Decision-makers must be explicit in rejecting rights-based arguments, writes CAROL COULTER, Legal Affairs Editor
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.
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.”
An application to judicially review a case is not an appeal of a decision; it is a challenge to the manner in which the decision was arrived at. In this case lawyers for the applicant argued that where fundamental human rights were at stake, as they were here, the administrative decision should be subjected to particularly close scrutiny to ensure that these rights were not infringed. There was no evidence in the minister’s decision that this had been done, they claimed.
Chief Justice John L Murray agreed, as did Mr Justice Niall Fennelly and Mrs Justice Susan Denham. Mr Justice Murray said that if material supporting a claim of infringement of rights had been submitted, “the minister must specifically address that issue”. The fact that other officials had already examined the application did not absolve him from that duty.
Mr Justice Fennelly also pointed out that no reference was made to any consideration of the submitted material, and the decision was defective as a result. The decision undoubtedly places an obligation on the minister for justice, and other decision-makers, to weigh up arguments that fundamental rights are at stake, and give reasons for rejecting them. If they do so, they may avoid the deluge of judicial reviews feared by the minority judgments.