High Court dismisses judicial review application challenging Refugee Appeals Tribunal decision on asylum claim.

Neutral Citation Number: [2010] IEHC 513

THE HIGH COURT

JUDICIAL REVIEW

2008 507 JR

BETWEEN

P.O.

APPLICANT

AND

MINISTER FOR JUSTICE AND LAW REFORM AND MAJELLA TWOMEY SITTING AS THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

JUDGMENT of Mr. Justice Ryan delivered the 22nd October 2010

1. This is an application for leave to bring judicial review proceedings in respect of a decision of the Refugee Appeals Tribunal dated

the 14th February, 2008, whereby it affirmed the recommendation of the Refugee Applications Commissioner that the applicant should

not be declared a refugee.

2. The applicant’s case is, first, that the Tribunal should have expressly considered certain country of origin information, namely, an

article from the “afrol News” website entitled “Half of Nigeria’s women experience domestic violence”. Second, that the Tribunal erred

in its consideration of internal relocation because it did not – in accordance with the UNHCR - (a) thoroughly investigate whether

relocation was a realistic option; (b) consider the social and economic conditions in any specific location and (c) identify a specific

location where it would be possible for to the applicant to relocate. The third is that the Tribunal erred in assessing the applicant’s

credibility.

3. The Tribunal’s decision is also based on three grounds: the applicant’s lack of credibility in a number of respects, the viability of

internal relocation and the availability of state protection. The applicant through her counsel makes arguments against the credibility

findings and the respondent dismisses them as nitpicking point by point deconstruction of a kind that is impermissible in these

circumstances. As to the viability of internal relocation, the UNHCR Guidelines place the onus of establishing this on the Tribunal and

the claim should be seen in its factual context with some particular location in mind where the asylum seeker will be safe. It is not

enough simply to say that the applicant should go to some other part of the country but rather that one should have some particular

place in mind.

4. I turn first to the question of state protection. The onus on this matter rests on the applicant, who makes the case that she is at

risk from the actions of non-state actors and that the state protection available in Nigeria is insufficient. It seems to me that she has

a relatively high burden of proof in this claim. The issues and the law in this area were analysed by Birmingham J. in the case of A.B.O.

v. Minister for Justice (Unreported, High Court, 27th June, 2008) [2008] I.E.H.C. 191, where he deals with state protection at paras.

29 to 38 and subsequently. Now it is of course clear that the role of the Court is to consider whether it was reasonably open to the

Tribunal to reach the conclusion it did. On the test in the Canadian case of Canada (Attorney General) v. Ward [1993] 2 S.C.R, 689,

as endorsed by Birmingham J. in the A.B.O. case I think it is quite clear that the applicant has failed under this heading. It is not just

that the Tribunal was entitled to come to the conclusion that it did, but rather that it would have been eccentric, to say the least,

for the Tribunal to have come to any other conclusion, having regard to the evidence and to the relevant test for state protection.

5. The material in the “afrol News” article that the applicant relies on in seeking leave is irrelevant to the issues, not to mention the

fact that the document is unimpressive as a source of reliable country of origin information. It is not clear even what year the article

was published: it is marked simply “31 May”. The document deals with the problem of domestic violence in Nigeria whereas the

applicant’s claim for asylum is not in any way based on a fear of domestic violence. I have no reason to doubt that there is indeed

such a problem in Nigeria and probably in many other countries as well. But the whole article is concerned with domestic violence and

the only thing that counsel can fix on is the inclusion of two words “or community” in one paragraph and he uses these two words as

a justification for claiming that the Tribunal member was in error in failing to discuss this document and to set it up against other

country information before she arrived at her conclusion on state protection. This proposition is untenable. The applicant has failed

under the heading of state protection to establish any ground, let alone a substantial ground, for challenging the finding of the

Tribunal.

6. As to internal relocation, again the same country information is relied on, but it is also said that the Tribunal did not set out and

put in context the claim made by the applicant and provide details as to where and how she could be expected to make a life for

herself elsewhere in Nigeria. I accept a submission made by Ms. McGrath, counsel for the respondents, in this regard. She points out

that there was in fact a reference by the Tribunal member to a specific part of Nigeria, namely Delta State, where the applicant says

that she lived for some two months after escaping the home of her in-laws where she claims to have been incarcerated for some six

months with her children. The Tribunal member then goes on to find (at p. 21 of her decision):-

“Nigeria is country with 36 states and a population of over 140 million. Even if the applicant has subjective fears, there is

nothing to suggest that she could not relocate safely elsewhere in the country. In all the circumstances it is apparent to

me that relocation is a viable option for the applicant.”

It is clear from the decision that the Tribunal member considered there to be numerous options open to the applicant as to where she

might safely relocate, including within Delta State, where she had previously resided. This conclusion was rationally arrived at and

based on the evidence that the Tribunal member had before her and it is not accordingly subject to judicial review and there are no

substantial grounds to challenge the finding.

7. It does seem to me that it is not sufficient for an applicant to sit back, so to speak, and demand that the Tribunal or the

presenting officer or some other agency should establish a case block by block as to an alternative life that the applicant might be

able to live and that, in default of establishing such a putative alternative existence, the applicant must succeed. I think that internal

relocation has to be seen in a case like this, as in all other asylum cases, by reference to the particular facts. I do not take the

UNHCR Guidelines, which are extremely helpful to decision makers and to courts in analysing the work of decision makers, to establish

a rigid requirement that places on a decision maker in every case where internal relocation is relevant an obligation to explore in great

detail the alternative life open to the applicant. In particular, it seems to me that where the threatened persecution is local and

limited in area and personnel, that it may be sufficient to point out, if the evidence justifies that conclusion, that some or many or

most other regions of the country in question are available to the asylum seeker for sanctuary. In the present case the applicant is

protesting about a conclusion that she could have remained in Delta State, where she was able to remain for two months in safety

and without any threat to her, instead of travelling all the way to Ireland and applying for asylum. I believe the Tribunal member was

entitled to reach this conclusion on the basis of the information before her. Accordingly, insofar as the question of internal relocation

is concerned, I am not satisfied that the applicant has established substantial grounds for challenging the Tribunal’s decision.

8. I turn finally to the question of credibility. Here I do rather agree with the respondents’ submission to the effect that the

applicant’s counsel has engaged in a point by point deconstruction for the purpose of parsing and picking apart the findings. It is of

course the case that the Tribunal fundamentally based its conclusion on state protection and secondly on freedom to relocate

internally. The credibility findings are part of the analysis, but I do not think that they are really the essential part. Regardless of

whether the applicant had been deemed credible or not, the fact that she has failed on the other two grounds or on either of the

other two grounds is fatal to her case. This notwithstanding, taking the criticisms of the credibility findings that are made by counsel,

it does seem to me that they are nitpicking and do not relate at all to the context in which this claim has been made. I accept that

some limited number of the points made by counsel might be considered to have weight, if one ignored the factual context in which

the consideration occurred. When that background is established and kept in mind, however, it seems to me that the criticisms are

drained of validity. It seems to me that the part of the Tribunal’s decision dealing with credibility is clearly set out so that there is no

doubt as to what the Tribunal member was thinking or why she had reservations about the credibility of the applicant. It is not my

function to question the legitimacy of the findings if they are reasonably and rationally based on the evidence that was before the

Tribunal. It is not for me to say whether I agree or disagree, because that is irrelevant.

9. It seems to me overall that this is a careful considered decision. Of course, it may be open to criticism in certain respects; it can

be picked apart and infelicities of style and meaning can be identified. This much it has in common with most other decisions and

judgments. But it seems to me to be a clearly expressed consideration of the case put forward by the applicant and the rejection on

the three grounds is reasonable and I do not think that any significant flaw in the decision can be found.

10. I refuse this application for leave.