S.W.I.M.S. (Nigeria) v The Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 19 April 2018
• Neutral Citation: [2018] IEHC 257
• Docket Number: [2011 No. 865 J.R.]
• Court: High Court
• Date: 19 April 2018

[2018] IEHC 257

THE HIGH COURT

JUDICIAL REVIEW

Humphreys J.

[2011 No. 865 J.R.]

BETWEEN

S.W.I.M.S. (NIGERIA)

(A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, A.B.S.)

APPLICANT

AND

THE MINISTER FOR JUSTICE AND EQUALITY,

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Asylum, Immigration & Nationality – Refusal of asylum claim – Refusal of subsidiary protection – Issuance of deportation order

Facts: The first applicant sought a judicial review of the decision of the first respondent who had refused the first applicant's application for subsidiary protection and an application for leave to remain. The applicant was then deported.

Mr. Justice Richard Humphreys dismissed the application for judicial review. The Court found that the first respondent had assessed the country of origin information and made findings in relation to the availability of the functioning police force and judicial system in the country of origin. The Court held that those findings were correct.

JUDGMENT of Mr. Justice Richard Humphreys delivered on the 19th day of April, 2018

1 The applicant was born in the State in September, 2010. His parents applied on his behalf for asylum in October, 2010. In February, 2011, asylum was refused. In March, 2011, an application for subsidiary protection and leave to remain was made. Those applications were refused in July, 2011 and a deportation order was made on 9th August, 2011. Th applicant was then deported.

2 The present proceedings were filed on 16th September, 2011, although leave was not granted until I dealt with the matter on 9th October, 2017, when I also gave leave to add additional grounds.

3 I have heard helpful submissions from Mr. Paul O'Shea B.L. for the applicant and Mr. Anthony Moore B.L. for the respondent.

Relief sought

4 The primary substantive relief is certiorari of the subsidiary protection refusal and the deportation order.

The boilerplate nature of the claim

5 The application re-runs legal points which previously failed in N.M. v. Minister for Justice and Equality [2018] IEHC 186 [2018] 2 JIC 2710 (Unreported, High Court, 27th February, 2018) and F.M. v. Minister for Justice and Equality (Unreported, High Court, 17th April, 2018) and I follow those decisions here.

6 It seems to me that the entirely boilerplate nature of the grounds advanced was not acceptable even prior to the Rules of the Superior Courts (Judicial Review) 2011. But even if I am wrong about that I consider that the rules do in fact apply here. I note that Mac Eochaidh J. in M.A. v. Minister for Justice & Equality [2015] IEHC 287 (Unreported, High Court, 6th May, 2015), indicated at paras. 30 and 31 that vague pleadings might be acceptable if they predated the 2011 rules of court. He, therefore, took a ' generous' view, but that was in a case where he was minded to grant relief in any event. It seems to me one could possibly take a generous view of infirmities in pleadings in the interests of justice if an applicant has a good point, depending on all the circumstances, and perhaps vice versa.

7 Here, however, leave was granted after the 2011 rules came into force. Especially in circumstances where an applicant has taken advantage and benefit of the lapse of time between filing the proceedings and the grant of leave to seek an amendment at the leave stage after proceedings were issued, it is not appropriate to allow the applicant to simultaneously claim exemption from the new rules. Mr. O'Shea makes the jaded submission, rejected on many previous occasions, that domestic law such as rules of court should be disapplied if an EU law point is raised. That submission is misconceived; all domestic rules apply to EU law claims subject only to the principles of equivalence and effectiveness. I do not read Mac Eochaidh J's judgment in M.A. as being to the contrary.

Fact-specific grounds

8 Apart from the legalistic points already rejected, Mr. O'Shea says that the fact-specific grounds are ground 8, that country of origin information was read selectively and the conclusions were irrational, and ground 13, that the country material was insufficient, read selectively and not made available until after the hearing, a point already rejected in Y.Y. v. Minister for Justice and Equality [2017] IESC 61 [2018] 1 I.L.R.M. 109, per O'Donnell J.

9 His main point, as he articulates it, is an inadequate assessment of country material regarding State protection in respect of Muslim fanatics. The issue of State protection is specifically dealt with by the Minister in the decision. Mr. O'Shea complains that material regarding police unlawful conduct is not read in favour of the applicant but there is no obligation to read material in the most favourable way for an applicant.

10 Few countries, particularly very large countries, are ones where all police forces are blameless; and indeed Nigeria, having significant internal conflict, is almost bound to have more serious instances of irregularities on occasion. I would follow the approach of Birmingham J. in G.O.B. v. Minister for Justice & Equality [2008] IEHC 229 (Unreported, High Court, 3rd June, 2008), where he said at para. 26 ' one must appreciate that the Minister and his officials are not coming to this issue as total novices. A great number of other cases will have raised issues about seeking assistance from the Nigerian police. Those officials who deal with these issues must be...