A (D)(an Infant) v Minister for Justice and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 04 March 2015
• Neutral Citation: [2015] IEHC 208
• Judgment citation (vLex): [2015] 3 JIC 0403
• Court: High Court
• Date: 04 March 2015

[2015] IEHC 208

THE HIGH COURT

[No.683 J.R./2010]

A (D)(An Infant) v Minister for Justice & Ors

JUDICIAL REVIEW

BETWEEN

D.A. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND N.A.) (PAKISTAN)

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE REFUGEE APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Asylum – Immigration – Refugee status – Deportation – Certiorari.

Facts: Following refusal of the application for the refugee status, the applicant now sought an order of certiorari for quashing the decision of the second named respondent. The applicant further sought an injunction restraining the first named respondent from deporting the applicant or her parents back to the country of origin. The applicant contended that being an infant the applicant relied on parents for support and therefore, the second named respondent failed to look in to the principle of natural or constitutional justice. The applicant further feared that there was a reasonable likelihood of persecution for a Convention reason. The respondent had earlier denied refugee status stating that a credible real risk of persecution was missing.

Mr. Justice Eager held that the request for an order of certiorari for quashing the decision of the second named respondent would be granted. Following I.R. v. The Minister for Justice Equality and Law Reform & Ors [2009] IEHC 353, the Court held that the decision of the second named respondent would be vitiated by the principle of natural or constitutional justice as it relied solely on the applicant being an unexceptional Ahmadi. The Court directed the applicant's appeal to be determined by another member of the second named respondent.

1 1. This is a telescoped application for an order of certiorari quashing the decision of the second named Respondent dated the 29 ^th April 2010 and seeking an order and an injunction restraining the first named Respondent from deporting the Applicant or her parents upon whom she relies for support.

The Applicant's claim

2 2. DA. was born on the 25 ^th November 2008 in Ireland. She is of Pakistani nationality, both of her parents being from Pakistan. She was born into the Ahmadi faith. Both of the parents of the Applicant had made applications for refugee status and their appeals to the Refugee Appeals Tribunal have been unsuccessful.

3 3. The Applicant's mother explained on behalf of the Applicant that she feared for her child. She claims that the whole family would have the same problems if they returned to Pakistan. She claims that they had to leave Pakistan because her husband was an Ahmadi preacher and they would have problems if they returned. The second named Respondent indicated that the joint appeal of the Applicant's parents had not discharged the burden of proof upon them of showing that there was a reasonable likelihood that they would be persecuted for a Convention reason if returned and that the decision of the second named Respondent was attached to the supplemental affidavit of Brian Byrne, solicitor sworn on the 16 ^th February 2015. Two letters were submitted to the Tribunal to the effect that the Applicant's father is an Ahmadi and working as a preacher and that he used to bring non-Ahmadis for preaching and a second letter which makes reference to a satellite dish centre.

4 4. In summary the Applicant's mother's evidence is that the Applicant would suffer the same fate as her father if she did the same work as her father. The Applicant's mother was asked whether her two other children were also preachers and she claimed that they were not but perhaps they would become preachers but that the Applicant will definitely become a preacher. The Applicant's mother was asked to explain how she could be so sure and she claimed that she promised God that she would work as a preacher before her birth. She claims that she belongs to a particular group in other words that this child has been enrolled in a particular group named as Tehrik-Waqf-e-Nou which means she woud have to work as a preacher. The mother claims that if the Applicant goes back to Pakistan to start working as a preacher she will suffer problems. She was asked when this would happen and she claims at the age of 4 she would go to the preacher training school and then start preaching at the age of 15. The Applicant was asked whether it would unusual for young girls to preach and the Applicant's mother stated everyone has to preach but because she belongs to this particular group the Applicant would be a special preacher and there would be no guarantee that she would be safe if she went back. A substantial amount of Country of Origin Information indicates both the killing of Ahmadis and the discrimination against Ahmadis. The Applicant's mother stated there was no safety in their country and that the Applicant would be put in jail or she would be killed if she returned and started preaching.

5 5. The Applicant's mother stated there was no part of Pakistan that would be safe because if you were targeted once if you were a preacher you would not be safe if you moved anywhere else.

Decision of the second named Respondent

6 6. The second named Respondent indicated that the difficulty inherent in applications for children is that there is no history upon which to rely on other than that of the parents. It was important that a re-examination of a case already dealt with should not be entered into by the Tribunal. An application by a child born to parents who have already been through the refugee determining process and failed is not "a second bite of the cherry". She said that at this particular point in time there was no supporting documentation other than a letter from an Ahmadi group stating that the Applicant's father was an Ahmadi, a letter from an Irish Ahmadi Association (Ahmadiyya Association) and the father's national identity card. She stated that in relation to the evidence that the Applicant is a member of a particular group namely Tehrik-Waqf-e-Nou she stated that she is bearing in mind that people were talking about a child who was not even 2 years of age. She also says that she is presented with the Applicant who is a child of parents who failed to meet the criteria of the Refugee Convention for reasons set out in their decision.

7 7. She said that the parents had not persuaded her that they were "exceptional Ahmadis" and by association she could not find that this child regardless of whatever argument may be made as to what she might do in the future is anything other than an unexceptional Ahmadi. She referred to decisions referred to in the section 13 report and indicated that there was no real risk of persecution or Article 3 infringing treatment on return to Pakistan for an unexceptional Ahmadi merely by reasons of being an Ahmadi. On that basis she said that she found that the Applicant did not face a real risk of persecution for a Convention reason.

8 8. In that regard the second named Respondent quoted a decision of UKIAT ( 2005 UKIAT 00033KK). This was referred to by the Refugee Application Commissioner's report under section 13:-

"Where the IAT found that for the unexceptional Ahmadi there is no real risk of persecutory or Article 3 infringing treatment on return to Pakistan merely by reason of being an Ahmadi. The unexceptional Ahmadi was defined as a man of the Ahmadi faith who:"

1) Has no record of active preaching, is not a person in respect of whom any finding...