New Obligations on Minister after Ruling on Asylum Seeker Case
22 Jan 2010
Carol Coulter The Irish Times Friday January 22 2010
Decision-makers must be explicit in rejecting rights-based arguments, writes CAROL COULTER , Legal Affairs Editor
The decision at issue was that of the minister for justice to make a deportation order after the applicant had failed to obtain refugee status. She had then sought to remain in the State on humanitarian grounds, claiming she would be subjected to female genital mutilation (FGM) if sent back.
Section 5 of the 1996 Refugee Act prohibits "refoulement" (sending back) if the life or freedom of the person would be threatened for specific reasons, or if the person would be subject to a serious assault. In his decision, Mr McDowell simply stated: "The Minister has satisfied himself that the provisions of S 5 . . . are complied with in your case."
The two Supreme Court judges who opposed granting a judicial review of the decision of then minister for justice Michael McDowell to deport a failed asylum seeker considered that granting her application would bring about a major shift in balance between the courts and the Executive, and lead to more judicial reviews of asylum decisions being sought.
The three judges who granted her application were critical of the failure of the then minister to give any reason for his decision to make the deportation order, though she had invoked a fear of being subjected to serious assault if she was sent back to Nigeria.
Their judgment places an obligation on the minister to state reasons for deportation decisions when fundamental rights are invoked by the applicant.