M (WM) v Refugee Appeals Tribunal & Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: MS. JUSTICE M. CLARK
• Judgment Date: 23 April 2010
• Neutral Citation: [2010] IEHC 171
• Date: 23 April 2010

[2010] IEHC 171

THE HIGH COURT

[No. 96 J.R./2009]

M (W M) v Refugee Appeals Tribunal (O'Gorman) & Min for Justice

JUDICIAL REVIEW

BETWEEN

W. M. M.

APPLICANT

AND

REFUGEE APPEALS TRIBUNAL (MICHELLE O'GORMAN) AND MINISTER FOR EQUALITY, JUSTICE AND LAW REFORM

RESPONDENTS

CONVENTION ON THE STATUS OF REFUGEES & STATELESS PERSONS 1951 (GENEVA CONVENTION)

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

EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 5(2)

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

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

T (MS) & T (J)(A MINOR) v MIN FOR JUSTICE UNREP COOKE 4.12.2009 2009 IEHC 529

N (FR) & ORS v MIN FOR JUSTICE & ORS 2009 1 IR 89 2008/45/9787 2008 IEHC 107

EEC DIR 2004/83 ART 4(4)

REFUGEE ACT 1996 S16(17)

REFUGEE ACT 1996 S13

PAMBA v REFUGEE APPEALS TRIBUNAL & ANOR UNREP COOKE 19.5.2009 (EX TEMPORE)

IMMIGRATION

Asylum

Fear of persecution - Past persecution - Relocation - Credibility - Fair procedures - Whether State protection available - Whether effective legal system in place - Whether well-founded fear of persecution in future - Whether Tribunal had regard to past persecution - Whether applicant could ascertain from decision why appeal failed - Pamba v Refugee Appeals Tribunal (Unrep, HC, Cooke J, 19/5/2009) followed - Horvath v Secretary of State for the Home Department [2001] 1 AC 489 applied - T(MS) v Refugee Appeals Tribunal [2009] IEHC 529 and N(Fr) v Minister for Justice, Equality and Law Reform [2008] IEHC 107 considered - Refugee Act 1996 (No 17), ss 13 and 16 - Council Directive 2004/83/EC, art 2 - European Communities (Eligibility for Protection) Regulations 2006 (SI 518/2006), regs 2 and 5(2) - UNHCR Guidelines on International Protection No 4 "Internal Flight or Relocation Alternative" 2003 - Relief granted (2009/96JR - Clark J - 23/4/2010) [2010] IEHC 171

M(WM) v Refugee Appeals Tribunal

Facts: The applicant sought to quash a decision of the respondent Tribunal which had refused the applicant the grant of refugee status. The applicant was found by the respondent to have given graphic, credible details about violence and abuse suffered in Nigeria at the hands of her father. The Tribunal concluded that it was not persecution within the meaning of the Geneva Convention. The applicant was critical of the assessment by the respondent of state protection and contended inter alia that the respondent should have gone on to assess whether there were compelling reasons arising out of past persecution which would render her eligible for refugee status pursuant to Regulation 5(2) Protection Regulations (European Communities (Eligibility for Protection) Regulations, 2006.

Held by Clark J. that the Court was satisfied that the applicant was entitled to an order of certiorari quashing the recommendation of the Tribunal and an order of mandamus remitting the appeal to the Tribunal for a fresh consideration by a different Tribunal member. It was valid for the applicant to argue that the tribunal Member ought to have had regard to her past persecution when considering whether or not to affirm the recommendation of the Commissioner. It was unclear to the Court whether the applicant was found fully credible or whether past persecution or serious harm had been established. The past had been left aside.

Reporter: E.F.

1 JUDGMENT OF MS. JUSTICE M. CLARK, delivered on the 23rd day of April 2010

2 1. This is the substantive hearing of the action to quash the decision of the Refugee Tribunal Member, Ms. Michelle O'Gorman, of the 9 ^th November, 2008 which affirmed the recommendation of the Refugee Applications Commissioner that the applicant should not be granted refugee status.

3 2. The unusual feature of this case is that the applicant, who is a young woman with limited education from Lagos in Nigeria, was found by the Commissioner to have given " graphic, credible details" of the violence and abuse she suffered up to the age of 19 in Nigeria. She recited a harrowing story of sexual and physical abuse by her father and his associates, reaching back into her early childhood. The Commissioner found that her description of the abuse that she suffered was " chilling" and that she did not exaggerate the abuse when she had an opportunity to do so. The applicant recited that her domineering father also sexually and physically abused and bullied his wife, the applicant's mother. The applicant's only sibling quit the family home at 16 and has not been in touch since. The frequent rapes by her father caused the applicant to become pregnant on two occasions. On both occasions she was taken by her supportive mother to have an abortion carried out. The applicant's mother also took her to her mother's village some distance away but two weeks later her husband sought them out, beat them and forced them to return with him. They did not at any stage complain to the police of his behaviour and were unaware of the existence of any women's NGOs who could provide protection and assistance to make a complaint. Eventually, the applicant's mother sought assistance from their local pastor who advised that the daughter should try to leave the country. The mother saved for six months to provide the money for a person recommended by the pastor to bring the applicant to Ireland. This person brought the applicant to Ireland and brought her to the Commissioner's offices.

4 3. The applicant failed to be recommended by the Commissioner as a person to whom refugee status should be granted because it was found that the domestic and sexual abuse she suffered at the hands of her father was found not to amount to persecution " as defined by the Geneva Convention 1951". The issues of internal relocation and state protection were not addressed at that stage. The Commissioner's recommendation was appealed to the Refugee Appeals Tribunal. A first decision on appeal was challenged and subsequently quashed by agreement between the parties and a second oral appeal hearing took place. The Commissioner's negative recommendation was affirmed; that decision is now challenged.

5 4. The question of a Convention nexus was not addressed in the Tribunal decision. However, the appeal was not successful as the Tribunal Member found that state protection, though imperfect, might reasonably be forthcoming were the applicant to seek it and that internal relocation to a large city such as Port Harcourt would be a possibility. It was stated that the applicant fears her father and his friends and that she may not be able to accept that protection is available but that were she to be returned to Nigeria, "it would appear that protection might reasonable be forthcoming were the Applicant to seek it and a variety of NGOs and women's organisations could assist her seek such protection." When reading the impugned decision, the applicant's personal circumstances can only be gleaned from different parts of the analysis rather than in a specific credibility assessment and finding. Those findings as to personal circumstances are that the applicant is no longer a child; she is a psychologically vulnerable person and will be unable to conceive without IVF because of fallopian tube damage. She did not report the abuse she suffered but rape is a crime punishable by life imprisonment in Nigeria.

Issues

6 5. The applicant challenges the validity of the Tribunal Member's decision and has obtained leave from Cooke J. to argue that:-

7 a a. In concluding that the applicant was not a refugee because her claimed risk of persecution could be avoided by internal relocation in Nigeria, the Tribunal erred in law and in complying with the requirements of Regulation 7 of the European Communities (Eligibility for Protection) Regulations 2006 and with the duty to adhere to fair procedures by:

8 i i. Failing to identify a part of the country as a site for relocation and to conduct the necessary enquiries to verify whether it was a place where the applicant could be reasonably expected to stay without fear of being persecuted or real risk of suffering serious harm;

9 ii ii. Identifying Port Harcourt for that purpose only after...