RM (an Infant) v Minister for Justice

JudgeMs. Justice Stewart
Judgment Date09 July 2015
Neutral Citation[2015] IEHC 441
CourtHigh Court
Docket Number[2011 No. 776 J.R.]
Date09 July 2015

[2015] IEHC 441

Stewart J.

[2011 No. 776 J.R.]



Asylum, Immigration & Nationality – Judicial review – Appeal against the decision of the Refugee Appeals Tribunal – S. 18 of the Refugee Act 1996 – Status of asylum application of children of failed asylum seekers with no distinct fear of persecution

Facts: The applicant through his mother sought an order of certiorari against the decision of the second named respondent affirming the recommendation of the Office of the Refugee Applications Commissioner that the applicant should not be declared as a refugee. The mother of the applicant who was permitted to stay in Ireland after her failed asylum application contended that it was she who had fear of being persecuted and not the applicant.

Ms. Justice Stewart refused to grant an order of certiorari to the applicant in the absence of any well-founded fear of persecution separate and distinct from his mother. The Court found that the present case presented an example where the parents who were refused refugee status would attempt to remain in the State of Ireland by applying the asylum application of the children who by the time had spent a considerable part of their life in Ireland and thus acted as a hindrance in the enforcement of the deportation orders.

JUDGMENT of Ms. Justice Stewart delivered on the 9th day of July, 2015

This is a telescoped hearing for judicial review seeking an order of certiorari quashing the decision of the Refugee Appeals Tribunal (RAT) of 28th July, 2011, which affirms the recommendation of the Offices of the Refugee Applications Commissioner (ORAC) that the applicant should not be declared a refugee. Further, the applicant seeks an order remitting the appeal of the applicant for full reconsideration by the RAT.


The applicant is a minor born in the State on 26th August, 2010, and by parentage is a national of the Democratic Republic of Congo (hereinafter referred to as the DRC). The applicant's mother arrived in the State in 2006 and is a failed asylum seeker from the DRC. The applicant's mother was granted leave to remain on 8th May, 2014, and this permission was extended to the applicant.


An application for a declaration of refugee status was made on behalf of the applicant by his mother, and next friend in these proceedings, on 6th April, 2011. Due to the applicant's age, all questionnaires and interviews were completed by the applicant's mother on the applicant's behalf.


At the s.11 interview, the ORAC authorised officer questioned the applicant's mother regarding his asylum claim and it is worthwhile setting out here that part of the interview:

‘Q8. What is your own status in this State?

I have a deportation order. My asylum has been refused and subsidiary protection. Then I was issued with a deportation order.

Q9. Can you explain for me in detail what you fear for your child if he went to DRC?

R[…] does not have any fears. He was born here.

Q10. Are there any reasons why the child would fear to go to DRC?

He is just a child. In Congo they do not know him.

Q.11 May I ask why did you lodge the asylum application on R[…]'s behalf?

I was asked to lodge the asylum application for him by Immigration as he has no status in this State.

Q12. You have said that R[…] would have no fear should he go to Congo. Is there anything further you wish to add – or any other reasons why R[…] would be unable to go to DRC?

No. The one that is in danger is me not R[…].’


At Q.22, the interview continues as follows:

‘Are you satisfied that you had a full opportunity to detail the reasons why R[…] would be unable to go to DR Congo?

Yes. As I said, R[…] is not in danger. It is me. He came to seek asylum because of my case. I would be in danger.’


By decision dated 16th June, 2011, ORAC recommended that the applicant not be granted refugee status, finding that the applicant did not have a well-founded fear of persecution and that there was no nexus, expressed on behalf of the applicant, to any Convention grounds. A s.13(6)(a) finding was found to be appropriate to this claim, which states: ‘The application showed either no basis or a minimal basis for the contention that the applicant is a refugee’. The result of this finding is that the applicant's appeal to the Refugee Appeals Tribunal was by way of a papers-only appeal.


By decision dated 28th July, 2011, the RAT issued a negative decision in respect of the applicant's claim. The tribunal found that the applicant did not have a well-founded fear of persecution, stating that the only fear expressed was that of his mother and that this fear had previously been found by both ORAC and the tribunal not to be well-founded.


Under the heading “analysis of the applicant's claim”, the tribunal member sets out the reasons for the negative decision:

‘The applicant is entitled to citizenship of the DR Congo based on the stated nationality of his mother. The applicant does not have any fear of returning to DR Congo and the witness did not refer to any reason why he could not return there. The only fear expressed was that of her own and this was found by the Commissioner and the Refugee Appeals Tribunal not to be well-founded. The difficulty inherent in applications such as this where there is no history upon which to rely, other than that of the parent, and in this respect there is always the inclination or tendency to attempt to go back over ground previously covered, in this case the mother's application. The Tribunal is mindful that a re-examination of the case already dealt with should not be entered into. An application by a child born to parents who have already been through the refugee determination process, cannot be “a second bite at the cherry”. The Tribunal refers to the Judgment of Clarke J. (24th June 2005) [ Imoh & ors. v Refugee Appeals Tribunal & anor. [2005] IEHC 220]–“if a decision maker within the refugee process comes to a justified decision (this is to say a decision which is not subject to being quashed on review) to the effect that such a well-founded fear did not exist then that finding would equally apply in relation to the position of any minor whose claims were based on the same grounds”. The Tribunal refers to Clark J. 19th May 2009 I.N.M. –v- MJELR-; “it will be highly unusual for a parent to fail to establish a fear of persecution and for a dependent minor child to succeed. It will be even more unusual for a toddler to succeed where her mother fails”.

Taking all matters in the round, the Tribunal is satisfied the applicant is not a refugee for any of the reasons set out in Section 2 of the Refugee Act 1996 (as amended). In arriving at this decision the Tribunal has taken into consideration the UNHCR Guidelines in assessing claims by minors, the International Convention on the Rights of the Child and what is in the best interest of the infant.’


Mr. Paul O'Shea B.L., counsel appearing on behalf of the applicant, submitted that because the applicant's application was submitted three years after the mother's application, up-to-date country of origin information should have been analysed in respect of the claim. Basing the impugned decision on a previous decision was a breach of fair procedures, according to the applicant, and amounts to a refusal to examine the claim, which is a breach of the minimum standards required by both the Council Directive 2005/85/EC of 1st December 2005, on minimum standards and procedures in Members States for granting and withdrawing refugee status, O.J.L. 326/13 13.2.05 (hereinafter referred to as the Procedures Directive), Article 8(2) and European Communities (Eligibility for Protection) Regulations 2006 ( S.I. No. 518 of 2006), s. 4 (1). The applicant contended that the decision-maker should not have had access to and/or relied upon the mother's decision at all. The applicant submitted that there was an erroneous interpretation of Clark J.'s decision in I.N.M. v. Minister for Justice, Equality and Law Reform & anor. [2009] IEHC 233 where the tribunal member quoted from para.32 as follows:

‘It will be highly unusual for a parent to fail to establish a fear of persecution and for a dependent minor child to succeed. It will be even more unusual for a toddler to succeed where her mother fails.’


The applicant submitted that this does not mean that there should be no re-examination of the applicant's case as the applicant contended had happened in his case.


The applicant further submitted that the denial of an oral hearing at the appeal stage of the RAT meant there was no possibility of challenging the credibility finding at appeal stage. Counsel placed reliance on a judgment of Cooke J. in S.U.N. (South Africa) v. Refugee Applications Commissioner & ors. [2012] IEHC 338 which concludes, according to the applicant's interpretation at hearing, that where an applicant is refused a grant of refugee status based upon negative credibility findings then the discretion exercised by the commissioner to apply s.13(6) of the Refugee Act 1996 (as amended) is unlawful where the decision is grounded upon credibility.


The applicant submitted that the best interests of the child were not considered at all in this case, contrary to article 24 of the Charter of Fundamental Rights of the European Union.


The applicant submitted that the tribunal failed to have regard to paras.67 of the UNHCR Handbook on Procedures and Criteria for determining Refugee Status which provides:

‘It is for the examiner, when investigating the facts of the case, to ascertain the reason or reasons for the persecution feared and to...

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