A (O)[Nigeria] v Refugee Appeals Tribunal and Others
| Jurisdiction | Ireland |
| Judge | MS JUSTICE M. H. CLARK, |
| Judgment Date | 18 December 2013 |
| Neutral Citation | [2013] IEHC 605 |
| Court | High Court |
| Date | 18 December 2013 |
[2013] IEHC 605
THE HIGH COURT
Between:
REFUGEE ACT 1996 S13(6)(B)
IMMIGRATION ACT 2003 S7(H)
REFUGEE ACT 1996 S13
B (GO) v MIN FOR JUSTICE UNREP BIRMINGHAM (EX-TEMPORE) 3.6.2008 2008/2/390 2008 IEHC 229
MOYOSOLA v REFUGEE APPLICATIONS CMSR & ORS UNREP CLARKE 23.6.2005 2005/40/8261 2005 IEHC 218
IDIAKHEUA v MIN FOR JUSTICE & REFUGEE APPEALS TRIBUNAL UNREP CLARKE 10.5.2005 2005/31/6357 2005 IEHC 150
HAUGHEY, IN RE 1971 IR 217
U (MG) v REFUGEE APPEALS TRIBUNAL & ORS UNREP CLARK 22.1.2009 2009 IEHC 36
REFUGEE ACT 1996 S11
EUROPEAN COMMUNITIES (ELIGIBILITY FOR PROTECTION) REGS 2006 SI 518/2006 REG 9(2)
IMMIGRATION
Asylum
Telescoped judicial review application - Commissioner's negative recommendation - Appeal heard on document-only basis - Fear of female genital mutilation - Fear of imprisonment - Nigerian conviction under appeal - Political persecution - Documents omitted - Possibility of internal relocation - Fair procedures - New findings on appeal not put to applicant - Failure to give reasons - Obligation to consider all documents - Whether want of fair procedures - Whether findings reasonable - Whether documentation considered - Whether breach of fair procedures in omitting to express reasons for disregarding contents of documents - B(GO) v Minister for Justice, Equality and Law Reform [2008] IEHC 229, (Unrep, Birmingham J, 3/6/2008); Moyosola v Refugee Applications Commissioner [2005] IEHC 218, (Unrep, Clarke J, 23/6/2005); Idiakheua v Minister for Justice, Equality and Law Reform [2005] IEHC 150, (Unrep, Clarke J, 10/5/2005); Re Haughey [1971] IR 271 and U(MG) v Refugee Appeals Tribunal [2009] IEHC 36, (Unrep, Clarke J, 22/1/2009) considered - Refugee Act 1996 (No 17), s 13(6)(b) - Immigration Act 2003 (No 26), s 7(h) - Application refused (2009/356JR - Clark J - 18/12/2013) [2013] IEHC 605
A(O) v Refugee Appeals Tribunal
1. The applicant is an adult Nigerian woman who travelled to Ireland in October 2005. Her husband either joined her or travelled at the same time. While they claimed asylum separately and were heard by different officers in the Office of the Refugee Applications Commissioner (ORAC), their factual claims were closely connected. This judicial review is confined to the wife's claim. She claimed asylum on the basis of two separate fears:- her fear of female genital mutilation (FGM) and her fear of being imprisoned by the traditional courts in Imo State following her conviction for a breach of the traditional laws when she refused to submit to genital cutting or FGM and also that her husband's political involvement and activities with the Movement for the Actualization of the Sovereign State of Biafra (MASSOB) would be imputed to her.
2. The claim was found not to be credible by the Commissioner and a Section 13(6) finding was made which had the effect of her appeal to the respondent Tribunal being conducted on a documents-only basis. The Commissioner's negative recommendation was affirmed by the Tribunal and that decision is the focus of these proceedings. A telescoped hearing took place on the 16 th April, 2013, at which the applicant was represented by Mr Robert Haughton S.C. and Mr Garry O'Halloran B.L. Ms Fiona O'Sullivan B.L. appeared for the respondent Tribunal.
3. The claim made by the applicant is that she was born in Imo State in Nigeria in 1981. She is educated to third level standard and has a law degree from a university in Enugu State. This was followed by three months of work experience in chambers and she describes herself as a barrister. After she married she continued her studies but went to live in her husband's village in Imo State, where it was the cultural norm for women to undergo genital cutting. She herself was aware of the health dangers associated with the procedure and dreaded the cutting and had managed to escape the procedure up to the time she married and went to live in her husband's village. She explained that as her parents were dead, they were not around to drag her to the procedure as they may have done. Her uncle was somewhat half hearted about the procedure as one of his daughters had a bad experience. She had thus successfully resisted pressure from her own family members.
4. In her husband's village, the women's association were strongly supportive of Igbo traditions including female cutting. In the beginning the issue did not arise as she was still attending university, but when she was invited to join the group they enquired as to her circumcision status and on learning that she had not been circumcised they and her husband's relatives began to put pressure on her to have the procedure carried out. When she became pregnant the pressure increased to such an extent that she was locked in the family compound for a number of days and then tied up in the village square by the women who seemed prepared to forcibly carry out the procedure.
5. Her struggling to resist caused them to give up as they feared causing her injury. When asked if abduction and assault were not illegal, she said that federal law was quite different from what goes on in the community. When it comes to customs and traditions, the people are the voice and the elders prevail over the police. She then went to her own village but her husband's family members came to fetch her back and she and her husband, who also disapproved of FGM, were taken by the police to be dealt with by the customary court for their refusal to follow traditions.
6. Their case was dealt with by Professor Peter who sentenced them to five years imprisonment for non-compliance with local tradition. They were not given access to lawyers and were detained in separate cells. The applicant said that they were not surprised to be convicted and did not expect justice as the elders usually win their cases. However, two weeks into the sentence, she and her husband were released from prison into the custody of a reverend who they did not know but who assisted them to travel to Ireland and then accompanied them here and paid all their costs.
7. The second part of her claim related to her husband's asserted fear of persecution because he was a member of MASSOB. While she stated that she personally had no interest in politics and strongly disapproved of his activities in MASSOB, she feared that she would be arrested if returned to Nigeria.
8. The Commissioner found that the applicant's asserted fear of FGM was unsupported by numerous well-known country of origin information (COI) reports on the reducing prevalence of the practice especially in educated women and the various forms of advice and protection available to those who opposed the custom. What is important to this case is that the Commissioner was unable to find any record of any occasion where a prison sentence had been imposed by a customary court or any record of a five year sentence being imposed on a couple who were opposed to FGM. While some inconsistencies between the spouses as to their evidence on the date of their marriage and other matters were identified, these were of relatively minor consequence when set against the major finding that the claim was simply not credible. The documents presented in support of their claim, including a 'Certificate of Appreciation' from MASSOB dated June, 2003, were found to be unhelpful.
9. Since arriving in the State, the applicant and her husband have had a daughter who was born in March, 2006 and who appears to be the subject of a separate claim.
10. As previously mentioned, the appeal was conducted without an oral hearing since the Commissioner made a finding under Section 13(6) (b) of the Refugee Act 1996, as inserted by Section 7(h) of the Immigration Act 2003, i.e. that "the applicant made statements or provided information in support of the application of such a false, contradictory, misleading or incomplete nature as to lead to the conclusion that the application is manifestly unfounded." A previous decision made by the Tribunal in February, 2008, was quashed after judicial review proceedings challenging the decision were compromised and the appeal was remitted for fresh consideration.
11. A number of documents which had not been before the Commissioner were submitted to the Tribunal in the course of the appeal. Of relevance was a copy of a judgment of the High Court of Orlu in Imo State dated the 19 th December, 2005, 'upholding the judgment of the lower court of the offences of insubordination and refusal to perform the cultural rite of female circumcision of the second applicant / defendant which led to communal crisis' and a copy of the judgment of the same judge of the High Court of Orlu dated the 20 October, 2005, sentencing the applicant's husband to life imprisonment for treason due to his membership of MASSOB. Both documents were stamped 'certified true copy -13 Nov 2006'. There was also a letter and a declaration from the applicant's legal representative, Mr U. in Nigeria, stating that the documents furnished to the applicant's husband were certified true copies of the original judgments of the High Court of Imo State.
12. It is instructive at this stage to note that the undated appeal submissions prepared by the Refugee Legal Service (RLS) shortly after the decision from the Commissioner issued on the 16 th November, 2005, make no mention of these documents or of any appeal to the decision of the customary court. Similarly, further appeal submissions prepared by Daly Lynch Crowe and Morris (the...
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