) of the 1996 Act was not a freestanding discretion like that conferred on the minister by section 18(4) of the Act. Rather, the asylum system comprising the Commissioner, the Tribunal and the Minister had to be understood as a single, seemless administrative procedure. There was, accordingly, no duty on the Minister to consider the submissions furnished by the Applicants, and for this reason, the reliefs sought by the Applicants were refused.


The asylum system is a single, seemless administrative procedure and there is no duty on the Minister to consider submissions furnished by Applicants seeking the exercise in their favour of his discretion to grant refugee status notwithstanding negative recommendations by the ORAC and the RAT

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