O (B A)(A Minor) and Others v Refugee Appeals Tribunal & Min for Justice

• Jurisdiction: Ireland
• Judge: Mr. Justice Cooke
• Judgment Date: 06 November 2009
• Neutral Citation: [2009] IEHC 499
• Court: High Court
• Date: 06 November 2009

[2009] IEHC 499

THE HIGH COURT

[No. 1350 JR/2006]

O (B A)(A Minor) & Ors v Refugee Appeals Tribunal & Min for Justice

[2009] IEHC 499

JUDICIAL REVIEW

BETWEEN

B.A.O., O.L.O., AND M.J.O. (A MINOR SUING BY HER MOTHER AND NEXT FRIEND B.A.O.)

APPLICANTS

AND

REFUGEE APPEALS TRIBUNAL AND MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

REFUGEE ACT 1996 S13

CANADA (A G) v WARD 1993 2 SCR 689

B (GO) v MIN FOR JUSTICE UNREP BIRMINGHAM 3.6.2008 2008/2/390 2008 IEHC 229

HORVATH v SECRETARY OF STATE FOR THE HOME DEPT 2001 1 AC 489 2000 3 WLR 379 2000 3 AER 577

REFUGEE ACT 1996 S17(1)

1 1. By order of O'Keeffe J. of the 27 ^th January 2009, leave was granted to bring the present application for, inter alia, an order of certiorari to quash a decision of the Refugee Appeals Tribunal dated the 3 ^rd October, 2006, (the "Contested Decision") which rejected the appeal brought by the applicant against a report and negative recommendation of the Refugee Applications Commissioner under section 13 of the Refugee Act 1996.

2 2. In her claim, as considered both by the Commissioner and the Tribunal, the applicant had expressed a fear of persecution if returned to her country of origin on a number of grounds. Leave was granted however to bring this application on a single ground as follows:

"The First Named Respondent erred in law in failing to conduct a rational analysis of the country of origin information and in failing to resolve a conflict in the said country of origin information in considering the matter of State protection in Nigeria against female genital mutilation."("FGM")

3 3. The context to the application can be briefly summarised as follows: The applicant is from Nigeria and is now 31 years old. She fled Nigeria arriving in the State on the 3 ^rd April 2006, and claimed asylum here on the same day. Her daughter, the second named applicant, was born here in May 2006. The mother's reasons for leaving Nigeria as given in her asylum application were twofold. First, she fears her father who is a strict Muslim and influential in the community and with the authorities in Ibadan where she comes from. He had wanted her to marry a Muslim acquaintance of his over 50 years of age. She however started a relationship with a Christian boyfriend and became pregnant. He remains in Nigeria and is the father of her daughter, the second named applicant. She converted to Christianity. Her father greatly objected and attempted to force her to have an abortion even, she believes, to the extent of making her drink poisoned water in an attempt to abort the child.

4 4. Secondly, when she and her partner learned that the child would be a girl the partner feared that his family would force them to have the child circumcised as this practice was followed in his family and a niece of his had died in an FGM attempt in 2002. Other fears based on the fact that the infant daughter is blind and in frail health since birth such that she would face persecution and difficult access to treatment in Nigeria, were also expressed but formed no part of the present application.

5 5. The Tribunal's Contested Decision deals primarily with the FGM issue. It sets out under the heading "Analysis of claim/determination" the conditions to be applied in assessing whether the definition of refugee in the 1996 act are met and in particular the criteria for assessing whether a genuine risk of persecution have been demonstrated. The case law is then cited on the concept of available State protection in a country of origin.

6 6. The country of origin information in relation to deficiencies in law enforcement as submitted on behalf of the applicant is then summarised. This undoubtedly indicates that there are important problems in policing. There is said to be a high degree of inefficiency linked to high levels of corruption within the Nigerian Police Force. Quoted passages emphasise the difficulties surrounding internal relocation to avoid persecution by non State actors because of the problems of surviving in Nigeria without support and shelter from an extended family.

7 7. The decision then further refers to more recent country of origin information in the form of a Report on Human Rights in Nigeria by the Danish Immigration Service dating from January 2005 from which passages at paragraphs 3.9.7 and 3.10.1 are quoted. The former confirms that the police do not become involved in preventing FGM even in those areas where it is banned because it is considered "a family thing" but states that there are groups opposed to FGM practice who support prospective victims of the practice so that "should a girl desire to avoid FGM in spite of pressure from her family to do otherwise, she has the opportunity to complain to the Nigerian Police Force or the National Human Rights Commission and in addition she may seek protection by women lawyers and NGO's".

8 8. The latter citation from paragraph 3.10.1 deals with relocation as an escape from forced marriages. There is then set out what appears to be the statement of the Tribunal member's reasoning for the conclusion reached on the availability of State protection against a threat of FGM and it is as follows:

"The applicant's partner was against circumcision. Given that both parties were against this, it is difficult to accept that same could be carried out without their consent. When one looks at the country of origin information it is clear that while there is need for widespread reform among the police force it is certainly inefficient and corrupt and there is...