M (WM) v Refugee Appeals Tribunal and Another

JurisdictionIreland
JudgeMr. Justice Cooke
Judgment Date11 November 2009
Neutral Citation[2009] IEHC 492
CourtHigh Court
Date11 November 2009

[2009] IEHC 492

THE HIGH COURT

[No. 96 J.R./2009]
M (W M) v Refugee Appeals Tribunal & Min for Justice
BETWEEN/
W. M. M.
APPLICANT

AND

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

REFUGEE ACT 1996 S13

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

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

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)

IMMIGRATION LAW

Asylum

Fear of persecution - Availability of state protection - Internal relocation - Absence of investigation into conditions prevailing in part of country of origin to which relocation proposed - Infringement of right to fair procedures - Failure to identify specific relocation site - Whether conclusion on availability of internal relocation sustainable - Validity of conclusion on state protection - Whether claimed risk of persecution could be avoided by internal relocation - Whether tribunal erred in law and applied wrong legal test - Country of origin information - European Communities (Eligibility for Protection) Regulations 2006 (SI /2006), reg 7(2) - Convention on the Status of Refugees 1951 - Leave granted (2009/96JR - Cooke J - 11/11/2009) [2009] IEHC 492

MM(W) v Refugee Appeals Tribunal

Facts in its decision, the respondent found that, whilst the applicant's account was generally credible, the availability of state protection and internal relocation within Nigeria was open to her to avoid the persecution complained of and she was not, accordingly, entitled to the benefit of international asylum. It was contended by the applicant that, whilst Port Harcourt was identified by the respondent as a potential area of internal relocation in the decision, that location was never put to the applicant at the appeal hearing, thereby breaching regulation 7(2) of the European Communities (Eligibility for Protection) Regulations 2006. It was also contended that the respondent had failed to consider previous Tribunal decisions in relation to the issue of state protection.

Held by Mr. Justice Cooke in granting the applicant leave to seek judicial review that the respondent had failed to have regard to the general conditions prevailing in the part of the country of origin to which internal relocation was proposed which required identifying a specific locality and carrying out appropriate inquiries to verify that the particular persecution would not be encountered there and that it was a place to which the claimant could be expected to move without undue hardship, as required by regulation 7(2) of the Regulations of 2006. As well as being in breach of regulation 7, it also breached the requirements of fair procedures.

That a Tribunal decision, as such, would not be unlawful by reference only to a discrepancy when compared with previous decisions in similar cases. Where availability of state protection was in issue, it was the particular circumstances of the individual applicant that determined the issue. However, in concluding that the applicant ought not to be declared a refugee because state protection might reasonably be forthcoming, the respondent erred in law in applying a wrong legal test and failing to apply regulation 5(2) of the Regulations of 2006 correctly.

Reporter: P.C.

1

1. The applicant is a native of Nigeria, now twenty-four years of age. She arrived in the State in October, 2006 and claimed asylum. She claimed to have suffered appalling sexual abuse, including rape, from a young age by her father and his associates. She has twice been made pregnant and had abortions arranged for her by her mother, the last in January, 2006. She fears that if returned to Nigeria she will again suffer the same persecution.

2

2. In a section 13 report, dated 16th October, 2006, the Commissioner found the personal history she recounted credible and her graphic account of regular abuse by her father's group of paedophiles was described as "chilling". The report nevertheless recommended that she should not be declared a refugee because "the applicant stated clearly that the only reason why she left Nigeria was because of domestic and sexual abuse by her father. Although this applicant presented credible testimony, this is notconsidered to amount to persecution, as defined by the Geneva Convention 1951. It is clear that her motivation for coming to Ireland was for domestic reasons and therefore there appears to be no section to link with the applicant's claim for asylum".

3

3. The applicant's appeal to the Refugee Appeals Tribunal was ruled upon in a decision dated 9th December, 2008 (the Contested Decision) which affirmed the negative recommendation of the Commissioner. The applicant now seeks leave to apply for relief by way of judicial review to quash that decision on the basis of something in excess of 25 grounds set out in a proposed statement of grounds.

4

4. In the Contested Decision the personal history given by the applicant as the basis for her claim to fear persecution is accepted as credible. The rejection of the claim is based on two conclusions namely, that state protection against the persecution she fears would be available if necessary and, secondly, that she could avoid such persecution by relocating internally in Nigeria.

5

5. In arriving at the former conclusion the decision quotes extensively from country of origin information on the availability of police protection for victims of sexual abuse, rape and domestic violence in Nigeria. The decision notes that according to this information, while rape is a crime punishable by life imprisonment, it does not extend to marital rape and that sexual harassment is not outlawed. Further, violence within a family is not treated seriously by the police and few rapes are reported to the police for that reason. The Tribunal Member concludes:-

"The applicant fears returning to Nigeria as she fears she would not be able to access protection and she states that her father and his friends may find her. The applicant is now an adult and...

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