O.A. (Nigeria) v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 20 November 2018
• Neutral Citation: [2018] IEHC 661
• Docket Number: [2018 No. 15 J.R.]
• Court: High Court
• Date: 20 November 2018

[2018] IEHC 661

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2018 No. 15 J.R.]

BETWEEN

O.A. (NIGERIA)

AND

F.A. (A MINOR SUING BY HIS MOTHER AND NEXT FRIEND O.A.)

APPLICANTS

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL, THE MINISTER FOR JUSTICE AND EQUALITY, THE ATTORNEY GENERAL

AND

IRELAND

RESPONDENTS

Asylum & Immigration – Deportation – Refusal of application for international protection – Application for certiorari in respect of IPAT decision

Facts: The applicants were Nigerian nationals who claimed the mother had been the victim of threats to kill. They had received deportation orders and applied for International Protection, which was refused, this refusal being upheld on appeal to the IPAT. The applicants now applied for review seeking certiorari in respect of the IPAT decision.

Held, that the application would be dismissed. The mother applicant was clearly an economic migrant who was not the subject of any injustice by the IPAT’s decision. The respondents were therefore were free to pursue the enforcement of the deportation orders.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 20th day of November, 2018

1 The applicants are a mother and child from Nigeria, the mother having been born in 1978. She made the case that she was the victim of threats to kill made by her father's relatives after the father's death in 2000. She claims that her brother was killed as part of this dispute. Nevertheless, she remained in Nigeria for nine years thereafter working in a variety of jobs. She moved to the U.K. on a valid visa in 2009 and never claimed asylum there (see para. 4.2(d) of the tribunal decision). She claimed to be unaware of the asylum process, despite becoming pregnant by a man who was a recognised refugee.

2 She came to Ireland unlawfully in late 2012 and the child was born here on 28th July, 2013. The applicants received deportation orders on 2nd May, 2016, which are still in force, although subject to an undertaking for the purposes of the present application. Following receipt of the deportation orders, the applicants applied for international protection on 24th May, 2016. Those claims were rejected by the International Protection Office on 17th July, 2017. Notices of appeal to the IPAT were delivered on 9th August, 2017 and submissions made on 16th October, 2017, including reliance on UNHCR Guidelines in International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees of 22nd September, 2009 . On 26th October, 2017 an oral hearing took place before Mr. Conor Gallagher B.L., the tribunal member. Ms. Lisa McHugh B.L. appeared for the applicants. On 22nd November, 2017, the applicants were notified that the tribunal had rejected the appeal.

Procedural history

3 I granted leave in the present proceedings on 15th January, 2018, the primary relief sought being certiorari of the tribunal decision. A statement of opposition was filed on 22nd February, 2018. The applicants” submissions were delivered on 21st June, 2018. The respondents” replying submissions are undated but were filed on 26th June, 2018.

4 I have received helpful submissions from Mr. Mark de Blacam S.C. (with Mr. Garry O'Halloran B.L.) for the applicants and from Ms. Sarah K.M. Cooney B.L. for the respondents. Mr. de Blacam has helpfully confirmed that the challenge is limited to grounds 3 and 5 of the statement of grounds insofar as those grounds relate to consideration of the child's interest.

Best interests of the child - Ground 3

5 Ground 3 alleges that ‘the Tribunal failed to properly assess the position of the second- named applicant (the minor) as a result of erroneously holding that the best interest principle is confined to procedural matters’. The premise of this ground is incorrect because the tribunal did not hold that the best interest principle is confined to procedural matters. Having said that, the best interest principle is of limited or possibly no relevance to a purely factual finding such as that of past persecution, or the factual as opposed to the methodological element of the assessment of forward-looking risk. Insofar as the principle was relevant, it was considered: see s. 5.3 of the decision which accepts inter alia that acts committed against children could be persecution even if the same acts inflicted on adults would not be. Thus the tribunal member took the principle into account. His decision is not correctly represented in the applicants” ground, which in any event has not been made out.

Risk of future harm to the child - ground 5

6 Ground 5 alleges that ‘ the Tribunal erred in foreclosing on speculation in respect of the possibility of the applicants being exposed to persecution or serious harm in the future on account of their particular circumstances…’. The second sentence of the ground relates to the mother rather than the child, so is not being pursued. The UNHCR guidelines were relied on, in particular generalised passages about many types of human rights violations at para. 13 and socio-economic needs at para. 14. Mr. de...