NNM v The International Protection Appeals Tribunal

• Jurisdiction: Ireland
• Judge: Ms Justice Burns
• Judgment Date: 18 November 2020
• Neutral Citation: [2020] IEHC 590
• Docket Number: RECORD NO.: 2019/665JR
• Court: High Court
• Date: 18 November 2020

IN THE MATTER OF SECTION 5 OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, AS AMENDED

AND

THE INTERNATIONAL PROTECTION ACT 2015

BETWEEN:

NNM

APPLICANT

AND

THE INTERNATIONAL PROTECTION APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

[2020] IEHC 590

Burns

RECORD NO.: 2019/665JR

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Ms Justice Burns delivered on the 18th day of November, 2020.

General

1 The Applicant is a citizen of South Africa and was born on 29 November 10998. She left South Africa on 6 March 2018 and arrived in the State on 7 March 2018, whereupon she applied for international protection. The Applicant claimed protection on the grounds that she was the victim of gender-based violence and threats, arising from her efforts to avoid an arranged marriage which her father was forcing her to partake in. It was asserted that her father was a local chief, and that he had arranged this marriage to the head of another family, who was much older than her. The purpose of the arranged marriage was to settle a dispute between the families. She left South Africa to avoid this forced marriage and claimed that she could not return as she would be subjected to severe punishment from her father for having run away. This was the second occasion that she had run away to avoid the proposed marriage.

2 The Applicant's claim for International Protection was refused at first instance by the International Protection Officer. She appealed that refusal to the First Respondent who also refused her application on 9 July 2019.

3 The First Respondent upheld the Applicant's credibility in relation to her protection claim. It accepted that the Applicant “was chosen to partake in an arranged or forced marriage at the behest of her father who was a tribal leader, that she was subjected to an examination to establish her virginity and that she was subject to physical violence by her father when she expressed her unwillingness to partake in such a union”. The First Respondent also found that there was not adequate state protection in South Africa to assist the Applicant in her circumstances. However, her claim for protection was refused as the First Respondent reached the conclusion that internal relocation in South Africa was an option available to the Applicant.

4 Leave to bring Judicial Review proceedings seeking an order of certiorari quashing the decision of the First Respondent was granted by Humphreys J on 21 October 2019.

Grounds for Judicial Review

5 The grounds of the Applicant's claim relate solely to the First Respondent's decision that internal relocation is available to the Applicant. It is submitted that the First Respondent erred in law in coming to this conclusion; that its decision is unreasonable and irrational; and, that it failed to give adequate reasons for this decision.

Internal Relocation – The Law

6 Section 32 of the International Protection Act 2015 (hereinafter referred to as “the 2015 Act”) provides:-

“(1) An international protection officer may recommend or, as the case may be, the Tribunal may decide, that an Applicant is not in need of international protection if in a part of the country of origin the Applicant—

(a) has—

(i) no well-founded fear of being persecuted or is not at real risk of suffering serious harm, or

(ii) access to protection against persecution or serious harm, and

(b) can safely and legally travel to and gain admittance to that part of the country and can reasonably be expected to settle there.

(2) An international protection officer or, as the case may be, the Tribunal, in examining whether an Applicant has a well-founded fear of being persecuted or is at real risk of suffering serious harm, or has access to protection against persecution or serious harm in a part of the country of origin in accordance with subsection (1), shall have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the Applicant in accordance with section 28.

(3) An international protection officer or, as the case may be, the Tribunal, in complying with this section, shall ensure that precise and up-to-date information is obtained from relevant sources, such as the High Commissioner and the European Asylum Support Office.”

7 In KD (Nigeria) v Refugee Appeals Tribunal[2013] 1 IR 448, Harding Clarke J., formulised the relevant legal principles applicable to a decision of whether internal relocation is available to an Applicant. At paragraph 28 of its judgment, the Court stated:-

“(4) Localised risk: where it is accepted that an Applicant has a well founded fear of persecution for Convention reasons but that fear is localised and confined to a particular area, it is relevant to consider the possibility of internal relocation as an alternative to refugee status. In such cases, reg. 7(1) of the Protection Regulation requires the protection decision maker to identify (if only in general terms) a place or area within the country of origin where the risk of persecution does not exist and where the Applicant might reasonably be expected to stay. Security from persecution or serious harm and meaningful state protection in the proposed area of relocation are key.

(5) Where there is a well-founded fear of persecution and a general area has been identified as an alternative to refugee status then the protection decision maker must pose two questions: (i) is there a risk of persecution/serious harm in the proposed area of relocation? If not, (ii) would it be reasonable to expect the Applicant to stay in that place?

(6) Absence of risk: where the persecution feared is of a general or public character, such as a religious or tribal conflict or oppression by a political regime which controls a particular region or city, it will be necessary to consult appropriate up-to-date COI to determine whether the risk of persecution or harm is genuinely absent from the proposed area of relocation. In such cases the decision maker must engage in a detailed and careful inquiry as to the general circumstances prevailing on the ground in the proposed area, in accordance with regulation 7(2).

(7) If the persecution feared emanates from private or domestic actors, such as a threat from a particular family member, and a Convention nexus has been established, the protection decision maker must make an objective, common sense appraisal of the reality of whether the risk faced by the Applicant could be avoided by moving elsewhere, having regard to the Applicant's own evidence.

(8) Reasonableness: It is not enough for the protection decision maker to determine that the risk of persecution is absent from the proposed area of relocation. He or she must go on to consider whether it would be reasonable to expect the Applicant to stay in that place, having regard to his or her personal circumstances and the general conditions prevailing on the ground, in accordance with reg. 7(2) of the Protection Regulations. The reasonableness assessment is not concerned with assertions such as “I won't know any one”, but rather with matters of substance such as whether the Applicant is old, infirm, ill, has many small children or is without family support and other real issues.

(9) The United Nations Rights Commissioner for Refugees' Guidelines on International Protection: Internal Flight or Relocation Alternative (2003) (“the UNHCR Guidelines”) indicate that consideration should be accorded to whether the Applicant could lead a relatively normal life in the selected place of relocation without undue hardship, in the context of the country concerned. Unless there is objective evidence that the general circumstances prevailing in the proposed area are harsh - for example if the proposed area is the site of a conflict or a humanitarian crisis - there is in general no obligation to seek out a specific town or detailed information on economic and social conditions in the proposed location. However, if a specific objection...