A.L.M. v Minister for Justice and Equality and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice McDermott |
| Judgment Date | 08 February 2013 |
| Neutral Citation | [2013] IEHC 203 |
| Court | High Court |
| Date | 08 February 2013 |
[2013] IEHC 203
THE HIGH COURT
BETWEEN
AND
REFUGEE ACT 1996 S2
EUROPEAN COMMUNITIES ELIGIBILITY FOR PROTECTION REGS 2006 REG 5(3)
REFUGEE ACT 1996 S13
IMMIGRATION ACT 1999 S3
REFUGEE ACT 1996 S11
P(S) v MIN FOR JUSTICE & ORS UNREP COOKE 20.1.2012 2012/38/11254 2012 IEHC 18
AKRAM v MIN FOR JUSTICE 2004 1 IR 452
A (A) v MEDICAL COUNCIL 2003 4 IR 302
WALDRON v EARLY UNREP SMYTH 15.6.2004 2004/49/11305 2004 IEHC 227
DELANY & MCGRATH CIVIL PROCEDURE IN SUPERIOR COURTS 3ED PARA 32.98-32.99
SPENCER BOWER & HANDLY RES JUDICATA 4ED 2009 PARA 1607-16.10
D v C 1984 ILRM 173 1983/8/2366
C v HACKNEY LBC (1996) 1 AER 973
MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY 1999 CHAP 9
ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5
SMITH v MIN FOR JUSTICE & ORS CLARKE 1.2.2013 2013 IESC 4 PARA 601-6.6
A (BJS) v MIN FOR JUSTICE & ORS UNREP COOKE 12.10.2011 2011/1/84 2011 IEHC 381
IMMIGRATION LAW
Subsidiary protection
Application on behalf of minor for leave to seek judicial review - Application to dismiss proceedings as abuse of process or as bound to fail - Decision on subsidiary protection - Refusal of application of mother for judicial review on grounds of lack of candour - Application for order dismissing application on behalf of minor - Claim that applicant precluded from maintaining proceedings as moved on same grounds as those determined in application by mother - Application for asylum by father - Issue estoppel - Abuse of process - Whether issue estoppel arose against infant applicant - Absence of privity between child and parent - Potential for wider issues to arise in application of child - Standard of review - Discretion of court - Akram v Minister for Justice [2004] IEHC 33, [2004] 1 IR 461; AA v Medical Council [2003] 4 IR 302; Waldron v Early [2004] IEHC 227, (Unrep, Smyth J, 15/6/2004); D v C [1984] ILRM 173; C v Hackney LBC [1996] 1 All ER 973; Smith v Minister for Justice and Equality [2013] IESC 4, (Unrep, SC, 1/2/2013); A(BJS) v Minister for Justice and Equality [2011] IEHC 381, (Unrep, Cooke J, 12/10/2011); Mbeng v Minister for Justice and Equality [2012] IEHC 225, (Unrep, Cooke J, 7/6/2012) considered - Illegal Immigrants (Trafficking) Act 2000 (No 29), s 5 - Application refused (2012/322JR - McDermott J - 8/2/2013) [2013] IEHC 203
M(AL) v Minister for Justice and Equality
Facts: The applicant was a minor who was born in Ireland on the 27 th March 2010. An application for asylum was made on her behalf by her mother and next friend, S.P. on the basis that her father claimed he was Tutsi Rwandan and if deported to Rwanda, she would be considered as part of that social group also and in danger of persecution from the Hutu people. The applicant”s parents and half brother had all applied for asylum on the basis of perceived persecution previously if returned to their native countries which were all rejected at first instance and on appeal. The applicant”s application was refused and an application for subsidiary protection was subsequently made. This was also refused.
The applicant sought leave to apply for judicial review to challenge the decision to refuse subsidiary protection on a number of grounds. Firstly, it was claimed that the respondent had failed to discharge the duty to make a preliminary finding as to the applicant”s nationality given the fact the respondent”s had doubts as to her parents nationality. Secondly, it was argued that the respondent had a duty to cooperate with the applicant to assess the relevant elements of the claim. Thirdly, it was argued that there was no effective appeal mechanism from the subsidiary protection decision as the Minister would have also been involved in the decision regarding refugee status and therefore could not be considered impartial.
The respondent brought an application seeking an order to dismiss the proceedings on the basis that it was an abuse of process as well as frivolous and vexatious with no hope of success. In support of the application, the respondent argued that the proceedings were based on the same facts that had been advanced in support of the applicant”s mother”s application, and to a lesser extent the application of her father, which had been dismissed for a lack of candour and an abuse of process.
Held by McDermott J that it was not possible to determine at that stage whether the case of the applicant coincided precisely with that of her mother and father, especially in light of the fact that her father was in the process of pursuing judicial review proceedings on the basis of the findings of his application for asylum. It was likely that the issues that would arise in the applicant”s proceedings would be largely similar to the asylum application of her mother, but this was not sufficient to prevent her from pursuing it and could not be regarded as an abuse of power.
Application refused.
1. This is an application on behalf of the respondents for:-
"an order dismissing the within proceedings as an abuse of process and/or on the basis that they are frivolous and/or vexatious and/or doomed to fail."
pursuant to a notice of motion dated 26 th July, 2012.
2. The applicant was born on 27 th March, 2010, in Ireland. She is the daughter of her next friend, S.P., and her father is T.M.. She also has a half-brother, B.A.S.. Application was made on behalf of the applicant by her mother who then claimed to be a national of Sierra Leone for asylum under s. 2 of the Refugee Act 1996. At the time, her father claimed to be a Rwandan national. Her claim was assessed on the basis of the respective claims as to nationality by her mother and father. The applicant has never been to Sierra Leone or Rwanda and has not suffered past persecution. The applicant's parents presented her case at the interview carried out in respect of the application for asylum. Further separate applications were made on behalf of each of the parents for asylum. Her mother claimed asylum in Ireland on 10 th August, 2006, and her father on 30 th April, 2007. Her half-brother claimed asylum on 4 th September, 2007. The applicant's parents and half-brother were found not to have a well-founded fear of persecution in relation to their own claims and these decisions were upheld on appeal.
3. The applicant's father claimed that his daughter was at risk if returned to Rwanda because he was a Tutsi and she would be regarded as one also. He claimed that his parents had been killed and feared for the safety of his daughter. He feared that the Hutu people would harm his daughter.
4. The applicant seeks leave to apply for judicial review in this case to quash the decision of the respondent refusing to grant the applicant subsidiary protection dated 10 th January, 2012. The application was initially made ex parte but by order of Cooke J. on 25 th April, 2012, it was directed that it should proceed by way of notice of motion. It is grounded on the affidavit of the applicant's next friend and mother. That affidavit sets out a chronology of the course of events in respect of the minor's application for refugee status. It exhibits the ASYI form and a copy of the applicant's questionnaire and the s. 11 interview conducted in respect of the application dated 8 th June, 2010. It also exhibits a copy of the decision of the Refugee Appeals Tribunal in respect of the claim dated 20 th September, 2010, together with the notice of appeal grounding that application. It then exhibits a copy of the child's father's s. 13 report compiled by the Refugee Appeals Commissioner dated 15 th September, 2007. It refers to copies of correspondence from the Minister to the applicant dated 7 th February, 2012, and a letter from the applicant's solicitors to the respondent dated 20 th March, 2012. It also refers to the proceedings involving the next friend bearing Record No. 2011/768 JR, and the judgment of Cooke J. delivered in those proceedings.
5. The grounds upon which reliefs are sought are set out at paras. El, 2 and 3 of the statement required to ground the application for judicial review.
6. The first ground may be summarised as a complaint that the respondent had a duty to reach a preliminary finding on the question of the minor applicant's nationality "in circumstances where there is clearly a significant doubt in the mind of the first respondent as to the nationality/citizenship of the applicant's parents".
7. Though acknowledging that the respondent "seems to be of the view that both parents are or might be of Nigerian nationality…", it was contended that that question should first be adjudicated upon and "a decision reached as to what country or countries each of them is to be removed to and only then carry out an assessment of the application", It was contended that a failure to proceed on that basis was in conflict with the best interests of the applicant. A further complaint was made that any perceived failings or misrepresentations of the parents in respect of their nationality should not have been visited upon the applicant.
8. Within Ground E1 it was also contended that in the circumstances of this case the respondent was not entitled to "rely on the conclusions of the RAT but was obliged to reach a decision independent of the conclusions of that body".
9. Ground E2 contends that there was a failure on the part of the respondent to cooperate with the applicant in assessing the relevant elements of the claim in breach of the minimum standards mandated by the terms of the Qualification Directive, thus rendering the refusal to grant subsidiary protection ultra vires and unlawful.
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