M (N) (an Infant) v Min for Justice and Others

JudgeMr. Justice Mac Eochaidh
Judgment Date14 April 2015
Neutral Citation[2015] IEHC 278
CourtHigh Court
Date14 April 2015

[2015] IEHC 278


[No. 367 J.R./2011]
M (N) (an infant) v Min for Justice & Ors





Asylum, Immigration & Nationality – The Refugee Act 1996 – Reg. 5(1) of the EC (Eligibility for Protection) Regulations 2006 – Appeal against the decision of Refugee Appeals Tribunal – Judicial review – Establishment of nationality – Fear of persecution – Whether applicant's evidence credible

Facts: The applicant, a minor, sought an order of certiorari for quashing the decision of the second named respondent that the applicant should not be declared a refugee. The applicant contended that the second named respondent had fear of being persecuted in the country of origin as her father was a member of a conflicting political party. The applicant contended that the second named respondent had contravened reg. 5(1) of the EC (Eligibility for Protection) Regulations 2006 by not taking into account the individual position and personal circumstances of the applicant. The second named respondent contended that the submission of a birth certificate by the applicant, which was registered by the mother of the applicant, was contrary to the account given by the mother that on the relevant date on which the document was registered in Zimbabwe, she was present in Ireland. The applicant contended that she was being denied from seeking redressal by way of judicial review.

Mr. Justice Mac Eochaidh refused to grant an order of certiorari to the applicant. The Court rejected the contention that the judicial review did not provide the effective remedy to the applicant. The Court held that in the judicial system of a State, the availability of judicial review of an individual asylum decision of the Refugee Applications Commissioner and the Refugee Appeals Tribunal provided for an effective remedy, thereby ensuring a check and balance on the powers of the authorities. The Court held that the decision of the second named respondent did not suffer from any infirmity or irregularity. The Court found that the impugned decision was arrived at by taking all the evidence into account and thus would not warrant interference.


1. This is a telescoped application for an order of certiorari in respect of a decision of the Refugee Appeals Tribunal dated 16 th March 2011 refusing the applicant a declaration of refugee status.


2. The applicant is a minor and has pursued her claim for asylum through her mother and next friend. The applicant was born on 12 th March 2003 and is the second youngest of five children. She claims to have arrived in Ireland on 20 thSeptember 2010 on which date she made her application for asylum at the office of the Refugee Applications Commissioner. The applicant's mother was already present in the State at that point and had previously claimed asylum on her own behalf prior to her daughter's arrival here. The applicant presented as a national of Zimbabwe and her fear stems from her claim that she was beaten by a neighbour owing to the fact that Zanu PF supporters were beating children if they were considered to be associated with the rival MDC party. It is claimed that the applicant's father was a member of the MDC and that she was targeted as a result of this connection. The applicant claims that she stopped going to school because of the difficulties she was having and further claimed that her mother could not go to the police to seek their protection as they are Zanu PF supporters and would not do anything for her.


3. In giving evidence as to how the minor applicant travelled to the State, her mother claimed that she had no knowledge that her daughter was even coming to Ireland in September 2010. She states that a man in her village, whom she had been calling to check on the welfare of her children, arranged for her daughter to leave the country. It is claimed that a local shop owner then accompanied her daughter while travelling to the State but another unknown man actually delivered the applicant to her mother in Dublin.


4. Counsel for the applicant, Paul O'Shea B.L., made three broad complaints in respect of the Tribunal decision. In the first instance, it is said that the Tribunal member erred in making a finding that the applicant's "claimed nationality is not considered to have been established". In this regard, it is said that the Refugee Applications Commissioner had dealt with the application on the basis that the minor applicant was from Zimbabwe and that the matter did not appear to be in issue on appeal. It is submitted that the question of the nationality of an applicant is a threshold enquiry and that it is impossible for the Tribunal Member to apply the definition of a refugee to the circumstances of a case without the applicant's nationality being established. Counsel cites the decision of Dhoumo v. Board of Immigration Appeals 416 F.3d 172 (2d Cir. 2005) from the U.S. Court of Appeals for the Second Circuit in support of this proposition. It is said that the decision should be quashed on the basis of the failure of the Tribunal Member to comply with this requirement alone. In this context, counsel makes the assertion that if the issue of nationality was uncertain, it was incumbent on the Tribunal Member to remit the matter for further investigation by the Commissioner pursuant to s. 16(6) of the Refugee Act 1996, particularly in circumstances where the Commissioner had not expressed any concerns in his s. 13 report.


5. The applicant refers to the provisions of Reg. 5(1) of the EC (Eligibility for Protection) Regulations 2006 which describes the relevant matters to be taken into account by the Tribunal for the purposes of making a protection decision. It is claimed that the Tribunal Member failed to apply these minimum standards to the decision making process. In the context of the applicant not having established her nationality, it is said that the Tribunal could not have complied with the requirement to take into account "(a) all relevant facts as they relate to the country of origin...including laws and regulations of the country of origin and the manner in which they are applied".


6. The second complaint raised by the applicant is that she has been denied an effective remedy owing to the making of a finding by the Tribunal Member that she has not established her nationality. It is said that the applicant has been denied an opportunity to appeal this finding as would have been open to her if it had been made at first instance by the Refugee Applications Commissioner. Counsel refers to the decision of Cooke J. in H.I.D. & Anor. v. Refugee Appeals Tribunal & Ors [2013] IEHC 146 and of Barr J. in N.M. v. Minister for Justice [2014] IEHC 638 and submits that this applicant's case can also be distinguished from the approach taken in H.I.D, as judicial review will not provide her with an effective remedy. Counsel relies on the following dicta to that effect: -


"89. The applicant maintains that the review provided for in the statutory instrument does not constitute an effective remedy before a court or tribunal. The respondent agrees in part with this contention. The respondent accepts that the review decision taken by the more senior official in the MDU does not constitute an effective remedy before a court or tribunal. However, the respondent states that the remedy of judicial review before the High Court constitutes the effective remedy for the purpose of Article 39 of the Directive.


The applicant has stated that the remedy of judicial review cannot be seen as an "effective remedy" due to the limitations on the jurisdiction of the court when considering a judicial review application. The jurisdiction of the court is limited in a number of ways. The court cannot reverse the earlier decision and substitute its own findings of fact on the substantive issues. The court can only annul the earlier decision and remit the matter back to a different decision maker for further consideration. The court cannot look at more up to date country information. It is...

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