O.J. [Nigeria] v Refugee Appeals Tribunal
| Jurisdiction | Ireland |
| Judge | Ms. Justice Stewart |
| Judgment Date | 15 July 2015 |
| Neutral Citation | [2015] IEHC 470 |
| Docket Number | [2011 No 443 J.R] |
| Court | High Court |
| Date | 15 July 2015 |
[2015] IEHC 470
[2011 No 443 J.R]
THE HIGH COURT
JUDICIAL REVIEW
Asylum, Immigration & Nationality – Appeal against the decision of Refugee Appeals Tribunal – S. 13 (1) of the Refugee Act 1996 – Refusal of asylum – Fear of persecution – European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) – State protection – Internal relocation
Facts: The applicant sought an order of certiorari for quashing the decision of the first named respondent. The applicant contended that she had well-founded fear of persecution in the country of origin after having been kidnapped and raped therein. The respondent contended that it had found that state protection would be available to the applicant as supported by documents.
Ms. Justice Stewart granted an order of certiorari to the applicant. The Court held that while making a protection decision, the facts relating to country of origin information, personal circumstances of the applicant and real risk of harm if returned to the country of origin would need to be considered as mentioned under European Communities (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006). The Court held that the first named respondent had erred in law as it failed to give reasons for its preference to base its decision on certain country of origin information as opposed to other. The Court observed that the first named respondent did not give explanation for departing from the observation of the Offices of the Refugee Applications Commissioner that the internal relocation would not be feasible for the applicant. The Court cited the principles set out in K.D. [Nigeria] v. Refugee Appeals Tribunal & anor. [2013] IEHC 481, that an inquiry into internal relocation was appropriate only where a well-founded fear of persecution for a Convention reason had been established and that fear was localised and not where there was no fear of persecution or the persecution feared had no Convention nexus.
This is telescoped hearing for judicial review seeking certiorari to quash a decision of the Refugee Appeals Tribunal dated 3rd May, 2011, and remitting the applicant's appeal for de novo consideration by a different tribunal member.
The applicant is a Nigerian national born on 6th August, 1986. She states that she arrived in the State around 1st December, 2010, after having been kidnapped in Edo state, Nigeria and trafficked to Ireland in a container ship. The applicant states that she was imprisoned in a house in Limerick and repeatedly raped, eventually escaping after two weeks, aided by two Nigerian women. She was arrested in Limerick on 17th December, 2010, having been found with no identity documentation, and then made an application for asylum on 22nd December, 2010. She was directed to attend the Offices of the Refugee Applications Commissioner (ORAC) on 23rd December, 2010.
The applicant was interviewed by an ORAC officer on 4th February, 2011, and notification was sent by the commissioner to the applicant stating that the office would not be making a recommendation for a declaration of refugee status (dated 18th February, 2011). This decision was appealed to the Refugee Appeals Tribunal by way of notice of appeal dated 18th March, 2011. An oral hearing was held in respect of the applicant's appeal on 28th April, 2011.
By decision dated 3rd May, 2011, the tribunal affirmed the recommendation of the ORAC, that the applicant not be declared a refugee. The decision sets out the factual background to the applicant's case and then proceeds to set out the general law in relation to refugee status determination. Subsequently, beginning at p.16 of the decision, under the heading “analysis of the applicant's claim”, the tribunal member scrutinises the applicant's claim over the following nine pages. The tribunal member first states that the applicant, as a victim of trafficking, could satisfy the requirement to belong to a particular social group. She then observes that belonging to a particular social group is not sufficient to warrant international protection. Next, the tribunal member states, ‘there must be serious harm and a failure of State protection’.
The first finding made by the tribunal member is in relation to the availability of state protection. The tribunal member notes that this protection does not have to be ‘perfect protection’ and relies on the fact that Nigeria is designated by the United States' Department of State Trafficking Report 2010 as a tier one country. The designation system is defined as follows:
‘Tier 1
Countries whose governments fully comply with the Trafficking Victims Protection Act (TVPA) minimum standards
Tier 2
Countries whose governments do not fully comply with the TVPA minimum standards, but are making significant efforts to bring themselves into compliance with those standards.
Tier 2 watch list
Countries whose governments do not fully comply with the TVPA minimum standards, but are making significant efforts to bring themselves into compliance with those standards, and: a) the absolute number of victims of severe forms of trafficking is very significant or is significantly increasing; b) there is a failure to provide evidence of increasing efforts to combat severe forms of trafficking in persons from the previous year; or, c) the determination that a country is making significant efforts to bring themselves into compliance with minimum standards was based on commitments by the country to take additional future steps over the next year.
Tier 3
Countries whose governments do not fully comply with the minimum standards and are not making significant efforts to do so.’
The tribunal member further details efforts made by the Nigerian federal government and notes that there has been sustained progress in combating trafficking, citing convictions of traffickers and care provided for victims as well as legislation that has been enacted to combat trafficking in human beings.
The tribunal member continues at p.18:
‘Victims could theoretically seek redress through civil suits against traffickers, or claim funds from a Victims' Trust Fund set up in 2009 through which assets confiscated from traffickers are transferred to victims. Traffickers are prosecuted and convicted in Nigeria and therefore were the Applicant to fear any threats from her traffickers she could seek the assistance of the authorities.’
The tribunal member goes on to summarise: ‘Sustained efforts are being made by the authorities to combat trafficking and the general thrust of the country of origin information on file is to the effect that state protection against traffickers is available in Nigeria’. Lastly, on the point of state protection, the tribunal member recites regulation 2 of European Communities (Eligibility for Protection) Regulations 2006 ( S.I. no. 518 of 2006), which states, inter alia:
‘“protection against persecution or serious harm” shall be regarded as being generally provided where reasonable steps are taken by a state or parties or organisations, including international organisations, controlling a state or a substantial part of the territory of that state to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution and punishment of acts constituting persecution or serious harm, where the applicant has access to such protection’
The tribunal member concludes: ‘I am satisfied that the Nigerian authorities would be willing and able to protect the Applicant against her traffickers were she to return to Nigeria’.
The second finding made by the tribunal member, resulting in the negative recommendation, was regarding the feasibility of internal relocation. The tribunal member notes that there is freedom of movement, protected by the Nigerian constitution and continues over the following paragraphs, at p.23 of the decision, relying on country of origin information, to state ‘it is possible for any adult woman to relocate and look for jobs to sustain themselves’. Relying upon regulation 7 of European Communities (Eligibility for Protection) Regulations 2006 ( S.I. no. 518 of 2006), the tribunal member finds that: ‘internal relocation is a complete answer to a claim for refugee status…’ An urban area such as Abuja is suggested as a potential location for the applicant.
In assessing the facts and circumstance pertinent to each case, decision-makers are obliged to take into consideration the following factors, which are set out in the RAT decision and are worth reciting at this juncture.
‘Assessment of facts and circumstances
5. (1) The following matters shall be taken into account by a protection decision-maker for the purposes of making a protection decision:
a) all relevant facts as they relate to the country of origin at the time of taking a decision on the application for protection, including laws and regulations of the country of origin and the manner in which they are applied;
b) the relevant statements and documentation presented by the protection applicant including information on whether he or she has been or may be subject to persecution or serious harm;
c) the individual position and personal circumstances of the protection applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the 5 applicant has been or could be exposed would amount to persecution or serious harm;
d) whether the protection applicant's...
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