The High Court has dismissed a five-year-old child’s application for leave to seek judicial review of a Refugee Appeals Tribunal decision rejecting his asylum appeal.
In a judgment delivered on 27 February 2017, Mr Justice Richard Humphreys said the application did not meet the substantial-grounds test. The court refused leave; it did not determine a fresh asylum claim or reconsider the tribunal’s decision on its merits.
The applicant, identified as J.M.N., was born in Tralee in December 2011 and was of Zimbabwean origin. His mother and next friend, identified as N.M., had applied for asylum on his behalf in July 2014. The Refugee Applications Commissioner rejected that claim in October 2014. The tribunal rejected the child’s appeal in a decision dated 1 November 2016 and issued on 3 November.
The judicial review application argued, among other things, that the tribunal had failed to assess whether the child could face serious discrimination in Zimbabwe because he was born and raised in Ireland, lacked a Zimbabwean birth certificate and was the child of asylum seekers. The applicant’s submissions linked the lack of a birth certificate to possible difficulties accessing public services, including education, and argued that discrimination could amount to persecution.
Justice Humphreys said the material before the tribunal fell well short of the extreme circumstances described by the Supreme Court in a separate case concerning denial of education. He also found that the birth-certificate and education argument had not been clearly advanced to the tribunal as an independent basis for asylum.
The original notice of appeal was generic and referred to Nigeria rather than Zimbabwe. Later written submissions described the claim as based on perceived political opinion. Supplemental submissions referred to the child’s circumstances, including being born in Ireland and lacking a Zimbabwean passport or birth certificate, but the judge said those matters had been presented in the context of that earlier claim, rather than as a distinct claim based on membership of a particular social group.
The judge concluded that the tribunal had addressed the claim actually put to it and was not required to analyse a substantially different case reconstructed for judicial review. The other grounds, alleging selective use and unfair weighing of country-of-origin information, depended on the rejected argument and did not arise. The judge added that the use and weight of such information were matters for the decision-maker.
The court dismissed the application for leave to seek judicial review. It directed that the matter be listed for any consequential application for leave to appeal, if made, on notice to the respondents, and ordered the applicant to serve the Chief State Solicitor’s Office with a copy of the judgment.