High Court dismisses judicial review of Refugee Appeals Tribunal decision denying refugee status based on marital violence claims.

Neutral Citation Number: [2008] IEHC 226

THE HIGH COURT

JUDICIAL REVIEW

2006 No. 1244 J.R.

BETWEEN

N. N.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND SUSAN NOLAN SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Judgment of Mr. Justice John Hedigan delivered on the 9th day of July, 2008.

1. The applicant seeks leave to judicially review the decision of the Refugee Appeals Tribunal (RAT) dated the 5th October, 2006,

affirming the recommendation of the RAC (Refugee Appeals Commission) that the applicant should not be declared a refugee. The

applicant is a native of Nigeria with a date of birth of 3rd June, 1973, and she was born in Lagos. She is a BSc graduate in Zoology of

the University of Ibadan and obtained an MBA degree from the Esut Business School in Enugu State. Prior to her marriage, she was a

successful business woman. Her marriage of 2004, sadly, was not a successful one. Through 2005 unhappy differences emerged. She

alleges she was the victim of her husband’s violent behaviour, including rape, while she was pregnant. She also claims as a result of

his violence that she suffered the loss of one eye. She says her husband told her to “go away”. He did not want her, she said. In

January, 2006, she says she sold some family possessions to raise money in order to leave Nigeria. She travelled with an agent by

road to Ghana and thence by air from Accra via another airport to Dublin. The application for leave was narrowed at the hearing to

the ground that her relocation to find safety was not properly dealt with by the Refugee Appeals Tribunal, specifically no area of safe

location was identified. It was further argued that paragraphs 25 – 30 inclusive of the UNHCR guidelines were not applied by the

Refugee Appeals Tribunal to her case. The standard of proof required in order to move the Court to grant leave was defined by the

Supreme Court in Re Article 26 of the Constitution and the Illegal Immigrants (Trafficking) Bill, 1999. Interpreting the words

“substantial grounds”, the Court said and I quote:-

“In McNamara v. An Bord Pleanála (No. 1) [1995] 2 I.L.R.M. 125, Carroll J. interpreted the phrase “substantial grounds” in

the provisions of the Planning Act of 1992 as being equivalent to “reasonable”, “arguable” and “weighty” and held that

such grounds must not be “trivial or tenuous”. Although the meaning of the words “substantial grounds” may be expressed

in various ways, the interpretation of them by Carroll J. is appropriate.”

2. Are there present here reasonable, arguable and weighty reasons to set aside the Refugee Appeals Tribunal’s decision and return it

for re-consideration? Firstly it is questioned by the respondents whether the marital violence alleged by the applicant against her

husband is capable of constituting persecution under s. 2 of the Refugee Act, 1996, (as amended). This provides the term “refugee”

shall apply to any person who:-

“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular

social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is

unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside

the country of his or her former habitual residence, is unable or, owing to such fear, is unwilling to return to it…”.

3. I share the respondents’ doubt and do not believe that without more, a person, the subject of marital violence, can claim a well-

founded fear of persecution within the meaning of s. 2, such as would require her to leave her country, in this case one of the largest

and most populous countries in Africa, and flee abroad, in this case to Ireland. Even were that not so, the applicant would have to

establish that there existed a factual framework that supported such a fear. In this regard, the Refugee Appeals Tribunal examined

her claim and found it lacking in credibility. In this regard, it noted the following:-

(a) The husband, according to herself, wanted her to leave. This contradicts her fear that he would come after her

if she did so.

(b) She failed to seek a divorce and gave no reason as to why she did not petition.

(c) Her account of her journey to Ireland, heavily pregnant, her not being questioned by an Immigration Officer,

even though she never presented her own documents but had this done for her by her agent is not credible.

Mandatory practice at international airports require a person to present their own documents to officials.

(d) She failed to provide photographic identity documentation nor did she know the name or the photo that was on

the false passport on which she travelled.

(e) She claims the loss of sight of one eye as a result of violence by her husband but has no medical or hospital

reports to support this claim. She maintained that she had attended her cousin’s chemist.

4. It seems to be that the Refugee Appeals Tribunal had ample grounds to doubt the credibility of the applicant and has very clearly

set out its grounds for doing so. On the basis of their finding the applicant to be lacking credibility, the Refugee Appeals Tribunal need

not have gone further. It has, however, gone on to consider the question of relocation within Nigeria. The RAT noted:-

“She is a highly educated business woman with several years experience running her own business. The only objection she

could make to relocation is the need to avoid her husband”.

5. This is not credible in the first place because according to herself, her husband wanted her to leave. Insofar as no specific location

is identified as a safe one, I do not consider that argument to have any merit on the basis of the facts before the Refugee Appeals

Tribunal any part of Nigeria, save the immediate vicinity of her husband’s location, would be a safe location. In any event, it seems

wholly unsustainable as a proposition that a woman forced to leave her husband, needs to flee her country, in this case Nigeria, and

seek safety as a refugee, in this case in Ireland. I refuse leave to apply.