M.N. v Refugee Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 21 December 2015
• Neutral Citation: [2015] IEHC 831
• Docket Number: [2011 No. 1210 J.R.]
• Court: High Court
• Date: 21 December 2015

IN THE MATTER OF THE REFUGEE ACT 1996 AS AMENDED

IN THE MATTER OF THE IMMIGRATION ACT 1999

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

AND IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 20032003 SECTION 3 (1)

BETWEEN

M. N.

(A MINOR SUING BY HER FATHER AND NEXT FRIEND R. N.)

APPLICANT

AND

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

RESPONDENTS

[2015] IEHC 831

[2011 No. 1210 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Asylum, Immigration & Nationality – The Refugee Act 1996 – The Immigration Act 1999 – The Illegal Immigrants (Trafficking) Act 2000 – The European Convention on Human Rights Act 2003 – Reg. 5(1) of the European Communities (Eligibility for Protection) Regulations 2006 – Art. 8 (2) (a) of the Procedure Directive 2005/85/EC – Assessment of claim of minor independently of parents – Severance of findings

Facts: The minor applicant through her father had challenged the decision of the first named respondent affirming the recommendation of the Refugee Applications Commissioner (RAC) that the applicant should not be declared a refugee. The applicant mainly contended that the first named respondent had failed to individually assess the claim of the applicant and made new credibility findings without referring the matter back to the RAC. The applicant also alleged that the first named respondent had inappropriately assessed the findings concerning internal relocation and country of origin information.

Mr. Justice Richard Humphreys granted leave to the applicant on the limited ground that the internal relocation finding made by the first named respondent was inappropriate while refusing the substantive relief. The Court observed that the first named respondent could take into account the failed asylum applications of the parents/guardians of the minor and had the power and discretion to make new credibility findings under s. 16 (6) of the Refugee Act 1996 without referring the case back to the RAC. The Court found that since there were negative credibility findings against the applicant, the first named respondent was not bound to assess the country of origin information. The Court, however, observed that a decision maker must identify a proper place of relocation for the applicant taking into account the general circumstances prevalent in the country coupled with the personal circumstances of the applicant before embarking upon making a finding concerning internal relocation.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 21st day of December, 2015

1 The applicant is a five year old girl who, while born in Ireland, is of Pakistani nationality. Her parents married in Pakistan in breach of their families' wishes, and accordingly fear retribution of some sort being visited upon them by the wife's family should they return.

2 As far back as 25th June, 2007, the father applied for a UK visa and was refused, according to documentation supplied by the UK Border Agency. That agency said nothing to the tribunal about any appeal in relation to such refusal. At the hearing before me, Mr. Garry O'Halloran, B.L., who appeared (with Mr. Mark de Blacam, S.C.) for the applicant, informed me that the father's instructions were that he appealed this visa refusal, that the visa was granted on appeal in 2008, that he used the UK visa for fifteen days and that he then returned to Pakistan.

3 On 16th August, 2010, the applicant's parents and brother were granted multi-entry visitor's visas to the UK. At the hearing, Mr. O'Halloran informed me that the applicant's father's instructions were that these were all arranged by a people-trafficker and that he had nothing to do with them. Before the Refugee Appeals Tribunal, however, the applicant's father appears to have stated that it had taken him a year to get the visa and that his cousin was of assistance.

4 Mr. O'Halloran informed me that the applicant's father explained the discrepancy by saying that this evidence before the tribunal in fact referred to the unrecorded (and hitherto unheard-of, as far as this case is concerned) 2008 permission which was said to have been obtained by way of appeal against the 2007 refusal.

5 On 3rd September, 2010, the applicant's parents and brother came to Ireland via Dubai and the UK, said to have been travelling on false British passports. Prior to leaving Pakistan they had lived initially in Jhelum in Punjab, then in Lahore and finally in Karachi.

6 However the UK Border Agency records the applicant's parents' fingerprints as showing up on their database in connection with their own genuine Pakistani passports. The applicant's parents contend that the only time they travelled to the UK (other than the alleged 15 day visit in 2008) was in transit on their way to Ireland. This would suggest that, contrary to what they told the tribunal, their genuine Pakistani passports were used to get as far as the UK.

7 Mr. O'Halloran informed me that the applicant's father explains the discrepancy by saying that the people-trafficker in this case had access to both the false British passports and the genuine Pakistani passports with British multi-entry visas, and used the genuine ones at the UK border. However it is not by any means clear to me (nor indeed has any explanation been put forward) as to why there was a necessity for false British passports if the family had access to, and indeed, used, genuine passports which were sufficient to gain entry to the UK.

8 On 4th September, 2010, the day after the parents arrived in Ireland, the applicant was born in the National Maternity Hospital.

9 In September 2010, the parents and the applicant's brother applied for asylum but these applications were withdrawn in October 2010. The ostensible reason for the withdrawal was that the applicant's uncle had been kidnapped and it was intended that the family would return to Pakistan to deal with the matter, but subsequently, matters were resolved without this being necessary. There was then an application for readmission to the asylum process under s. 17(7) of the Refugee Act 1996, which was refused.

10 On 4th July, 2011, an asylum application was submitted on behalf of the applicant. This was rejected by the Refugee Applications Commissioner on 28th July, 2011.

11 On 17th October, 2011, the applicant appealed to the Refugee Appeals Tribunal. This appeal was rejected on 25th November, 2011.

12 The present proceedings challenging this refusal were instituted on 20th December, 2011. This is slightly out of time but Ms. Anne Harnett-O'Connor, B.L., for the respondents has consented to an extension of time and I will make that order.

13 Mr. O'Halloran challenged the Tribunal decision under a number of headings, which I will deal with in sequence as follows.

Can the Tribunal rely on the situation of the parents where there has been no substantive finding in relation to them?

14 Regulation 5(1) of the 2006 Regulations, the European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006), implementing Article 8(2)(a) of the Procedures Directive, Directive 2005/85/EC, requires that an application be ‘individually’ assessed.

15 In J.O. v. Minister for Justice, Equality and Law Reform [2009] IEHC 478 at para. 8, Cooke J. accepted that the requirement for individual assessment...