AAA & anor -v- The Minister for Justice & ors,  IESC 78 (2017)
|Party Name:||AAA & anor, The Minister for Justice & ors|
An Chúirt Uachtarach
The Supreme Court
Hogan JSupreme Court appeal number: 2012 no 248
 IESC 000
High Court record number: 2011 no 1007JR
AAA and JAA (an infant suing by his mother and next friend AAA) and EAA (an infant suing by her mother and next friend AAA) and SAA (an infant suing by his mother and next friend AAA) (Nigeria)
- and -
The Minister for Justice, Ireland and the Attorney General
Judgment of Mr Justice Peter Charleton of Thursday the 21
of December 2017
This appeal on a failed refugee status claim and unsuccessful subsidiary protection application arises most immediately from the judgment of Cooke J in the High Court of 17 May 2012. The consequent notice of appeal is dated 5 June 2012. The original notice of motion seeking leave to apply for judicial review was dated 14 November 2011 and sought 15 reliefs on behalf of the applicants.
In essence, on the hearing of this appeal, the argument centred on the refusal of the trial judge to grant leave to the applicants to commence a judicial review proceeding on three grounds: that, firstly, where an applicant is refused subsidiary protection by the respondent Minister, there must be an effective judicial scrutiny of that decision by way of a full appeal on the law and on the merits; that, secondly, there has been an absence of a practical examination of the claim due to the applicant not having received an oral interview prior to the decision; and, thirdly, that the decision of the trial judge ought to have awaited and should have been bound by the interpretation of the relevant legislation by the Court of Justice of the European Union. Cooke J granted the applicants leave to apply for judicial review on the following sole ground, as set out in the order of the Court dated 17 May 2012:
The deportation orders are invalid by reason of the first named Respondent not having personally considered whether the State’s non-refoulement obligations would be breached by the deportation of the Applicants
In a judgment delivered on 10 September 2013, McDermott J refused the application for judicial review.
Application for leave
The test for leave to commence judicial review was set out in G v Director of Public Prosecutions  1 IR 374 by Finlay CJ at pages 377-378:
An applicant must satisfy the court in prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-
(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20(4).
(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.
(c) That on these facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.
(d) That the application has been made promptly and … within the … [relevant] time limits…
(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be in order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, in all the facts of the case, a more appropriate method of procedure.
In discussing the above test, in Esmé v Minister for Justice  IESC 26, Charleton J stated the following at paragraph 15:
Any issue in law can be argued: but that is not the test. A point of law is only arguable within the meaning of the relevant decisions if it could, by the standards of a rational preliminary analysis, ultimately have a prospect of success. It is required for an applicant for leave to commence judicial review proceedings to demonstrate that an argument can be made which indicates that the argument is not empty. There would be no filtering process were mere arguability to be the test without, at the same time, taking into account that trivial or unstatable cases are to be excluded: the standard of the legal point must be such that, in the absence of argument to the contrary, the thrust of the argument indicates that reasonable prospects of success have been demonstrated. It is still required to be shown that a prima facie legal argument has been established.
It was further noted at paragraph 12 that “application for judicial review of decisions made by the Refugee Applications Commissioner, the Refugee Appeals Tribunal and the respondent Minister are generally subject to a more stringent test than normal before leave to commence judicial review may be granted.” In this case, however, the G test is applied.
The applicants are a mother and three children, constituting what is claimed to be a single-parent family, due to what were alleged to be violent circumstances which caused the father to disappear, and it was alleged another child, but which were found to be incredible when examined by the Refugee Applications Commissioner and the Refugee Appeals Tribunal. The applicants came to Ireland on or around 17 July 2007 when the mother was pregnant. The Refugee Appeals Tribunal, having heard oral evidence and considered documentation, which did not include any personal papers of any of the applicants, rejected their claim to qualify for refugee status on 30 August 2010. On the applicants being written to by the respondent Minister, informing them of their entitlement to apply for leave to remain on humanitarian grounds and to apply for subsidiary protection, they so applied. These applications were rejected by the respondent Minister on 5 June 2011 and consequently, deportation orders were signed by the respondent Minister on 27 September 2011 and notified by letter to the applicants on 4 October 2011. On 14 December 2011, all of the applicants were repatriated to Nigeria and have been living there for the last six years. Their current circumstances are unknown. Even still, they instructed their solicitors to pursue this appeal and have “remained in touch”, according to submissions on the appeal. Even if, as counsel for the respondents suggested, there were any up-to-date information as to their circumstances, this might be of little value as the possibilities of verification or checking such information would be minimal.
The first applicant claims that she lived in an oil-rich area of Nigeria and that her family had had no difficulty up to 10 March 2007. The address which she gave was spelt variously and inconsistently as between her written applications and later oral hearings. Her account was of rape, the abduction of her husband and eldest son, beatings, threats and extortion inflicted on her family by a group of unknown men in consequence of her family giving shelter to four unknown expatriates from Europe and Canada who worked in the oil industry. Upon this experience, she sought help from tribal elders, from the police and from the “Celestial Church of God”, a Christian group, but to no avail. Assistance was available, however, from the Catholic Church and after obtaining sanctuary there for what she stated was almost a month, she travelled with her family by air to Ireland, stopping once. The stopping place was described as unknown in her written documentation but was later claimed to be France.
At her address in Nigeria, the first applicant claimed to live in an apartment. This accommodation, however, was supposed to have had a basement. Four men came rushing into the apartment on 10 March 2007 and asked for help because they were being “pursued by Niger-Delta militants.” The trouble was, apparently, money, specifically a demand for £20,000. They begged her husband to “save them from being taken away by the militant boys”. They agreed to help them “by letting them into our apartment and hide them where nobody could see them.” This apparently was in a hole in the kitchen which was covered up so that the militants, when they came, “checked the whole apartment but could not find anybody”. It was claimed that they beat up her husband. It was also claimed that the militants then left but returned a day or so later when the expatriates continued to hide in the basement or hole. Even though, apparently, the family had nothing to do with this issue as to debt, or whatever it was, the militants continued to demand money from them and savagely beat her husband “to the extent they removed one of his tooth, slapped me and also threw the children in the chair”. A “one week ultimatum to make the money available to them” was given or else “they would deal with us ruthlessly”. About two weeks later, the militants called again and beat up her husband and it is said abducted him and her eldest son. The militants continued to return, it was claimed, and on one of the occasions even though the men were not in the basement or hole, they had been seen by the militants escaping out of the backyard and so considered that they had been sheltered by this family. On one occasion, the applicant claims to have been raped and described this as being perpetrated by one man...
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