NG (a minor) v Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform

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Respondent/Defendant:Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform
Court/s:High Court
Citation/s:[2014] IEHC 428
Nature of Proceedings:Judicial Review
Judgment Date/s:05 Sep 2014
Judge:McDermott J.
Category:Refugee Law
Keywords:Asylum, Asylum Seeker (Secondary Movement of), Child, Minor, Persecution, Refugee, Refugee Law
Country of Origin:Ukraine
URL:https://www.courts.ie/acc/alfresco/7d09fe7c-06cc-4dc7-9c2d-2e72c86f93ab/2014_IEHC_428_1.pdf/pdf#view=fitH
Geographic Focus:Ireland

Facts:
The applicant was the Irish-born daughter of two Ukrainian nationals who had arrived in Ireland in 2000 and 2001 and unsuccessfully claimed asylum. They had alleged that they were at risk of persecution in Ukraine from corrupt officials. It was considered that she was fleeing prosecution rather than persecution and that state protection was available to them. They applied for asylum on behalf of their daughter in 2008, basing her claim on theirs and contending, additionally, that she formed part of a particular social group, namely persons whose parents refused to submit to state corruption. Her claim was unsuccessful before the Refugee Applications Commissioner and, on appeal, the Refugee Appeals Tribunal, whose decision she challenged in these proceedings.

Reasoning:
The Tribunal had held that were it to be determined by the Minister for Justice that the applicant’s parents’ were likely to suffer persecution, then the issue of “indirect persecution” could be appropriate. The applicant submitted that the Tribunal erred in law in finding that the issue of indirect persecution was a matter for the Minister to consider and had failed to adjudicate on that aspect of her case. The court rejected this claim, holding that it had to be read in the context of the history of the case, which was that the Minister had already rejected the parents’ claim for asylum following the determinations by the asylum authorities in respect of them. It had been accepted by the Tribunal that indirect persecution could be successfully claimed by an applicant where their close relatives suffered persecution, but no such evidence existed in the instant case. The Tribunal had referred to the inadequacies of the evidence concerning the alleged direct persecution of the father and mother and consequently, any issue of indirect persecution did not and could not arise on the facts of the case.

Secondly, the applicant contended that the Tribunal had erred in fact in concluding that her parents were entitled to seek leave to remain in the state under s. 3 of the Immigration Act 1999, given that it was aware that deportation orders had already been made against them and that their judicial review of those decisions had failed. The court held that, whilst the Tribunal had misstated the facts, it had not done so in any material way and that the decision remained valid.

Thirdly, the applicant contended that, on foot of changes wrought by reg. 10 of the EC (Eligibility for Protection) Regulations 2006, she was entitled to protection on her own account and by reference to her parents’ alleged persecution. The court rejected this also, noting that no marked changes had been made to Irish refugee law by the said reg. 10, and that the matter of indirect persecution had been considered by the Tribunal.

Finally, for the above reasons, the court rejected the claim that the Tribunal had erred in law in determining that the applicant’s claim did not have a Convention nexus. It was also, it held, too general and imprecise to give rise to a ground for relief.

Decision:
The court accordingly refused leave and upheld the Tribunal’s decision.

Principles:

A child of parents whose application for asylum has failed cannot, ordinarily, claim to have any fear of returning to its country of origin if its claim is based on theirs, particularly if theirs has failed for want of credibility.

Misstatement of fact by a decision-making body will not result in its decision being quashed unless it is material to it.

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