High Court dismisses leave for judicial review of Refugee Appeals Tribunal decision denying asylum claim based on FGM fears.

Neutral Citation Number: [2008] IEHC 311

THE HIGH COURT

2006 No. 1243 J.R.

BETWEEN

K. O. O.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND

THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Judgment of Mr. Justice Hedigan, delivered on the 15th day of October, 2008.

1. The applicant is a national of Nigeria. He is seeking leave to apply for judicial review of the decision of the Refugee Appeals Tribunal

(“RAT”) to affirm the earlier decision of the Office of the Refugee Applications Commissioner (“ORAC”) that he should not be declared

a refugee.

Background

2. The applicant claims to fear being killed by members of his tribe because of his objection to his daughter being subjected to female

genital mutilation (FGM). He and his wife lived in a village in Delta State. When their first-born daughter was just one month old, she

was subjected to FGM by a member of their tribe and she developed serious infections. When his wife became pregnant with a second

daughter, they decided not to allow her to be subjected to FGM. Close to the due-date, in early 2004, the couple moved to Port

Harcourt, but their community sent people to look for them. The applicant’s wife departed for Ireland, where she gave birth to their

second daughter. Their first-born daughter remained with the applicant’s mother in Nigeria.

3. The applicant remained in Port Harcourt for some two years after his wife’s departure. In April, 2006, however, he encountered a

member of his community in Port Harcourt. That evening, members of his community destroyed the house where he was staying,

when he was out. He did not report this event or his fears to the police as he believed they would not intervene. Instead, he

arranged to leave Nigeria.

4. The applicant arrived in the State on 7th May, 2006 and applied for asylum in the ordinary way. He was unsuccessful before ORAC

and he appealed to the RAT. An RAT oral hearing took place and the Tribunal Member rejected the appeal by decision dated 3rd

October, 2006. She does not appear to have doubted the applicant’s credibility; rather, her decision to reject the appeal was

grounded in the finding that State protection might reasonably have been forthcoming in Nigeria.

The Submissions

5. The applicant’s complaints in respect of the decision are as follows:-

a. Error of Fact: The ban on FGM in the Delta State;

b. Breach of Fair Procedures: Treatment of country of origin information;

c. Error of law as to State protection.

(a) The Ban on FGM in Delta State

6. At the RAT oral hearing, it was put to the applicant that FGM is banned in Delta State. That such a ban exists was twice reiterated

in the RAT decision. The applicant submits that the Tribunal Member erred in this regard as it is said that the country of origin

information relied on does not list Delta State as one of the states that bans FGM. It is contended that the fact that the Tribunal

Member repeatedly adverted to the apparent ban means that it had considerable significance in her mind. It is suggested that this

was, therefore, a considerable error of fact that leaves the RAT decision open to review. Reliance is placed on the decisions of Imoh

v. The Refugee Appeals Tribunal [2005] IEHC 220 and Traore v. The Refugee Appeals Tribunal [2004] IEHC 606.

7. The respondents argue that the country of origin information does not definitely state that FGM is not banned in Delta State but

rather, it states that a number of States have banned the practice and a number of other States are in the process of enacting

legislation. Also, the respondents complain that the applicant did not specify the nature of the alleged error of fact until the hearing,

having made only general reference to an error of fact in his Statement of Grounds.

(b) Treatment of Country of Origin Information

8. The applicant complains that the country of origin information relied on was largely irrelevant as it focuses on the availability of

police protection from FGM practices instead of the applicant’s fear of being killed by members of his community. In this regard, the

respondents submit that the issue of FGM and the applicant’s fears are intrinsically linked and could not be considered without

reference to one another. The respondents argue that the Tribunal Member was therefore correct to deal with the issue of FGM as

well as dealing with the applicant’s fears that he might be killed.

9. The applicant also submits that the Tribunal Member engaged in impermissible use of an Operational Guidance Note (OGN) of the UK

Home Office of December, 2005. It is contended that the Tribunal Member erred by failing to have regard to the introduction to the

OGN, which states that the document “must be read in conjunction with the October 2005 COI Service Nigeria Country Report … and

any COI Service Nigeria Bulletins”. The applicant submits that the often-cited COI Service Nigeria Country Report of October 2005

provides clear evidence that state protection may not have been forthcoming. That Report states that the police force in Nigeria is

poorly trained, ill equipped and poorly remunerated, that corruption is rampant, and that the police force is ill-equipped to address the

rising levels of crime.

10. The respondents complain that the question of whether or not the OGN should have been considered was not pleaded in the

Statement of Grounds. In addition, it is submitted that there is no legitimacy to the applicant’s complaint: it is said that the OGN

objectively reflects the situation in the country of origin, and that it was open to the Tribunal Member to consult it. The respondents

rely on the decision of G.O.B. v. The Minister for Justice, Equality and Law Reform [2008] IEHC 229 and also on the decision of H.O.

v. The Refugee Appeals Tribunal & Anor. [2007] IEHC 299. In the latter case, this Court stated that “[a]bsent some glaring and

manifest flaw”, the Court may not intervene in the assessment of country of origin information. The respondents submit that no such

glaring and manifest flaw can be identified in the present case.

(c) The Burden of Proof

11. The applicant submits that there is a shared burden of proof on the decision-maker, in accordance with Z v. The Minister for

Justice, Equality and Law Reform [2002] 2 I/R. 135, and that the Tribunal Member’s failure to refer to the UK Home Office Report

constitutes a breach of that duty. The respondents submit that the burden remains on the applicant, and they dispute that there

was any error on the part of the Tribunal Member.

(d) State Protection

12. In the RAT decision, the Tribunal Member stated as follows:-

“If one accepts that the treatment meted out to the applicant constitutes persecution, an applicant still has to

demonstrate, where persecution does not emanate from the State, that the State is either unwilling or unable to provide

protection.”

13. The applicant submits that the Tribunal Member should have focussed, instead, on whether the applicant is unwilling or unable to

avail of State protection. The respondents contend that it is evident from the remainder of the decision that the Tribunal Member

correctly applied the test formulated in Canada (AG) v. Ward [1993] 2 SCR 689 by asking whether protection would have been

available if the applicant had sought it and by consulting country reports in order to carry out that assessment.

The Court's Assessment

14. This being a leave application, the applicant must establish substantial grounds for contending that the decision of the Tribunal

Member should be quashed. As is now well established, this means that grounds must be shown that are weighty and arguable, as

opposed to trivial or tenuous.

(a) The Ban on FGM in Delta State

15. At the outset, I would note that if an applicant seeks to argue that a decision-maker has made an error of fact, the applicant

must specify clearly in their Statement of Grounds what the alleged error consists of. Applicants must allow respondents the

opportunity to investigate and take instructions on all of the grounds on which their application is based. In this case, the applicant

has failed to do so. That notwithstanding, I accept the respondents’ proposition that it is not clear from the country of origin

information whether or not FGM was, in fact, banned in Delta State. In any event, I consider this matter to be irrelevant to the

assessment of the applicant’s core claim. In this regard, the present case can be distinguished from Imoh and Traore. In the

circumstances, I am of the view that even if one was to accept that the Tribunal Member had erred in fact, such an error would not

be fatal to the decision.

(b) Treatment of Country of Origin Information

16. I would accept that there was a considerable concentration by the Tribunal Member on the question of FGM, which does not

seem to be strictly relevant to the applicant’s claim. The applicant’s claim is, in truth, very simple, and the Tribunal Member could

probably have decided the case without reference to FGM. In reality, however, it is quite clear that the Tribunal Member also

identified the applicant’s core claim (i.e. his fear of persecution by members of his community) and that she dealt appropriately and

adequately with that core claim.

17. In my judgment, it was perfectly acceptable for the Tribunal Member to refer to the UK Home Office Operational Guidance Note as

a guide to the up-to-date state of affairs in Nigeria. The absence of a reference to the Home Office Report of 2005 is not an

indication that the Tribunal Member did not take that report into account. The ORAC Annual Report for the year 2007 demonstrate

that 25.8% of all ORAC applicants came from Nigeria, more than three times the number of applicants from any other country. The

same figure for the year 2008, as at the end of September, stands at 26.1%. It must be accepted as a matter of common sense that

bodies such as ORAC and the RAT have institutional memories in respect of frequently-quoted reports that relate to countries such as

Nigeria, from where such a high percentage of applicants originate. I am supported in this view by the following statement of

Birmingham J. in G.O.B. [2008] IEHC 229 (at para. 26):-

“Again, one must appreciate that the Minister and his officials are not coming to this issue as total novices. A great

number of other cases will have raised issues about seeking assistance from the Nigerian police. Those officials who deal

with these issues must be considered to have acquired a broad familiarity with the general perception of the Nigerian

police force.”

(c) The Burden of Proof

18. As to the burden of proof, it is helpful to look specifically at what was said in Z [2002] 2 I.R. 135. McGuinness J. referred to the

submission that there is a shared burden of proof between the applicant and the decision-maker on the basis of the UNHCR Handbook.

She noted (at p. 150) that it is the practice of decision-makers to obtain independent evidence of matters relevant to the applicant’s

claim, and stated:-

“This type of investigation would, I consider, be a major part of the duty to ascertain and evaluate that which is referred

to in para. 196 [of the UNHCR Handbook.] This information cannot, however, replace the need for the provision of factual

evidence by the applicant of incidents of actual anti-semitic persecution of himself […]. The burden of proof of

establishing that he personally had a well-founded fear of persecution rested on him. This is the subjective element in the

definition and cannot be provided by the assessor.”

19. Thus, the primary burden of proof rests with the applicant to make out his case and there is what might only be described as a

subsidiary burden on the decision-maker. I cannot see that the Tribunal Member in the within proceedings failed to discharge this

burden. On the contrary, I agree with the following statement of Birmingham J. in G.O.B. (at para. 19):-

“If the applicant believed that this or other documentation supported his case that he was in need of State protection, it

was his responsibility to produce it and this he failed to do […].”

(d) State Protection

20. In my view, the Tribunal Member correctly applied the test of state protection that was formulated in Canada (AG) v. Ward

[1993] 2 SCR 689 as follows:-

“Like Hathaway, I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which

state protection “might reasonably have been forthcoming”, will the claimant's failure to approach the state for protection

defeat his claim. Put another way, the claimant will not meet the definition of “Convention refugee” where it is objectively

unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need

not literally approach the state.”

21. Ward has been accepted as a correct statement of the law in this jurisdiction in D.K. v. The Refugee Appeals Tribunal & Anor

[2006] 3 I.R. 368 and H.O. v. The Refugee Appeals Tribunal & Anor [2007] IEHC 299, among other cases.

22. The reality of the situation in the present case is that the applicant was able to live safely in Nigeria for two years after his wife’s

departure. Even after the incident in Port Harcourt in 2006, he did not complain to the police. La Forest J. in Ward held that where

representatives of a state authority have not conceded their inability to protect, “clear and convincing confirmation of a state’s

inability to protect must be provided.” Otherwise, nations should be presumed capable of protecting their citizens and it will be

incumbent on an applicant to seek state protection provided that the alleged persecution is at the hands of non-State actors.

23. In my view, there is no excuse for the applicant’s failure to make such a complaint to the police in the circumstances of the

present case. Country of origin information suggests that while there are, no doubt, problems with the police in Nigeria, state

protection is available to those who are in fear of violent crime. No clear or compelling confirmation has been provided of the inability

of the Nigerian state to protect the applicant. The Tribunal Member cannot therefore be faulted for concluding as she did in respect

of state protection.

24. In the circumstances, I am not satisfied that substantial grounds have been established and accordingly, I must refuse to grant

leave.