JMN v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 27 February 2017
• Neutral Citation: [2017] IEHC 115
• Docket Number: [2016 No. 887 J.R.]
• Court: High Court
• Date: 27 February 2017

BETWEEN

J.M.N. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND N.M.)

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

[2017] IEHC 115

[2016 No. 887 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – Refusal of asylum claim – Leave to seek judicial review – Children of asylum seekers

Facts: The mother of the applicant/minor sought leave to seek judicial review of the first respondent's decision to reject the applicant's claim for asylum. The applicant's mother contended that the first respondent had failed to consider persecution that the applicant would meet in the country of origin, upon his return as the child of asylum seekers. The applicant's mother argued that the children born in Europe without the country of origin birth certificate faced persecution in the form of denial of basic education services and thus, the applicant would be meted out the same fate.

Mr. Justice Richard Humphreys refused to grant leave to the applicant. The Court held that the denial of basic education services would not amount to severe persecution except under extreme circumstances. The Court found that since the applicant had failed to raise the specific issue of lack of birth certificate in the appeal before the first respondent, that issue could not be raised for the first time in the judicial review. The Court found that the core claim of the applicant before the first respondent was different from what was being alleged in the present leave application and thus, there was no substance in the present application.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 27th day of February, 2017

1 The applicant for leave to seek judicial review is a five year old child of Zimbabwean origin born in Tralee in December, 2011. The next friend was born in Zimbabwe in 1979. She came to Ireland in July, 2009, and applied for asylum; a claim that was rejected by the Refugee Appeals Tribunal on 19th February, 2011.

2 The mother made an application for asylum on behalf of her child on 1st July, 2014. That claim was also duly rejected by the Refugee Applications Commissioner on 8th October, 2014.

3 A notice of appeal was filed against that rejection by solicitors on behalf of the applicant, and written submissions of counsel were prepared for the tribunal.

4 On 3rd November, 2016, the tribunal issued a decision, dated 1st November, 2016, rejecting the appeal.

5 Mr. Colm O'Dwyer S.C. (with Mr. Ciaran Doherty B.L.) now seeks leave to challenge that tribunal decision.

6 The substantial grounds test applies and I have had regard to the law in that regard as set out in McNamara v. An Bord Pleanála (No. 1) [1995] 2 I.L.R.M. 125.

Alleged failure to consider persecution on grounds of being born outside Zimbabwe as the child of asylum seekers

7 The statement of grounds sets out three grounds for the challenge. The first ground is that ‘ the Tribunal failed to engage in any reasonable and rational analysis of whether the applicant might face prosecution in the form of serious discrimination in Zimbabwe on account of his have (sic) been born and grown up outside the country, in Europe, as the child of asylum seekers and without a Zimbabwean birth certificate.’

8 The tortuous logic of this claim begins with the obvious point that as a person born in Ireland, the applicant does not have a Zimbabwean birth certificate. According to the U.S. State Department country report published in 2016, some persons in Zimbabwe who do not have birth certificates have difficulty accessing public services. Thus it is now submitted that the applicant is at risk of discrimination on this basis in relation to accessing educational services. It is further claimed that the discrimination is so severe as to amount to persecution within the meaning of the Geneva Convention on the Status of Refugees. As can be seen immediately, the punchline (‘refugee’) derives from a tottering pile of conditional arguments based on minimal evidence and ultimately resting on a remarkably slender premise (‘born outside Zimbabwe’).

9 Hogan J. in E.D. v. Refugee Appeals Tribunal [2011] 3 I.R. 736, a decision heavily relied on by the applicant, was of the view that the denial of basic education in that case amounted to persecution within the meaning of the Refugee Act, 1996. The Supreme Court has recently overturned that decision: E.D. v. Refugee Appeals Tribunal [2016] IESC 77 (Unreported, Supreme Court, 21st December, 2016), a decision in which Charleton J. (Denham C.J., O'Donnell and Laffoy JJ. concurring) said that a connection between denial of education and persecution could only be reached ‘ only in extreme circumstances’ (para. 2), and in which Clarke J. (Denham C.J., O'Donnell and Laffoy JJ. concurring) noted that a context where ‘the denial of rights was so fundamental as to meet the threshold’ would arise where for example ‘ the laws of a particular country might directly prevent persons of a particular ethnicity from obtaining education’ (para. 6.12).

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