High Court dismisses judicial review claim against Refugee Appeals Tribunal for lack of evidence on state protection in Nigeria.

Neutral Citation Number: [2006] IEHC 23

THE HIGH COURT

JUDICIAL REVIEW

[2004 No. 887 JR]

BETWEEN

PRINCE URUEMUSODE EVUARHERHE

APPLICANT

AND

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

RESPONDENTS

Judgment of Mr. Justice Clarke delivered the 26th January, 2006.

1. Introduction

1.1 In this case the applicant (“Prince Evuarherhe”) has already been given leave to seek judicial review of a decision of the second

named respondent (“RAT”) in which the RAT refused Prince Evuarherhe’s appeal against a previous decision of the Refugee

Applications Commissioner (“RAC”) to the effect that a recommendation in favour of granting refugee status be refused.

1.2 In the ordinary way the application for leave was on notice to the respondents and required Prince Evuarherhe to establish

substantial grounds in order that leave be given. In this case the leave application was contested by the respondents. While a

number of grounds had been advanced as the basis for the proposed challenge to the decision of the RAT, this court (Herbert J.) by

order of 23rd June, 2005, granted leave which was limited to the following:-

“The applicant do have leave to apply for an order quashing the decision of the second named respondent dated 27th day

of August, 2004, that the applicant’s appeal against the recommendation of the Refugee Applications Commissioner be

refused by way of application for judicial review in respect of the said applicant as set forth in paragraph D(1) of the said

statement on the grounds set forth at paragraph E(4) in the aforesaid statement”.

This substantive hearing is, therefore, confined to the issues in respect of which leave has been granted. Ground E(4) states as

follows:-

“The recommendation of the second respondent was unreasonable and/or irrational and/or contrary to common sense in

that he had no admissible or any evidence to support his view that State protection would be available to the applicant

should he be returned to Nigeria. Moreover, such a view runs contrary to then (sic) evidence presented by the applicant

both at the oral hearing and prior to same”.

1.3 There is, therefore, only one issue in this case. It is as to whether the RAT, in coming to the decision which it did, can be said to

have been irrational in the legal sense and in particular whether, as is contended, there was no evidence to support the view

expressed by the RAT concerning the availability of State protection.

2. Background Facts

2.1 Having regard to the narrow focus of the challenge which I now have to consider, it is not necessary to set out in full all of the

facts concerning the process before the statutory bodies charged with considering Prince Evuarherhe’s application for refugee status.

However, in brief terms Prince Evuarherhe is a Nigerian national having been born on 25th March, 1970. In circumstances to which I

will refer he arrived and applied for asylum in the State in March 2004 and went through the normal process required of such asylum

seekers. He completed the standard form questionnaire and was interviewed by an officer of the RAC on 19th April, 2004. The RAC

made a recommendation on 6th May, 2004 to the effect that refugee status should not be recommended. Against that

recommendation an appeal was brought by notice of appeal dated 31st May, 2004. The RAT conducted an oral hearing of that appeal

on 29th June, 2004 and made a decision refusing the appeal and affirming the recommendation to deny refugee status on 27th

August, 2004. That decision was communicated to Prince Evuarherhe under cover of a letter of 22nd September, 2004.

2.2 Insofar as material to the issues which I now have to address it should be noted that the basis of the decision of the RAC to

refuse a recommendation in favour of refugee status, stemmed, in the main, from a finding of lack of credibility.

2.3 It would appear, however, that the reasoning of the RAT (which is, of course, the decision now under challenge) was different.

The member of the RAT concerned having indicated that he was not satisfied that a well founded fear of persecution for one of the

reasons set out in s. 2 of the Refugee Act, 1996 had been established set out his reasons as follows:-

“1. This applicant claims that he suffered persecution arising out of the riots that took place during the Miss World

Contest in November 2002. Country of origin information has indicated that the police quelled the riots after a few days.

Also, country of origin information has indicated that police protection would be available to this applicant concerning the

alleged crime that was perpetrated on him. Therefore, I am of the view that State protection will be available to this

applicant then (sic) paragraph 100 of the UNCHR Handbook would be relevant in this instance. That states as follows:-

“Whenever the protection of the country of nationality is available, and there is no ground based on a well founded

fear for refusing it, the person concerned is not in need of international protection and is not a refugee”.

2. I note that this applicant spent approximately 12 months with his wife’s uncle in Lagos. He was quite safe there. This

applicant’s fear must be well founded. The fact that the applicant lived, quite safely, for approximately 12 months after

November 2002 indicates to me that this applicant’s fear is not “well founded”.

3. The applicant said that he is afraid to return to his father’s tribe because is (sic) father is an idol worshipper. There is

no obligation on this applicant to return to his father’s tribe. Also he has not furnished any evidence to the effect that he

would be persecuted in any way should he return. In any event, I take the view that State protection would be available

to him should he be subjected to any ill treatment by his father.”

2.4 As might be inferred from the above quotation Prince Evuarherhe had made the case that his fear of persecution stemmed from

his position as a Christian Pastor and was of both Muslim groups and of his father’s tribe. His case relied on his account of being

attacked and injured by a Muslim mob during riots in his home town of Kaduna associated with the Miss World Contest. No specific

evidence of any incidents concerning his father’s tribe was tendered.

2.5 As will be seen from the above the Tribunal Member concerned placed reliance upon State protection in relation to two aspects of

the reasoning set out. This appeal is concerned with whether there was a proper basis for that aspect of the conclusions and, if it be

established that there was not a proper basis for some or all of the findings made by the RAT, whether that is fatal to the overall

conclusions reached.

3. The Law

3.1 Counsel for Prince Evuarherhe placed reliance on two separate judgments in the case of Imafu v. The Minister for Justice Equality

and Law Reform. I granted leave in that case (Unreported, High Court, Clarke J., 27th May, 2005). Leave was confined to a ground

described in that judgment as being based on the Horvath principle being derived from United Kingdom authorities stemming from the

decision in Horvath v. Secretary of State for The Home Department (United Nations High Commissioner for Refugees Intervening)

(1999) INLR 7.

3.2 The substantive hearing was confined to that ground. In the judgment at that substantive hearing (Unreported, High Court, Peart

J., 9th December, 2005) the following passage from the judgment of His Honour Judge Pearl in Horvath was accepted as being a

correct and appropriate statement of principle:-

“It is argued that credibility findings can only really be made on the basis of a complete understanding of the entire

picture. It is argued that one cannot assess a claim without placing that claim into the context of the background

information of the country of origin information. In other words, the probative value of the evidence must be evaluated in

the light of what is known about the conditions in the claimant’s country of origin.”

3.3 However, while accepting that principle, Peart J. made clear that the extent (if any) to which it may be necessary for the Tribunal

Member concerned to refer to country of origin information as part of a credibility assessment is dependant on the facts of each

individual case. For the reasons set out by Peart J. in his judgment in Imafu he was not satisfied that, having regard to the nature of

the country of origin information concerned and to the nature of the evidence whose credibility was under consideration, there was

any failure, on the particular facts of that case, to consider credibility in a proper fashion.

3.4 I should say that I fully agree with the qualification placed by Peart J. on the Horvath principle in his judgment. Whether or not

there has been a failure to properly assess credibility in the context of country of origin information is not a question of technicality.

It is a question of substance which requires to be assessed in the light of the country of origin information concerned and the reasons

for doubting the credibility of the applicant in the case concerned.

3.5 However, in any event, it does not seem to me that Imafu or Horvath are of any relevance to this case. Those cases are

concerned with decisions in which the credibility of the applicant concerned was doubted. While the decision of the RAC in this case

did make findings of lack of credibility, there is nothing in the determination of the RAT (which is the decision with which I am

concerned) from which it would be reasonable to infer that the decision maker based his conclusions on any finding of lack of

credibility. Rather the reasoning (which I have set out in full above) accepts the account given as credible. However, for the reasons

specified by the member concerned he was not of the view that that account, when taken in conjunction with country of origin

information, was sufficient to allow him to conclude that a well founded fear of persecution for a convention reason existed.

3.6 That leads to the question of State protection. In the course of the determination of the RAT reference is made to the relevant

passage from the UNHCR Handbook. There is no doubt but that the Tribunal Member concerned accurately stated the law, which is to

the effect that a person is not entitled to refugee status if there could be said to be adequate State protection available in respect

of the type of persecution feared and in the absence of there being any good reason why it would be reasonable for the person

concerned not to avail of that State protection.

3.7 It has often been pointed out that State protection does not mean a State guarantee. No State is in a position, in practice, to

guarantee the complete safety of its citizens. The test is as to whether the State, in practical terms, provides adequate protection,

in general, in relation to the type of persecution feared. Just as the fact that a State will not be absolved from its obligation to

provide such practical protection by having laws which, for whatever reason, are not enforced in practice, similarly a State will not be

found to have failed to provide adequate protection because it can be shown that some incidences of the violation concerned have

occurred. This latter will be particularly so where it would appear that adequate and appropriate State measures have been taken to

deal with such situations or instances as arise.

3.8 For the above reasons it seems to me that the basis of the challenge in this case is not founded upon the Horvath principle but is

based on the more traditional judicial review issue as to whether there was any evidence from which the RAT could properly have

concluded that State protection was available. If the RAT came to a sustainable view that such State protection was available then

there can be no doubt but that the overall challenge must fail. The only issue which, therefore, it seems to me arises on the facts of

this case is as to whether it can properly be said that there was sufficient evidence available to sustain the decision of the RAT as to

State protection.

4. Application to facts of this case

4.1 Counsel for the respondents’ draws attention to the fact that there was amongst the papers before the RAT a document headed

“Womensrightswatch – Nigeria: Report on Riots in Kaduna”. That information is relevant in that the riots in Kaduna to which the

report relates were the riots connected with the Miss World contest and were therefore concerned with one of the two matters put

forward by Prince Evuarherhe as the basis for his well founded fear of persecution on the basis of being a Christian pastor. There is no

doubt from what is set out in that document that serious rioting did take place and that Christians were, in the course of that rioting,

targeted. However, it is equally clear that events were brought under control as a result of a significant action on the part of security

forces. The report indicates the following:-

“There was a dusk to dawn curfew for two days to put things under control.”

4.2 On the basis of that information it seems to me that there was ample evidence to enable the RAT member concerned to conclude,

as he did, that the riots were quelled after a few days. Some criticism is made of the fact that the decision of the RAT refers to the

riots having been quelled by “police” while the country of origin information is not specific as to the precise force which brought

matters under control. Such a distinction does not appear to me to be material. The Tribunal Member went on to note that police

protection was available. This is consistent with Prince Evuarherhe’s own account in which he indicated that he spent a significant

period after the riots in a secure location, protected by security forces.

4.3 Insofar as the findings of the RAT in respect of the Miss World contest riots are concerned I have, therefore, come to the view

that there was ample country of origin information available to the RAT to enable the member concerned to come to the conclusions

which he did.

4.4 The second reference to police protection is somewhat more problematic. As noted above the second basis for the contention

that a well founded fear of persecution exists stems from an alleged fear of persecution from Prince Evuarherhe’s father’s tribe. Under

that heading the Tribunal Member concerned concludes with the sentence “in any event, I take the view that State protection would

be available to him should he be subjected to any ill treatment by his father”. No country of origin information dealing specifically with

this aspect of police protection was, apparently, before the RAT. However, it is clear from a reading of point three of the reasons

given by the RAT member concerned that the question of State protection merely confirmed a view which he had already taken on

the issue of fear stemming from the applicant’s father’s tribe. This is shown by the fact that the sentence concerning State

protection is preceded by the phrase “in any event”. It seems clear that the same decision would have been reached even if the

question of State protection had not arisen.

4.5 Therefore I am satisfied that the proper construction to place upon ground 3, as relied on by the RAT, was that the member

concerned would, in any event, have been satisfied to place reliance upon that ground for the reasons, independent of State

protection, specified. Those reasons were based on materials which were properly before the Tribunal and there is no basis, therefore,

for taking the view that the Tribunal Member was not entitled to come to the view which he did.

4.6 I am not, therefore, satisfied that State protection materially affected the reasoning in ground 3. State protection obviously

materially affected the reasoning in respect of ground 1 but for the reasons which I have set out above, I am satisfied that there was

adequate evidence before the Tribunal Member concerned to reach the conclusions which he did in respect of State protection in

relation to ground 1.

4.7 I am not, therefore, satisfied that it has been established that there was no evidence to support the findings of the RAT in this

case insofar as any of those findings were material to or influenced in a significant manner, the overall conclusion reached.

5. The Test

5.1 While the matter was only touched upon in the hearing before me I have given some consideration to the proper test to be

applied in reviewing a decision of the RAT in a matter such as this. There have been a number of decisions at leave stage where this

court has been satisfied that there are substantial grounds for arguing that a more rigorous test than that traditionally applied in

judicial review, may be appropriate when the court is scrutinising decisions which may affect fundamental human rights. (See for

example Gashi v. Minister for Justice Equality and Law Reform (Unreported, High Court, Clarke J. 3rd December, 2004)). As this is a

substantive, rather than a leave, hearing it would be inappropriate to express any concluded view on that issue without full argument.

5.2 However, it seems to me that, even on the basis of a higher level of scrutiny, the applicant’s case in these proceedings would

also fail. Therefore it does not appear to me that it would, in any event, have been appropriate in this case to address the

undoubtedly important question of the appropriate in this case level of scrutiny to be applied by the courts to immigration cases (and

other cases involving fundamental human rights).

For all of the above reasons I would refuse the relief sought.