MARA v Minister for Justice: an asylum applicant’s anonymity in litigation is protected in perpetuity

food_feature1-1_03The s 19 of the Refugee Act 1996 protection of the identity of asylum applicants is unambigious and relates “to any litigation thereto in perpetuity” (here).

Background

MARA was born in Ireland, in 2010, to a Nigerian mother. She applied (by her mother) for asylum on grounds that she would be subjected to FGM by family members in Nigeria. The Refugee Applications Commissioner refused the application on grounds that she (her mother) could chose not to return to her own family and community. MARA sought judicial review of that decision. The High Court dismissed that application as bound to fail, as an appeal was available to the Refugee Appeals Tribunal. She appealed the High Court decision to the Supreme Court, where the issue arose as to whether an asylum applicant was entitled to anominity where after an application was refused.

Supreme Court

Charleton J, with whom the other four justices concurred, dismissed the appeal as moot. An appeal to the Refugee Appeals Tribunal (RAT) is a complete rehearing of an application, an overturn of an appeal is an equivalent change in record to a Circuit Court reversal of a District Court criminal conviction [15], and that is an effective remedy. And MARA had made a RAT appeal, concurrent to the judicial review application, which was rejected.

Anonymity

S 19 of the Refugee Act 1996 (as amended) provides:

(1) The Commissioner, the Board, the Tribunal, the Minister, the Minister for Foreign Affairs and their respective officers shall take all practicable steps to ensure that the identity of applicants [for refugee status] is kept confidential.
(2) Subject to sections 9(15) and 26, no matter likely to lead members of the public to identify a person as an applicant under this Act shall be published in a written publication available to the public or be broadcast without the consent of that person.

The Court considered whether the protection provided by this section remained in effect after an application for asylum was refused: is an applicant for judicial review of a RAT decision, who has been refused asylum, entitled to anonymity?

The Court reasoned that, on a literal construction, once a person has made an application claiming to be a refugee, they are thereafter a person who has made an application; the Oireachtas must have had good reason to protect the anonymity of such persons–regardless of the validity or absurdity of their claims; an applicant is always a person to whom the restriction of publication of their identity applies; and, they retain their anonymity as an applicant in all litigation in perpetuity [29].

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  1. 2014 Review: December | scoirl

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