D (K) [Nigeria] v Refugee Appeals Tribunal & Min for Justice

JurisdictionIreland
JudgeMS JUSTICE M. H. CLARK,
Judgment Date01 November 2013
Neutral Citation[2013] IEHC 481
CourtHigh Court
Docket Number[2009 No. 623 JR]
Date01 November 2013
D (K) [Nigeria] v Refugee Appeals Tribunal & Min for Justice
JUDICIAL REVIEW
Between:/
K. D. [NIGERIA]
APPLICANT
-AND-
THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM
RESPONDENTS

[2013] IEHC 481

Record No. 623 J.R./2009

THE HIGH COURT

IMMIGRATION

Asylum

Internal relocation - Principles applicable to internal relocation alternative - AA (Morocco) v Refugee Appeals Tribunal [2011] IEHC 389, (Unrep, Cooke J, 12/10/2011); CA v Refugee Applications Commissioner [2008] IEHC 261, (Unrep, Birmingham J, 2/7/2008); SIA (Sudan) v Refugee Appeals Tribunal [2012] IEHC 488, (Unrep, Clark J, 4/10/2012); BOB v Refugee Appeals Tribunal [2013] IEHC 187, (Unrep, MacEochaidh J, 2/5/2013); GOB v Minister for Justice [2008] IEHC 229, (Unrep, Birmingham J, 3/6/2008); SBE v Refugee Appeals Tribunal [2010] IEHC 133, (Unrep, Cooke J, 25/2/2010); CE v Minister for Justice [2012] IEHC 3 (Unrep, Hogan J, 11/1/2012); WMM v Refugee Appeals Tribunal [2009] IEHC 1, (Unrep, Cooke J, 11/11/2009); PO (Nigeria) v Minister for Justice [2010] IEHC 513, (Unrep, Ryan J, 22/10/2013) and DT v Minister for Justice [2009] IEHC 482, (Unrep, Cooke J, 3/11/2009) considered - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), reg 7 - Decision quashed (2009/623JR - Clark J - 1/11/2013) [2013] IEHC 481

D(K)(Nigeria) v Refugee Appeals Tribunal

The applicant, K.D, a Nigerian national, applied for asylum in 2006. She claimed that she suffered persecution as a result of her membership of the Osu caste in Nigeria, and that she feared further persecution if returned. It was decided by the Refugee Applications Commissioner and the Refugee Appeals Tribunal that her application for refugee status be denied. The Tribunal Member accepted that the applicant was Osu, and accepted that the Osu faced prosecution. He also found, however, that it was possible for the applicant to relocate within Nigeria to a location where the Osu weren"t the subject of persecution, and that the protection of the Nigerian State was available to her. The applicant sought an order quashing the decision of the Refugee Appeals Tribunal from 21 st April 2009.

In 2005, on learning of her Osu status, K.D"s partner"s family refused to accept their relationship. The father and brother of the applicant"s partner verbally abused her, and when she became pregnant in 2006, his three brothers assaulted her to the extent that she miscarried. Her partner"s brothers were arrested. After this, the father threatened the applicant, and her house was set on fire. The police investigated this, arrested the brothers, and advised the applicant to go abroad to 'save her life'. The applicant fled to Port Harcourt, where, after being tracked by one of her partner"s brothers, managed to escape to Ireland. The applicant produced numerous documents to aid her claim. These included a letter from the Commissioner of Police of Enugu State to the Assistant Inspector General of the Nigerian Police from the 20 th of November2006, a letter from her maternity hospital and a photograph of the destroyed house.

The Tribunal Member"s finding that the applicant should not have been declared a refugee was based on two findings: the availability of state protection; and the applicant"s ability to relocate internally. On the issue of state protection, the court drew attention to the letter produced by the applicant by the Commissioner of Police of Engu which stated that he was 'of the opinion that [the applicant"s fiancé] should as a matter of urgency do everything humanly possible to take his fiancé out of the state to save her life'. Finding that it wasn"t clear whether the Tribunal Member even considered this letter, the Court held the Tribunal Member"s decision on this point to be 'incomplete' and 'lacking in clarity. On the issue of internal relocation, the Tribunal Member concluded that the applicant failed to discharge her burden of satisfying him that she would be unable to relocate. The court held that this assessment of internal relocation was deficient as this burden was in fact shared, as set out in Regulation 7 of the ECs (Eligibility for Protection) Regulations 2006 and the UNHCR Guidelines. Clark J. concluded that the Tribunal Member decided that a persecuted Osu could move to Port Harcourt without any investigation into whether it was safe, whether adequate state protection existed, and whether there were any obstacles in moving there.

The decision was therefore quashed and ordered to be remitted to another Tribunal Member for fresh consideration.

REFUGEE ACT 1996 S16(8)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7

O (P) (NIGERIA) v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL (TWOMEY) UNREP RYAN 22.10.2010 2011/43/12383 2010 IEHC 513

REFUGEE ACT 1996 S13

A (C) v REFUGEE APPLICATIONS CMSR & ORS UNREP BIRMINGHAM 2.7.2008 2008/1/1 2008 IEHC 261

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

T (D) v REFUGEE APPEALS TRIBUNAL UNREP COOKE 3.11.2009 2009/54/13737 2009 IEHC 482

M (WM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 11.11.2009 2009/37/9251 2009 IEHC 492

E (SB) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 25.2.2010 2010/17/4323 2010 IEHC 133

A (A) (MOROCCO) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP COOKE 12.10.2011 2011/1/41 2011 IEHC 389

E (C) v MIN FOR JUSTICE & ORS UNREP HOGAN 11.1.2012 2012/13/3808 2012 IEHC 3

A (SI) (SUDAN) v REFUGEE APPEALS TRIBUNAL (BRENNAN) & ORS UNREP CLARK 4.10.2012 2012 IEHC 488

B (BO) v REFUGEE APPEALS TRIBUNAL & ORS UNREP MACEOCHAIDH 2.5.2013 2013 IEHC 187

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7(1)

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 7(2)

REFUGEE ACT 1996 S2

1

The applicant claims that she has suffered persecution by reason of her membership of the Osu caste in her native Nigeria and that she fears further persecution if returned to her country of origin. Both the Refugee Applications Commissioner and the Refugee Appeals Tribunal recommended that she should not be granted refugee status. The Tribunal Member seems to have accepted that she is Osu and that the Osu face persecution, but he found that the protection of the Nigerian State is available to her and that she could reasonably be expected to relocate outside of Igboland where the Osu caste system is confined. The applicant therefore seeks an order quashing the decision of the Tribunal dated the 21 st April, 2009. A telescoped hearing took place on the 18 th June, 2013, at which Ms Eve Bourached B.L. appeared for the applicant and Mr Daniel Donnelly B.L. appeared for the respondents.

Background
2

The applicant applied for asylum in 2006 on the following basis. She is of the Igbo tribe and a Christian and is labelled Osu or "outcast" under Igbo traditions. She said the idea of Osu comes from her forefathers and that Osu people are seen as slaves and cannot marry freely and do not associate with other people. Her sisters were all over 40 and had not married and her mother had been married but was sent away because she was Osu. She also claimed that her mother had a heart-attack and died because of the frustration of what happened to her daughters.

3

Her own claimed circumstances were that she was born in Imo State in 1981 and completed her secondary education there before moving to Enugu State where she was self-employed as a hairdresser. In 2003 when she and her boyfriend, who was Igbo, discovered that she was pregnant, they decided to marry. When she told him of her Osu status he was furious and demanded that she terminate the pregnancy. She refused and he abandoned her. Their son was born in 2004 and he now lives with one of her older sisters in Port Harcourt. In 2005 she began a relationship with another Igbo man. She disclosed her Osu status at an early stage of their relationship. He was a Christian and did not believe in outcasts and therefore did not object. However his family refused to accept their relationship once they discovered she was Osu and they walked out of the family marriage negotiations. His father and brother also verbally abused her. When she became pregnant in June 2006, his three brothers came to her house and physically assaulted her so that she miscarried. Her neighbour brought her to hospital and called the police who arrested her partner's brothers. A week later when she was released from hospital she went to the police station and gave a statement. By then her attackers who had been arrested had been released on bail and the police said her intended father-in-law had promised he would sort things out as it was a family matter.

4

The applicant thereafter hid from her prospective in-laws, but they became aware of the continuing relationship when she was seen at a party with her fiancé and she was again threatened at her home by the father-in-law. The following month, November 2006, she returned from visiting her aunt to find her house on fire. Her neighbour told her that the thugs who set fire to the house believed she was in the house and intended to kill her, and advised her to disappear. She went to the State headquarters of the police and made a statement. They sent people to investigate and arrested her fiancé's brothers but advised her to go abroad to save her life. Her fiancé took her and her son to her sister's house in Port Harcourt but one of his brothers followed them there. The applicant fled through the back door and her fiancé brought her to Lagos where he paid an agent to arrange her travel to Ireland, leaving her son behind. Her fiancé also remained behind and it is unclear whether she is still in contact with him.

5

The applicant submitted a number of documents in support of her...

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