H.O. v Refugee Appeals Tribunal and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hedigan
• Judgment Date: 19 July 2007
• Neutral Citation: [2007] IEHC 299
• Date: 19 July 2007

[2007] IEHC 299

THE HIGH COURT

[No. 1166 J.R./2005]

O (H) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE

JUDICIAL REVIEW

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

BETWEEN

H. O.

APPLICANT

AND

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

RESPONDENTS

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP HIGH COURT CLARKE 10.5.2005 2005 IEHC 150 2005/31/6357

CANADA (AG) v WARD 1993 2 SCR 689

OKEKE v MIN JUSTICE UNREP PEART 17.2.2006

HATHAWAY THE LAW OF REFUGEE STATUS 1991 133 2006 IEHC 46

O'KEEFE v BORD PLEANALA 1993 1 IR 39

OSAYANDE & LOBE v MIN FOR JUSTICE 2003 1 IR 1

IMMIGRATION LAW

Asylum

Appeal - Decision of Refugee Appeals Tribunal - Refusal - Female genital mutilation - State protection - Internal relocation - Weight of evidence - Country of origin information - Decision as whole - Whether court should intervene - Standard of review - Idiakheua v Minister for Justice [2005] IEHC 150, (Unrep, Clarke J, 10/5/2005), Ward v Attorney General of Canada [1993] 2 SCR 689, Okeke v Minister for Justice [2006] IEHC 46 (Unrep, Peart J, 17/2/2006), O'Keeffe v An Bord Pleanala [1993] 1 IR 39 and O(A) and L(D) v Minister for Justice [2003] 1 IR 1 considered - Certiorari refused (2005/1166JR - Hedigan J - 19/7/2007) [2007] IEHC 299

O (H) v RAT

The applicant, who feared Female Genital Mutilation practices in Lagos, sought to quash the decision of the respondent on two grounds relating to findings made as to State protection and Internal Relocation. The applicant alleged that there had been errors of law made on the part of the respondent.

Held by Hedigan J. that no errors of law had occurred in respect of state protection findings. The decision of the respondent had been within its jurisdiction and the orders sought would be refused.

Reporter E.F

1 JUDGMENT of Mr. Justice Hedigan delivered on the 19th day of July , 2007.

2 This is an application for an order of certiorari quashing the decision of the respondent dated 6th October, 2005, served upon the applicant by letter dated 17th October, 2005. The applicant lived in Delta State in Nigeria and has a B.Sc qualification in Administration from Delta State University. She married her husband in September, 2004 and following an escorting ceremony which involved friends and family going to the husband's village for a celebration, she was apparently threatened the following day with a process of female genital mutilation (FGM). She claimed that four men tried to restrain her but that she fought them back. She claims one of them raped her. She apparently went to the police to complain but some members of the husband's family were apparently already in the police station, her version of events was contradicted and in any event the police paid no attention to her complaint. She states that she fled to the city of Benin by bus and was hospitalised for nine days. She travelled from there to Lagos to stay with a friend and while there she went to the local church. It was arranged by this church that she travel to Ireland. The church apparently raised the money for her in collections. She indicated that for the three month period that she stayed in Lagos, she remained indoors because she believed she would be recognised. She stated that she feared that she might be forced to return to her husband's village and that both she and her child with whom she was then pregnant would be forced to go through the process of FGM.

3 The grounds upon which this relief is sought are advanced under two headings;

4 (a) State protection;

5 (b) Internal relocation.

6 In relation to (a) the applicant submits that the Refugee Appeals Tribunal (the Tribunal) found:

7 (i) She had reported the incident to police on one occasion,

8 (ii) She had other opportunities in Benin, Kaduna or Lagos to report the incident to the police but did not do so,

9 (iii) She instead sought help from her church and with the financial and logistical assistance thereof left Nigeria and came to Ireland.

10 The Tribunal, she submits, at p. 6 of its decision found " the applicant reported the incident to the police on one occasion" it continued:-

"Thereafter, she had an opportunity of making a complaint in Benin, Kaduna or Lagos. She did not do so. Instead she sought help from her church and left Nigeria. Country of origin information indicates that:-"

11 'The Nigerian Police Force itself has several layers and branches that citizens dissatisfied with investigations and actions by one branch could request and get cases transferred to other branches.'

12 It is incumbent upon an applicant to explore all possible options with regard to seeking state protection before seeking the protection of another State."

13 This the applicant submits, is an erroneous statement of the law and is central to the adverse finding of the Tribunal. She submits that based upon this incorrect statement of the legal test, the Tribunal concluded that the applicant was obliged to exhaust every possible available remedy, which in her case meant:

14 (i) The police in Benin, Kaduna, Lagos and throughout the Nigerian Police Force in all its layers and branches; and

15 (ii) Women lawyers and non-governmental organisations.

16 She submits that this in effect requires her to participate in " a bottomless process of reporting to State and non-State bodies".

17 Under this heading, the applicant further submits that the Tribunal relied on selected passages from the country of origin information and relies on the judgment of Clarke J. in Idiakeua v. The Minister for Justice, Equality and Law Reform and The Refugee Appeals Tribunal (Unreported, High Court, 10th May, 2005):-

"It would appear that the true test is as to whether the country concerned provides reasonable protection in practical terms…"

18 It is further submitted that the Tribunal should have and did not give "appropriate weight to all such information" rather than accepting one set of such information and rejecting conflicting information. This conflicting information related in particular to the manifest inadequacies of the Nigerian Police.

19 In relation to (b), the applicant submits that the Tribunal did not conduct a proper "relevance or reasonableness" analysis when considering the issue of internal relocation. No reference is made to either the UNHCR Guidelines or the relevance or reasonableness analysis when considering the issue of internal relocation. She further submits that the Tribunal had a duty to properly consider or give appropriate weight to the country of origin information put before it, but did not do so.

20 The respondents submit that the applicant seeks to appeal the decision of the Tribunal rather than to judicially review it. They claim the applicant really is taking issue with the Tribunal's findings of fact and its application of the law to the facts of the case.

21 Dealing with the first...