K.O.O. v Minister for Justice, Equality and Law Reform and Another

• Jurisdiction: Ireland
• Judge: MR. JUSTICE HEDIGAN
• Judgment Date: 15 October 2008
• Neutral Citation: [2008] IEHC 311
• Court: High Court
• Date: 15 October 2008

[2008] IEHC 311

THE HIGH COURT

[1243 JR/2006]

O (K O) v Min for Justice & Refugee Appeals Tribunal

BETWEEN

K. O. O.

APPLICANT

AND

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

RESPONDENTS

IMOH & OKORO v REFUGEE APPEALS TRIBUNAL (BRENNAN) & MIN FOR JUSTICE UNREP HIGH CLARKE 24.6.2005 2005/31/6393

T (AM) v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE UNREP HIGH FINLAY-GEOGHEGAN 14.5.2004 2004/49/11175

B (GO) v MIN FOR JUSTICE UNREP HIGH BIRMINGHAM 3.6.2008 2008 IEHC 229

O (H) v REFUGEE APPEALS TRIBUNAL & ANOR UNREP HIGH HEDIGAN 19.7.2007 2007/45/9473

Z v MIN FOR JUSTICE & ORS 2002 2 IR 135

CANADA (AG) v WARD 1993 2 SCR 689

UNHCR HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS 2ED 1992

KVARATSKHELIA v REFUGEE APPEALS TRIBUNAL & MIN FOR JUSTICE 2006 3 IR 368

Abstract:

Immigration - Asylum - Judicial review - Leave - Substantial grounds - Nigeria - Error of fact - Fair procedures - Error of law - Female Genital Mutilation - Whether the court should have granted leave

Facts: The applicant, a national of Nigeria, sought leave for review of a decision of the RAT refusing his application for refugee status. The applicant claimed that he was in fear of being killed by reason of his objection to his daughter being subjected to female genital mutilation. The applicant contended inter alia that the respondent had erred in fact as to country of origin information, had failed to afford him fair procedures and had erred in law as to the application of state protection.

Held by Hedigan J. that the applicant had not established substantial grounds and that leave would be refused.

Reporter: E.F.

1 MR. JUSTICE HEDIGAN, delivered on the 15th day of October, 2008.

2 1. The applicant is a national of Nigeria, He is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal ("RAT") to affirm the earlier decision of the Office of the Refugee Applications Commissioner ("ORAC") that he should not be declared a refugee.

Background

3 2. The applicant claims to fear being killed by members of his tribe because of his objection to his daughter being subjected to female genital circumcision (FGM). He and his wife lived in a village in Delta State. When their first-born daughter was just one month old, she was subjected to FGM by a member of their tribe and she developed serious infections. When his wife became pregnant with a second daughter, they decided not to allow her to be subjected to FGM. Close to the due-date, in early 2004, the couple moved to Port Harcourt, but their community sent people to look for them. The applicant's wife departed for Ireland, where she gave birth to their second daughter. Their first-born daughter remained with the applicant's mother in Nigeria.

4 3. The applicant remained in Port Harcourt for some two years after his wife's departure. In April, 2006, however, he encountered a member of his community in Port Harcourt. That evening, members of his community destroyed the house where he was staying, when he was out. He did not report this event or his fears to the police as he believed they would not intervene. Instead, he arranged to leave Nigeria.

5 4. The applicant arrived in the State on 7 ^th May, 2006 and applied for asylum in the ordinary way. He was unsuccessful before ORAC and he appealed to the RAT. An RAT oral hearing took place and the Tribunal Member rejected the appeal by decision dated 3 ^rd October, 2006. She does not appear to have doubted the applicant's credibility; rather, her decision to reject the appeal was grounded in the finding that State protection might reasonably have been forthcoming in Nigeria.

THE SUBMISSIONS

6 5. The applicant's complaints in respect of the decision are as follows:-

7 a a. Error of Fact: The ban on FGM in the Delta State;

8 b b. Breach of Fair Procedures: Treatment of country of origin information;

9 c c. Error of law as to state protection.

(a) The Ban on FGM in Delta State

10 6. At the RAT oral hearing, it was put to the applicant that FGM is banned in Delta State. That such a ban exists was twice reiterated in the RAT decision. The applicant submits that the Tribunal Member erred in this regard as it is said that the country of origin information relied on does not list Delta State as one of the states that bans FGM. It is contended that the fact that the Tribunal Member repeatedly adverted to the apparent ban means that it had considerable significance in her mind. It is suggested that this was, therefore, a considerable error of fact that leaves the RAT decision open to review. Reliance is placed on the decisions of Imoh v The RefugeeAppeals Tribunal [2005] IEHC 220 and Traore v The Refugee Appeals Tribunal [2004] IEHC 606.

11 7. The respondents argue that the country of origin information does not definitely state that FGM is not banned in Delta State but rather, it states that a number of States have banned the practice and a number of other States are in the process of enacting legislation. Also, the respondents complain that the applicant did not specify the nature of the alleged error of fact until the hearing, having made only general reference to an error of fact in his Statement of Grounds.

(b) Treatment of Country of Origin Information

12 8. The applicant complains that the country of origin information relied on was largely irrelevant as it focuses on the availability of police protection from FGM practices instead of the applicant's fear of being killed by members of his community. In this regard, the respondents submit that the issue of FGM and the applicant's fears are intrinsically linked and could not be considered without reference to one another. The respondents argue that the Tribunal Member was therefore correct to deal with the issue of FGM as well as dealing with the applicant's fears that he might be killed.

13 9. The applicant also submits that the Tribunal Member engaged in impermissible use of an Operational Guidance Note (OGN) of the UK Home Office of December, 2005. It is contended that the Tribunal Member erred by failing to have regard to the introduction to the OGN, which states that the document "must be read in conjunction with the October 2005 COI Service Nigeria Country Report… and any COI Service Nigeria Bulletins." The applicant submits that the often-cited COI Service Nigeria Country Report of October 2005 provides clear evidence that state protection may not have been forthcoming. That Report states that the police force in Nigeria is poorly trained, ill equipped and poorly remunerated, that corruption is rampant, and that the police force is ill-equipped to address the rising levels of crime.

14 10. The respondents complain that the question of whether or not the OGN should have been considered was not pleaded in the Statement of Grounds. In addition, it is submitted that there is no legitimacy to the applicant's complaint: it is said that the OGN objectively reflects the situation in the country of origin, and that it was open to the Tribunal Member to consult it. The respondents rely on the decision of ...