High Court dismisses judicial review application regarding asylum claim analysis and UNHCR Handbook compliance.

Neutral Citation Number: [2008] IEHC 270

THE HIGH COURT

JUDICIAL REVIEW

2006 No. 1012 J.R.

BETWEEN

S. M. I. O. (AN INFANT SUING BY HER MOTHER AND

NEXT FRIEND M. L. O.)

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPLICATIONS COMMISSIONER

RESPONDENTS

Judgment delivered by Mr. Justice Edwards on the 30th day of July 2008

Introduction

1. This is an application for leave to apply by way of judicial review for diverse reliefs including an order of certiorari quashing the

report and recommendation given by the second named respondent pursuant to s. 13(1) of the Refugee Act 1996 (as amended) in

respect of the applicant’s claim for asylum. Among the other reliefs claimed is an injunction restraining the first named respondent

from taking any further steps in relation to the applicant’s application for refugee status pending the outcome of these proceedings.

2. The draft statement of grounds accompanying the application sets out numerous complaints in respect of the manner in which her

case was dealt with by the second named respondent. However, these were distilled into complaints under three discreet headings for

the purposes of the applicant’s written submissions and legal argument before the court. They are as follows:-

(a) An alleged want of fair procedures on the part of the Refugee Applications Commissioner (hereinafter the RAC) in

dealing with the case;

(b) An alleged absence of proper analysis by the RAC and

(c) An alleged failure to have regard to the UNHCR Handbook.

Background Facts

3. The applicant was born in Ireland on the 3rd April, 2006, and is the daughter of a Nigerian father and a Ugandan mother. She is not

a citizen of Ireland. In the application for refugee status questionnaire completed on her behalf by her mother, with the assistance of

an interpreter and an Irish solicitor, she is stated to be a citizen of Uganda with an entitlement to claim nationality/citizenship of, or

right of residence in, Nigeria, presumably through her father. The case is highly unusual in as much as the applicant claims refugee

status on the basis of a well founded fear of being persecuted in both Uganda and Nigeria respectively. She claims the fear of

persecution in Uganda on the basis that her life would be in danger there because her mother renounced the Muslim faith to marry her

father, a Christian, and went against the wishes of her mother’s family. She claims the fear of persecution in Nigeria, her father’s

home State, on the grounds that she would be subjected to female genital mutilation in Nigeria by members of her father’s family.

Obviously as the applicant is only 2½ years of age she has not articulated these fears herself. They have been articulated on her

behalf by her mother and they are elaborated upon in her answers to relevant questions in the application for refugee status

questionnaire. In response to the question, “what do you fear may happen to you or any of the people included in this application if

you return to your country of origin?” she stated:-

“My fear is that, if S. is returned to Uganda, her life would be in danger and not protected. This is because she has

nowhere to go or belong and no one to take care of her as my family have made it very clear that they did not accept my

marriage and not to live to see me neither my children because I renounced my Muslim belief which put a very big shame

to the family because of their fanatic beliefs. It’s all because I went on to marry a Christian who they regard as a non-

believer and so is my children. And so S. will suffer because her mixed race and religion, and there is no relation that can

take her in the family. The way they chased us by threatening to kill me and my husband there is no way they can take

S. or my other children home or me because am regarded and seen as a shame and disgrace to them and the entire family

and their Moslem community. Also in Nigeria I know her life is in danger of dying because of the rituals of circumcision. As

this is performed to female in my husband’s culture and is the reason why I left because I could not accept or agree for

me to be circumcised. I see my daughter’s life at a very big risk of death if at all she is to go through that ritual of

circumcision. This is very dangerous because it can cause her to bleed to death and as well, this in itself can as well

danger her healthy because of urinary infections and am very scared if me and my children are to go through this. Please

this is why I kindly ask for your protection here in Ireland.”

4. In response to the question, “why did you leave your country of origin?” she stated:-

“I left Uganda due to the life threats I and my husband received from my family as they found out that I was engaged

with a Christian man. They hated him because he was not a Muslim and also being a foreigner (Nigerian). They threatened

to kill him and myself if we continued the relationship, this is all because they are a fanatic Moslem family and as I was

already pregnant then, so I decided together with my husband to move to join him in Nigeria. In Nigeria is where I married

and had my first daughter, but I had to leave in fear of my life and my whole family being killed due to the fact that we

didn’t agree to the demands of my husband’s family. We came into Ireland where we have settled in and had our other

two children of which S. is one of them.”

The Section 13 Report and Recommendation

5. In his section 13 report, dated the 26th July, 2006, the second named respondent concluded that the applicant had failed to

establish a well founded fear of persecution as defined under s. 2 of the Refugee Act 1996, (as amended). At para. 4.1 of the report

it is stated:-

“The applicant’s mother M. L. O. stated that she was a Ugandan who converted to Christianity and married a Nigerian, Mr.

C. O. She stated that her own family was against the marriage and that her husband’s family wanted to circumcise her in

accordance with their traditions. It was for these reasons that this applicant’s parents came to Ireland to claim asylum.

The applicant’s father has been refused and this was upheld on appeal. The mother’s case was initially refused and now is

at the appeal stage. The applicant’s mother stated that she was afraid that if her daughter was returned to Nigeria she

would be circumcised by her father’s family. The applicant’s mother was asked if she was aware that there were

organisations in Nigeria who assist women who do not wish to be circumcised. She denied any knowledge of such

organisations. The applicant’s mother was also asked if she was aware of legislation in Nigeria outlawing female

circumcision. Once again the applicant’s mother denied knowledge of such legislation. However, the applicant’s mother

managed to live in the same area as her husband’s family without being circumcised and this combined with the husband’s

unwillingness to co-operate further reduces the likelihood that the applicant herself would face circumcision if she was

returned to Nigeria.”

6. At para. 4.2 of the report it is stated:-

“The applicant’s mother stated that her husband’s family attacked them on a number of occasions and that these attacks

were reported to the police. But she claims that the police told them to sort things out among the family. The police,

however, did take cognisance of the complaint, but were merely following the traditional route for settling familial disputes

by suggesting that these things could be sorted out within the family circle.”

7. At para. 4.3 of the report it is stated:-

“The applicant’s mother stated that her family in Uganda were against her conversion to Christianity and her marriage to a

Nigerian. She claims that her daughter would be in danger because of this. The Ugandan constitution provides for freedom

of religion and movement. The applicant and her mother and father would therefore have the option to returning to

Uganda as an alternative to going to Nigeria.”

8. Two documents were annexed to the section 13 report.

The Appendices to the Section 13 Report.

9. Before proceeding to consider the parties respective contentions on the substantive issues I want to make some detailed

comments about the presentation of the two appendices to the section 13 report. The first consists of a three page extract from a

document, apparently entitled “Report on Human Rights Issues in Nigeria” as it bears a header to that effect. The provenance of this

document is not identified. No indication is given as to the authorship or source of the material in question. I have commented in

other cases that this type of presentation is simply not satisfactory from the point of view of a reviewing court. If the Refugee

Applications Commissioner intends to rely upon country of origin information in support of a conclusion or conclusions it is incumbent

upon him to properly identify the material in question. It is impossible to know from the extract attached to the s. 13 report if it

comes from a reliable source. It is also impossible to know within what context the section relied upon appears within the structure of

the document as a whole. The deficiencies that I have noted in this case do not represent an isolated incidence of the problem. On

the contrary I have experienced the difficulty complained of in several instances recently and it is to be hoped that, having been

appraised of it, the Refugee Applications Commissioner will in future endeavour to ensure that the source and provenance of country

of origin information is identified with particularity and further ensure that the context of any quotation or extract relied upon is

readily ascertainable.

10. The second document annexed to the section 13 report consists of a single page which again is untitled and unattributed. The

text thereon, which takes up approximately one third of the page, bears a heading “Protection of Freedom of Conscience, Expression,

Movement, Religion, Assembly and Association”. Under this heading there is then reproduced what appears to a single section or

article taken from some legal instrument. It is presumed by referral back to the contents of the s. 13 report that this must be an

extract from the Ugandan Constitution. However, it is not labelled as such. Once again I would comment that it is wholly

unsatisfactory that the High Court, or indeed any interested party, should have to resort to inference or speculation to ascertain the

nature and potential relevance of an appendix to the s.13 report. With respect to the substance of the material, the provision relied

upon, namely section 29 or article 29, deals inter alia with constitutional protection of freedom of religion and freedom of movement.

However, the provision is reproduced in isolation and one is not given the opportunity to examine it in it’s context. Context is very

important when considering the provisions of a constitutional instrument because it may assist in determining the extent of rights

guaranteed, and whether they are capable of being invoked by the individual citizen. For example, an article purporting to guarantee

freedom of religion might be open to a number of possible interpretations. Taken in its context, it might well be the case that what is

guaranteed is simply that no law may be enacted by the legislature of the state in question which would have the effect of prohibiting

or curtailing the practice by an individual of their religion. On the other hand it might equally be apparent from the context that the

State in question is obliged by its laws to actively defend and vindicate the right in question on behalf of the individual citizen, or that

the individual can personally invoke that right as against the State or as against another body or individual in litigation. The single

article quoted on the page in question provides minimal information concerning the parameters and status of the rights identified by

the Commissioner as enuring to the benefit to the applicant and is open to criticism on that account.

Preliminary Issue

11. The respondent makes what amounts to a preliminary objection to the applicant’s claim, namely, that if the applicant is

dissatisfied with the decision of the Refugee Applications Commissioner she ought to pursue her legal entitlement to appeal to the

Refugee Appeals Tribunal rather than invoking the jurisdiction of the High Court by way of judicial review.

12. As this issue has been raised by the respondents the Court presumes (a) that an appeal has already been filed “without prejudice”

to the outcome of this judicial review; and (b) that in the event of the Court upholding this preliminary objection the respondents will

not be attempting to stymie proceedings before the RAT by raising a time limit or delay point against the applicant, who is, after all, a

three year old child.

13. The court was referred to a number of decisions by the respondent and this has been most helpful. The decisions in question are

Stefan v. The Minster for Justice [2001] 4 I.R. 2003; Voke Akpomudjere v. The Minister for Justice, Equality and Law Reform

(Unreported, High Court, Feeney J., 1st February, 2007), and Akintepede v. The Refugee Appeals Tribunal (Unreported, High Court,

Birmingham J., April 2008). In particular the courts attention was drawn to the following passage from the Akintepede judgment

wherein Birmingham J. stated:-

“The question then arises as to the relevance of the availability of an alternative remedy or remedy by way of an oral

appeal and of course the existence of a statutory right of appeal brings with it the question of whether certiorari is an

appropriate remedy at all. The implications of the relevance of the availability of parallel remedies in the form of judicial

review and appeal have been considered by the Superior Courts in a number of contexts, including the planning and

compulsory acquisition code, District Court Appeals in criminal cases and in the asylum area. But, insofar as certiorari is

always a discretionary remedy, the existence of a right of appeal is always a relevant consideration as to how the

discretion should be exercised. The jurisprudence in this area has been the subject of a very helpful review by Feeney J.

in the case of Akomoj v. Minister for Justice a decision of 1st February, 2007.

While the existence of an appeal mechanism is clearly a very relevant consideration, one must always bear in mind that

the Supreme Court has made clear, as it did in the case of Stefan v. Minister for Justice [2001] 4 I.R. 2003, that the

process is a distinct two stage process and it follows that the applicant is entitled to fairness of procedures at both

stages, at first instance and if it goes that far, on appeal. An applicant cannot be short changed, as it were, by missing

out on a fair consideration of his claim at first instance.”

14. The respondent submits that if this Court is of the view that there was any defect of default in the decision of the second named

respondent in this case then such defect or default could and should be appropriately addressed via the statutory prescribed appeals

mechanism and that none of the grounds raised by the applicant in the case call for the intervention of the court by way of judicial

review.

15. In reply, the applicant’s counsel suggested that the deficiencies identified in the applicant’s submissions were so fundamental that

the applicant effectively missed out on a fair consideration of her claim at first instance, and that in the circumstances judicial review

proceedings are appropriate.

The Substantive Issues

Alleged Want of Fair Procedures

The Applicant’s Submissions

16. Counsel for the applicant submitted that doubts that were clearly in the mind of the decision maker were not put to the

applicant’s mother in order to afford her an opportunity to dispel those doubts. The applicant relies on the case of Idiakheua v.

Minister for Justice, Equality and Law Reform (Unreported, High Court, Clarke J., 10th May, 2005), stated:-

“It seems to me that an inquisitorial body is under an obligation to bring to the attention of any person whose rights may

be affected by a decision of such a body any matter of substance or importance which that inquisitorial body may regard

as having the potential to affect its judgment. In that regard an inquisitorial body may, in many cases, be in a different

position to a body which is simply required to adjudicate upon the contending positions of two competing parties in an

adversarial process. In the latter case the adjudicator simply decides the issues on the basis of the case made whether

by evidence or argument by the competing parties. However the principles which have been developed by the courts

since the decision of the Supreme Court in Re Haughey [1971] I.R. 217 are equally applicable, in principle, to inquisitorial

bodies. The precise way in which those principles may be applied may, of course, differ. However the substantial

obligation to afford a party whose rights may be affected an opportunity to know the case against them remains. In those

circumstances it seems to me that whatever process or procedures may be engaged in by an inquisitorial body, they must

be such as afford any person who may be affected by the decision of such body a reasonable opportunity to know the

matters which may be likely to affect the judgment of that body against their interest. In the course of argument in this

case it was suggested on behalf of the RAT that it would be inappropriate for the Tribunal either to direct the line of

questioning which should be adopted on behalf of the Commissioner or to engage in questioning itself (on the grounds that

such questioning might give rise to an appearance of bias). I am afraid I cannot agree.

If a matter is likely to be important to the determination of the RAT then that matter must be fairly put to the applicant

so that the applicant will have an opportunity to answer it. If that means the matter being put by the Tribunal itself then

an obligation so to do rests upon the Tribunal. Even if, subsequent to a hearing, while the Tribunal member is considering

his or her determination an issue which was not raised, or raised to any significant extent, or sufficient at the hearing

appears to the Tribunal member to be of significant importance to the determination of the Tribunal then there remains an

obligation on the part of the Tribunal to bring that matter to the attention of the applicant so as to afford the applicant

an opportunity to deal with it. This remains the case whether the issue is one concerning facts given in evidence by the

applicant, questions concerning country of origin information which might be addressed either by the applicant or by the

applicant’s advisors or, indeed, legal issues which might be likely only to be addressed by the applicant’s advisors.”

17. It is suggested that the applicant’s mother ought to have been afforded an opportunity to comment on the second named

respondent’s view that because the applicant’s father was against the practice of female genital mutilation, as well as the applicant’s

mother, this reduced the likelihood that the applicant herself would face circumcision if she was to be returned to Nigeria. It is

suggested that the applicant’s mother should have been given an opportunity to comment on this view as it appears to have been a

crucial factor insofar as the second named respondent was concerned. It is also suggested that the second named respondent

appears to have relied on the content of the applicant’s mother’s Refugee Applications Commissioner decision and that the applicant’s

mother was not afforded an opportunity to comment on those matters. It was emphasised that the applicant was entitled to a

separate consideration of her application and it is suggested that she was not provided with the same.

The Respondents’ Submissions

18. The respondent submits that there was no obligation on the part of the Commissioner to put any doubts of the kind mentioned in

the applicant’s submissions to the applicant’s mother in the course of interviewing her in relation to this case. He submits that a

reading of the notes of interview show that the applicant’s mother was given every opportunity to put the case on behalf of the

applicant and was asked relevant questions in relation to her return to Nigeria and in relation to return to Uganda. It is pointed out

that the applicant’s mother was specifically referred to the fact that her husband was against the practice of FGM in the course of

the interview in relation to the present applicant’s case. It was submitted that it would be incredible if reference was not made to this

fact by the Commissioner in the course of his report in the case, particularly in the light of evidence from the applicant’s mother in

both her own claim and in this claim that she and her husband had lived in Lagos and away from her husband’s family for a period of

three years in order inter alia to avoid an alleged threat of circumcision to her.

19. With reference to the Commissioner’s reliance upon or reference to the contents of the applicant’s mother’s RAC decision it was

submitted that it would be extraordinary if the Commissioner did not refer or have some regard to this decision in the facts of this

case. The applicant was after all a three month old child at the time when her mother applied for asylum on her behalf. Furthermore,

the applicant’s claim was in reality inextricably linked with her mother’s claim – also based on a fear of forced FGM from her husband’s

(the present applicant’s father’s) family in Nigeria and persecution by the mother’s family in Uganda because of their disapproval of

the mixed marriage of the applicant’s father and mother. It was submitted that there are no separate or particular facts above and

beyond the facts advanced in the mother’s claim which were advanced in the child’s claim. The respondent submits that the applicant

was in fact afforded a separate and independent consideration of her claim.

Alleged absence of proper analysis by the RAC

The Applicant’s Submissions

20. The applicant has submitted that the recommendation of the second named respondent discloses an absence of any analysis

supporting the conclusion that the applicant’s claim lacks credibility. The court has been referred to the statement of Clarke J. in

Zhuchkova v. Minister for Justice, Equality and Law Reform [2004] IEHC 166, wherein, following Peart J. in Da Silveria v. The Refugee

Appeals Tribunal (Unreported, High Court, 9th July 2004), he stated:-

“There is a wider principle, being the one identified by Peart J when he says that the finding cannot be based simply upon

a gut feeling or a view based on experience or instinct that the truth is not being told. A finding of lack of credibility, it is

at least arguable, must therefore be based on a rational analysis which explains why, in the view of the deciding officer,

the truth has not been told.”

21. It is argued in the appellant’s legal submissions that while credibility is not explicitly addressed by the second named respondent,

it is implicit in the s. 13 report that credibility, in the contextual sense, was considered to be wanting. It is submitted that this finding

on credibility appears to have been based upon the “gut feeling” only of the decision maker rather than on the basis of an analysis of

the evidence before him. It is further submitted that the absence of any or any sufficient analysis of the applicant’s case constitutes

a failure to give reasons for the conclusion that the applicant’s account lacks credibility. There is a further complaint that the

recommendation does not contain reasons sufficient to identify the basis for its adoption.

22. The applicant submits that the decision maker failed to properly employ a forward looking test in the instant case and there was

no proper objective assessment as to what the future might hold for this particular applicant. It is submitted that in applying a

forward looking test in any particular case the decision maker must consider whether the applicant is reasonably likely to face

persecution upon return to her county of origin and also the availability of state protection. It is submitted that the applicant’s

mother’s evidence that protection had been sought in the past and denied was ignored and that a proper assessment of the

applicant’s claim should have included an assessment of the availability of effective state protection. It is further submitted that the

consideration of the availability of protection from NGOs was an irrelevant consideration in the context of the refugee definition. It is

submitted that the establishment of the existence of laws in either Uganda or Nigeria that might protect the applicant was insufficient

in itself, there also needed to be a consideration of the effectiveness of those laws and this aspect of the matter was not examined

or considered.

The Respondent’s Submissions

23. The respondent submits that the basis upon which the applicant’s claim was rejected by the Commissioner is clear and cogent

from a reading of the section 13(1)report and that it was based upon a rational analysis of the evidence before him and not on a gut

feeling. The respondent points out that in reaching his conclusion the decision maker was cognisant of the rejection of the applicant’s

mother’s claim of a fear of persecution for similar reasons and furthermore of the facts that -

(1) there are NGOs in Nigeria who assist women who do not wish to undergo circumcision;

(2) there is legislation in Nigeria outlawing female circumcision and

(3) the fact that the family has previously lived in Nigeria without the mother being subjected to FGM and the fact that

the child’s father was against FGM.

24. It was further submitted that the decision in relation to the alleged fears of persecution if the applicant were to be returned to

Uganda are clearly set out at para. 4.3 of the report where reference was made to freedom to practice religion under the Ugandan

constitution (a matter specifically referred to in the interview in this infant applicant’s case) and the fact that Uganda was a large

and densely populated country and therefore internal relocation was an option. The respondent submits that there was a full and

detailed analysis of this applicant’s particular claim.

Alleged Failure to have regard to the terms of the UNHCR Handbook

The Applicant’s Submissions

25. The complaint under this heading is that there was a failure on the part of the second named respondent to carry out any proper

objective assessment of the applicant’s claim in the context of what is known about the country of origin. In fact, in this particular

case, we are talking about countries of origin plural, namely Nigeria and Uganda. It is clear from the applicant’s written submissions,

and indeed the arguments put before me in court, that reliance is placed on those portions of the UNHCR Handbook which have been

expressly approved of and adopted as representing the appropriate procedure by the Superior Courts in this country. In particular

McGuinness J., speaking for the Supreme Court-- in V.Z. v. The Minister for Justice [2002] 2 I.R. 135 adopted with approval paras. 37

– 42 of the UNHCR Handbook. Further, para 196 of the UNHCR Handbook in a section entitled “Establishing Facts” asserts that:-

“While the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is

shared between the applicant and the examiner.”

26. This was adopted and approved as a correct statement or principle by McGuinness J. in V.Z. v. The Minister for Justice. The

applicant contends in the written submissions filed on her behalf that there was a failure on the part of the second named respondent

to consult relevant country of origin information and to consider same. In argument before me it was suggested that there had been

selective reliance upon such country of origin information as was consulted and, indeed, the court of its own motion raised certain

issues and expressed certain concerns about the way in which the country of origin information was used in this case.

The Respondent’s Submissions

27. The respondent submits that the applicant’s complaint under this heading is not made out. The respondent points out that there

are several references in the papers before the court (which were all before the commissioner when making his decision) which refer

to objective country of origin evidence. In addition, the applicant’s mother, both in the course of the interview in relation to her own

application and the interview in relation to her infant daughters application, was referred to and invited to comment upon country of

origin information in relation to both Uganda and Nigeria.

Decision

Preliminary issue

28. I am sympathetic to the arguments made by the respondents to the effect that the applicant ought to have proceeded with her

appeal against the report and recommendation of the second named respondent to the Refugee Appeals Tribunal rather than invoking

the jurisdiction of the High Court by way of judicial review for the purpose of having it quashed by order of certiorari. If I felt that the

applicant had established substantial grounds for believing that the RACs report and recommendation ought to be quashed by reason

of a want of fair procedures, alternatively for error of law vitiating jurisdiction, alternatively on the basis of reliance upon a serious

error of fact, I would have been disposed to grant leave to apply for judicial review. However, certiorari is always a discretionary

remedy. This is a borderline case and I have decided in the exercise of my discretion not to grant leave to apply in the circumstances

of this case because of the availability of the alternative remedy of an appeal to the Refugee Appeals Tribunal. I have concerns about

aspects of the Refugee Applications Commissioner’s report and recommendation, but I think that these particular concerns could best

be addressed within the context of the appeals process and on the basis that the appeal in this case will involve a complete rehearing

and reassessment of the evidence.

The Substantive Issues

29. Though it has not necessary for me to determine these issues for the purposes of the decision that I have made, it is

nevertheless appropriate that I should briefly express some views on the issues raised in amplification of my reasons for exercising my

discretion in the way that I have done.

Alleged Want of Fair Procedures

30. I was not greatly impressed with the arguments put forward by the applicant with respect to want of fair procedures and in

particular the suggestion that certain matters should have been specifically put to the applicant’s mother. I do not consider that

there is anything in this point and I am inclined to accept the submissions of the respondents with respect to it.

Alleged absence of proper analysis by the RAC

31. I was somewhat more concerned about what I would consider to be possibly valid criticisms of the analysis of the evidence by the

Refugee Applications Commissioner in the light of what was known about the country of origin. I was also somewhat concerned about

seeming deficiencies or shortcomings in the country of origin information that, prima facie, could have been readily addressed.

32. I have already commented on the unsatisfactory manner of presentation of the country of origin information to which resort was

had in this case and I do not propose to say any more about that. However, among the concerns that were raised by the court was

the second named respondent’s apparent reliance on “Legislation in Nigeria outlawing female circumcision”. Nigeria is a Federal State.

It is clear from the country of origin information relied upon that there is no federal law outlawing female genital mutilation (FGM). The

position with respect to state law is less clear. It seems that while such legislation exists in some states within Nigeria it does not

exist in all states. While the section 11 questionnaire established that the applicant’s mother had resided in Lagos, there does not

appear to have been any attempt to establish within what state Lagos is situate, and whether that particular state has legislation

outlawing FGM. Moreover, the information that was relied upon contains the express statement that FGM “is a predominant

phenomenon in the middle belt and in the south west”. Now Lagos is situated in the south west of Nigeria.

33. While it is recognised that it might be suggested that it is open to the applicant and her parents to go to live in a state within

Nigeria in which there is legislation outlawing FGM there might or might not be real difficulty in that regard. It is futile to speculate on

this, but the point ought to be made that it does not appear to have been specifically suggested to the applicant’s mother that the

possibility of re-locating from Lagos to another part of Nigeria was an option open to her nor is that specifically suggested in the

section 13 report. Rather, she was simply asked “if she was aware of legislation in Nigeria outlawing female circumcision” and great

reliance was placed on her apparent disavowal of knowledge of the existence of such legislation. The questions must be posed as to

whether any valid inferences could be drawn from that answer in the light of the particular question that was asked and the little we

know about legislation in Nigeria; and whether the view that was taken by the RAC, based upon the answer given, was justified and

constituted an appropriate inference in all the circumstances. I have the gravest of doubts in that regard, but this is clearly a matter

that can be addressed in the context of a re-hearing of the matter on appeal.

34. I had another concern arising out of the fact that the information relied upon suggested that young or new born girls are at a

much higher risk of being subjected to FGM than adolescent or adult women. This particular fact significantly differentiates this

applicant’s case from her mother’s case in terms of possible risk faced. I was particularly concerned about the absence in the

Commissioner’s Report and Recommendation of any allusion whatsoever to the increased risk faced by an infant of possibly being

subjected to FGM compared to the risk faced by an adolescent or adult woman. The report does not provide any basis for believing

that there was an engagement with that very important circumstance which is clearly stated in the Country of Origin report exhibited

in the first Appendix to the section 13 report.

35. I have already expressed criticisms about the inadequacy of the country of origin information relied upon with respect to Uganda.

The only country of origin information relied upon apparently was a single article from the Ugandan Constitution, considered in

isolation and in an un-contextualised way. I regard this as wholly inadequate. For example, in the article relied upon, the right to

freedom of religion is expressed in terms that:

“29(1) Every person shall have the right to -

(c) freedom to practise any religion and manifest such practice which shall include the right to belong to and

participate in the practices of any religious body or organisation in a manner consistent with this Constitution”

36. An obvious question arises as to what is meant by the words “in a manner consistent with this Constitution”? How can that be

determined without reading the Constitution as a whole?

37. Moreover, to the extent that the decision maker seems to have been of the view, based upon the right to freedom of movement

also guaranteed in article 29 of the Ugandan Constitution, and covered by the extract relied upon, that the applicant’s family could

live in another part of Uganda away from the mother’s family, this seems to ignore the fact that, unlike freedom of religion which is

said to extend to “every person”, the right to freedom of movement only appears to extend to “every Ugandan”, and therefore would

not extend to the applicant’s father.

38. Clearly, only very very limited inferences were capable of being drawn on the basis of the single article reproduced in the second

appendix to the s. 13 report. Yet, sweeping inferences were ostensibly drawn concerning the availability and effectiveness of

Ugandan state protection on the basis of the existence of this single article in the Ugandan Constitution.

Non Compliance with the UNHCR Handbook

39. I find it inconceivable that at least basic information about Uganda and its legal system would not have been obtainable by the

RAC. While I acknowledge that the burden of proof in principle rests on the applicant, it is also the case that the duty to ascertain

and evaluate relevant facts is shared between the applicant and the RAC. The RAC has significantly greater resources than the

applicant in terms of access to country of origin information. It is known that both the RAC and the RAT have an extensive library of

country of origin information as well as access to reliable on line sources of country of origin information. It was surely possible to

access and exhibit a meaningful picture of Ugandan society and its legal system for the purposes of a meaningful appraisal of the

availability of state protection. On the evidence before me the country of origin information resorted to by the RAC with respect to

Uganda was significantly deficient and inadequate and could not possibly have justified the inference purportedly drawn from it namely

that “the applicant and her mother and father would therefore have the option of returning to Uganda as an alternative to going to

Nigeria”. It might well be true that that is a viable option for them but the inference that that is so was simply incapable of being

drawn on the information available to the RAC as disclosed in the papers before me. However, the remedy of an appeal will offer

opportunities to both sides to urge the re-appraisal of existing evidence and, perhaps, consideration of additional evidence.

40. This Court will adopt with approval the following statement contained in the Refugee in International Law (3rd Ed) by Professor

Guy Goodwin Gill and Jane McAdam, concerning the proper and appropriate use of country of origin information. The authors state at

p. 546 of their text:-

“There can be no doubting the value of accurate, in depth, up to date and trustworthy information in the refugee

determination context. For example, refugees may have fled the country as a result of counter insurgency operations.

The fuller picture will show the historical origins of the conflict, such as resistance to dispossession of historical land

rights; the protagonists (such as the military, representing a dominant or indigenous elite); the policies (such as

institutionalised or systemic discrimination against particular ethnic, linguistic, religious, or economic groups or classes);

and the tactics (such as the abduction, torture and arbitrary killing of group representatives). A complete picture will

never be available, but a comprehensive approach will contribute significantly to identifying refugee related reasons for

flight. Knowing past patterns and present conditions enables one to make reasonably accurate predictions about the

future; about the way certain elements are likely to react and interact; and therefore about the degree of security

awaiting those returned or returning to their country of origin.

Documentary evidence, particularly electronically accessible country reports, has a seductive air, often seeming sufficient

to decide the case. But like any other material, documentary evidence must still be accessed and put in context, whether

it relates personally to the claimant, or to conditions in the country of origin. Information of the latter kind often gives

only a general impression, more or less detailed as to what is going on. Like the refugee determination process itself, it

has the artificial quality of freezing time, in a way which can lead to single events acquiring greater significance than is

their due. Situations remain fluid, however. Recognising that, and drawing the right sorts of inference from evidence

acknowledged as credible and trustworthy, are nevertheless the hallmark of sound decisions.”

41. It is clear from the above, that country of origin information can present a valid and legitimate basis for the drawing of inferences

concerning issues like the availability of state protection. However, for such inferences to be legitimately drawn the conclusions

arrived at must be logically derivable from the assumed or known, they must be based on evidence and be reasonably open to the

decision maker. It seems to me that certain of the inferences purportedly drawn on the basis of the limited country of origin

information utilised in this case are difficult to rationalise or justify. In the opinion of this Court in order to provide a proper basis for

the drawing of relevant inferences significantly further and better enquiries ought to have been made by the RAC concerning the

social and legal situation in Nigeria, and in Uganda in particular, and the fact that this was not done represents, on one view of it, a

missed opportunity. Fortunately, it is something that can be remedied readily on appeal.

42. In conclusion, I propose to dismiss the application for leave to apply for judicial review. As previously stated, it has been a

borderline case as to whether I would or would not grant the applicant the leave that she has sought. In all the circumstances I

propose to exercise my discretion to deviate from the normal rule whereby costs should follow the event and to make no order as to

costs.