By notice of motion dated 7th October, 2013, the applicant initiated an application for leave to apply by way of judicial review for an order of certiorari quashing the decision of the Refugee Appeals Tribunal to refuse her application for refugee status.
The respondents subsequently issued a notice of motion pursuant to O.19, r.28 RSC seeking an order dismissing or striking out the proceedings as frivolous and/or vexatious and/or having no reasonable prospect of succeeding or, alternatively, by reference to the exercise by the court of its inherent jurisdiction to dismiss the proceedings as an abuse of process.
The background to the applicant’s proceedings was that she was born in the State in 2012 to a Cameroonian mother, P.A. and a Ghanaian father, M.I., her next friend in the proceedings. Her parents both applied unsuccessfully for refugee status and deportation orders were eventually made in respect of them.
It was claimed that she was stateless. The basis of her claim largely mirrored that of her father’s application for asylum. It was also claimed that she would not receive an education in Ghana because of her father’s inability to work due to health difficulties. It was said that her mother would not travel to Ghana because of fears for her own safety and that of the other children. It was claimed that the applicant would be targeted because of her father’s political opinions and activities. Additionally, it was asserted that she was also in danger because her father had converted from Islam to Christianity and that she would be at risk from “the Muslim brotherhood”. Certain other claims were made on her behalf based on her relationship with her mother and certain assertions which had underpinned her mother’s earlier unsuccessful asylum claim.
The Tribunal held that the applicant might be entitled to citizenship of Cameroon and was also entitled to citizenship of Ghana. It was satisfied that she would not suffer persecution were she to live with her parents in Cameroon or Ghana. It noted that her parents’ earlier claims for refugee status had been rejected by the Tribunal on credibility grounds and it rejected those aspects of her claim which were based on their claims.
In dealing with the respondents’ motion, the court was obliged to consider the grounds of challenge to the Tribunal’s decision.
The first ground was based on the proposition that the Tribunal wrongfully relied upon the applicant’s right to acquire citizenship in Ghana and Cameroon.
The court concluded that that ground did not appear to offer a substantial basis on which to grant leave to apply for judicial review. It held that it was clear from the papers, the s. 13(1) report prepared for the Refugee Applications Commissioner, and the decision of the Tribunal, that the applicant was not stateless and was a national of Ghana, entitled to citizenship of that country as a matter of Ghanaian constitutional law. It noted that she might also be entitled to citizenship of Cameroon. It pointed out that it was clear from the papers that no effort at all had been made by her parents to assert citizenship on her behalf or to obtain the necessary documents from their appropriate national authorities. It observed that there was no suggestion that either parent was the subject of government or government-inspired persecution. The claim for asylum was based on a fear of persecution in Cameroon and Ghana, of which the parents are respectively nationals. There is no suggestion that they were stateless or that they had been deprived of their nationality.
The second and third grounds complained that the best interests of the applicant were not considered in reaching a determination or taken into account as a primary consideration in the matter.
The court noted that the substantive claims made on her behalf related to the experiences of her parents, and that once their claims had been determined to be baseless, it necessarily followed that the Tribunal would have regard to that in deciding her claim. The court held the grounds did not identify with any degree of precision what aspects of her best interests were not considered by the Tribunal, or how such matters affected in any meaningful way the determination of whether or not she was entitled to protection on a Convention ground.
Whilst the court was satisfied that the grounds sought to be advanced were open to criticism in a number of significant respects, it considered it important to bear in mind there existed a specific statutory jurisdiction under s. 5 of the Illegal Immigrants (Trafficking) Act 2000 to deal with the question of whether or not substantial grounds had been advanced. It considered that the existence of that procedure had to be considered when it was asked to dismiss proceedings, on the basis of its inherent jurisdiction, as an abuse of process. It noted that it was settled law that that jurisdiction should be sparingly used. A court should refrain from exercising it unless something in the nature of bad faith, or deliberate prolongation of proceedings to delay the implementation of patently valid orders was demonstrated, or where the invocation of judicial review jurisdiction was inappropriate, such as where a right of appeal was the appropriate way to proceed. Insofar as the instant case was concerned, it stated that it was mindful of the fact that the applicant was a minor and that and great care should be taken to ensure that the fullest and earliest possible opportunity was given to enable her case to be presented.
Accordingly, it refused the respondents’ application, but listed the matter for early hearing in the following legal term.