High Court dismisses judicial review of Refugee Appeals Tribunal decision denying refugee status to Nigerian minors.

Neutral Citation Number: [2008] IEHC 363

THE HIGH COURT

2006 1096 JR

BETWEEN

N. F. M., F. A. M. (A MINOR, SUING BY HER MOTHER AND NEXT FRIEND, N. F. M.), M. O. M. (A MINOR, SUING BY HIS MOTHER

AND NEXT FRIEND, N. F. M.), AND S. O. M. (A MINOR, SUING BY HIS MOTHER AND NEXT FRIEND, N.F.M.)

APPLICANTS

AND

THE REFUGEE APPEALS TRIBUNAL AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

Judgment of Mr. Justice Hedigan, delivered on the 21st day of November, 2008

1. The applicants are seeking an order of certiorari quashing the decision of the Refugee Appeals Tribunal (RAT), dated 22nd August,

2006, to affirm the earlier recommendation of the Office of the Refugee Applications Commissioner (ORAC) that the applicants should

not be declared refugees. Leave was granted to the applicants to seek judicial review by Hanna J. on 29th May, 2008.

Factual Background

2. The first named applicant, who is a national of Nigeria, is a Muslim and a member of the Yoruba tribe. She is a sociologist by

profession and she ran her own business in Nigeria. She is the mother of the second, third and fourth named applicants, who are also

nationals of Nigeria. The second named applicant is now 14 years of age; she was the first named applicant’s first-born daughter. Her

brothers, the third and fourth named applicants, are now 12 and 6 years of age, respectively.

3. It is common case that the second named applicant has been circumcised. The first named applicant claims that she lost her

second and third daughters in 1999 and 2001, respectively, when, at the age of seven months, circumcision and tribal markings were

perpetrated upon them. She says that she reported the first death to the police in 1999, but was told that they could not intervene

as it was a family matter and related to the family’s cultural beliefs. She also says that in June, 2001, her brother-in-law’s wife was

killed by her husband’s family when she attempted to prevent tribal marks being placed on her children.

4. The first named applicant says that in October, 2003, the first named applicant’s husband was taken away by his family to prepare

for the circumcision and tribal marking of his first-born son (the third named applicant) in order to identify his royal lineage; the child

was then approaching his seventh birthday. Fearing that what had happened to her daughters would reoccur, the first named

applicant sold her business and fled with her children in November, 2003. She says that in December, 2003, she was raped by her

husband’s friend and two other men. She did not report the rape or her fears in respect of the circumcision and marking of her son to

the police; instead, she and her children made arrangements to leave Nigeria.

Procedural Background: The ORAC Stage

5. The applicants arrived in Ireland in January, 2004, and the first named applicant made an application for asylum on their behalf to

the Office of the Refugee Applications Commissioner (ORAC). In her ORAC questionnaire she stated that her children’s lives were being

threatened owing to tribal marks and circumcision, which are compulsory at the age of 7 years for the first male born into her

husband’s family and which had resulted in the death of two of her baby daughters in the past.

6. The first named applicant attended for interview with an authorised ORAC officer on 2nd February, 2004. It is noteworthy that she

said (at p.9) that she was not certain what had caused the death of her second daughter, but she thought it was a result of a loss

of blood after the circumcision and she said (at p.10) that the third eldest daughter had died from an infected wound as a result of

tribal marking. She also said (at p.15) that she and her husband were powerless in respect of the circumcision and marking of her

daughters, even though neither of them supported the practice, and (at p.25) that she had not sought to prevent the circumcision

and marking of her third daughter because she thought her second daughter might have died accidentally. A report was compiled in

compliance with section 13 of the Refugee Act 1996, dated 16th February, 2004, wherein the ORAC officer drew a number of negative

credibility findings, concluded that the applicants had failed to establish a well-founded fear of persecution, and recommended that

they should not be declared refugees.

The RAT Stage

7. The applicants appealed from the ORAC decision to the Refugee Appeals Tribunal (RAT). With their Notice of Appeal, dated 2nd

March, 2004, they submitted a booklet of documentation, including inter alia birth certificates, medical reports, certificates recording

the cause of death of the second and third daughters, a police report detailing the complaint made by the first named applicant in

July, 1999, and 14 documents comprising country of origin information (COI). The majority of the COI submitted consists of

“Responses to Information Requests” (RIRs) which are compiled by the Immigration and Refugee Board of Canada (IRB) in response to

queries submitted to the Research Directorate of the IRB in the course of the refugee protection determination process.

8. The oral hearing that is relevant to the present challenge was held on 6th June, 2006. The first and second named applicants gave

evidence; the first named applicant, in particular, was questioned about a number of aspects of her claim. It is noteworthy that the

applicants were legally represented at the hearing. Having been so requested at the hearing, the first named applicant forwarded to

the Tribunal two medical reports confirming the circumcision, one by a GP dated 12th June, 2006, and the second by a Consultant

Paediatrician, dated 14th July, 2006.

The RAT Decision

9. In her decision, dated 22nd August, 2006, the Tribunal Member pointed out a number of inconsistencies in the first named

applicant’s account of events. It does not seem that the decision ultimately turned on any of these discrepancies.

10. After discussing the law, the Tribunal Member stated that “it is not accepted that there is a genuine subjective fear for the

following reasons”, and then made credibility findings as to the death of the baby girls and the risk to the third named applicant of

circumcision and tribal marking. Thereafter, reiterating that she did not accept as credible the applicants’ “core story”, she also drew

negative credibility findings in respect of the rape claim and the fact that it was not reported to the police. Ultimately, the Tribunal

Member found that State protection might reasonably have been forthcoming in respect of rape, circumcision, or tribal marking, and

she affirmed the earlier ORAC decision.

The Applicants' Submissions

11. The applicants’ primary complaints in relation to the Tribunal Member’s decision may be summarised as follows:-

a. Flawed assessment of credibility;

b. Failure to comply with section 16(8) of the Refugee Act 1996;

c. Flawed assessment of State Protection.

(a) Assessment of Credibility

12. The Tribunal Member stated as follows with respect to the claim that two daughters had been lost to the practices of

circumcision and tribal marking:-

“It was put to the applicant that country of origin information indicates that parents can veto such procedures as

circumcision and indeed tribal markings if they so wish, however she stated that the children belong to the father and not

the mother and in any event it cannot be vetoed because it is to do with the rite of royal blood. There was no country of

origin information submitted which indicates that this is in fact the case. It is well known generally that in cases of

circumcision mothers can veto such a procedure. In the instant case both parents were opposed to this and therefore it

is not accepted that preventing such a procedures occurring was not possible / is not possible should parents / mothers

wish to prevent this.” (emphasis added)

13. The applicants complain that this finding was made without an evidential basis and that it flies in the face of the COI submitted

with the Notice of Appeal; it is also noted that no additional COI was disclosed by the Tribunal Member. The same complaints are

levied in respect of the Tribunal Member’s later conclusion that there is no objective COI to indicate that male circumcision occurs,

that it is up to a parent whether a child is given facial markings, and that male circumcision occurs at the behest of parents; it is said

that there is no evidential basis for those findings.

14. It is contended that far from indicating that parents can veto the practice of circumcision, the documentation submitted by the

applicants with their Notice of Appeal indicates the prevalence of FGM in Nigeria. Reference is made to an RIR compiled by the IRB in

November, 2003, entitled Nigeria: Current information on the practice of FGM, which records that although the prevalence of FGM in

Nigeria is declining, it remains widespread, with various surveys indicating that between 25 to 60% of women have been affected,

depending on ethnicity and geographical location. The applicants also point to a US Department of State report on FGM in Nigeria,

dated June, 2001, which records that about 60% of the nation’s total female population has undergone one of the four forms of FGM.

Reference is also made to a further RIR compiled by the IRB in October, 2002, which records that facial scarification is practiced by

Yoruba to identify the ethnic group, town or family.

15. It is contended that the only section that might have supported the Tribunal Member’s contention as to the mother’s power of

veto was in an RIR compiled by the IRB in February, 2003, entitled Nigeria: FGM practices among the Yoruba ethnic group and the

consequences of refusal for parents, which states as follows:-

“Reference to the consequences faced by parents who refuse to have their daughters undergo FGM could not be found

among the sources consulted …”

16. The applicants point out that the same RIR records that in 1995, 90% of the Yoruba ethnic group who live in south-west Nigeria

practiced FGM, albeit that the RIR also records that the practice has since begun to decline, that there was a reduction in associated

ceremonies, and that there was increasing medicalisation and indigenous secular campaigning based on the provision of information.

17. The applicants also point out that when it was put to her at the oral hearing that COI indicates that parents have a veto, the

first named applicant explained that no such veto is available in relation to her children because the practices are designed to indicate

the royal lineage of her husband’s family.

18. The applicants complain that the Tribunal Member’s findings in this regard go to the heart of her decision to reject what she saw

as the applicants’ “core story”, i.e. with respect to FGM, male circumcision and tribal markings. It is contended that this impacts on

any application they may make in the future, i.e. seeking leave to remain in the State or applying for subsidiary protection. This,

according to the applicants, heightens the degree to which the applicants are prejudiced by the alleged errors.

(b) Section 16(8)

19. Section 16(8) of the Refugee Act 1996 states that:-

“The Tribunal shall furnish the applicant concerned and his or her solicitor (if known) … with copies of any reports,

observations, or representations in writing or any other document, furnished to the Tribunal by the Commissioner copies of

which have not been previously furnished to the applicant … and an indication in writing of the nature and source of any

other information relating to the appeal which has come to the notice of the Tribunal in the course of an appeal under this

section.”

20. It is submitted that if the Tribunal Member was seeking to rely on COI outside of that submitted with the Notice of Appeal in order

to substantiate her assertion as to the power of veto, she was obliged under section 16(8) to disclose such COI to the applicants,

but did not do so. Reliance is placed on Olatunji v The Refugee Appeals Tribunal [2006] IEHC 113, where Finlay Geoghegan J. held as

follows:-

“The obligation in s.16 is a mandatory obligation. The obligation would appear to include all information relevant to the

appeal.”

(c) State Protection

21. Having rejected as incredible the first named applicant’s claim that she was raped but did not report the rape to the police, the

Tribunal Member noted as follows:-

“Even if it did occur, rape is not a family matter […]. Rape is a criminal offence in Nigeria as it is in all democracies.

Sanctions are in place to deal with such crimes. While it is accepted that there is a level of corruption and inefficiency in

the police force in Nigeria and the system is an imperfect one in need of serious overhaul, the State is not required to

provide perfect protection. What is required is a reasonable willingness to detect and prosecute criminals. […] Country of

origin information submitted by the applicant indicates the deficiencies in the system but also indicates an over

zealousness by the police force when dealing with criminals … but it does not indicate that there would be a refusal to

investigate a complaint if one were made.”

22. The applicants contend that the Tribunal Member erred in this regard as FGM and male circumcision are not outlawed in Nigeria.

Reliance is placed on Imoh v The Refugee Appeals Tribunal [2005] IEHC 220, where Clarke J. held:-

“It is difficult to understand the references on both occasions by the RAT to police protection. The evidence suggests

that female genital mutilation is not unlawful in Lagos. In those circumstances it is difficult to see how there could have

been expected to be any protection available from the police of which, it might be suggested, the applicant could have

availed. In those circumstances it seems to me to be at least arguable that the decision maker was in error in concluding

that there would have been any point in police protection on the basis of the evidence before her.”

23. The applicants further contend that the COI submitted by the applicants indicates that the police force in Nigeria is corrupt,

ineffective and unable to provide protection. In this regard, reference is made to a RIR compiled by the IRB in March, 2000, entitled

General Perceptions of the Police and Security.

The Respondents' Submissions

24. The respondents contend that the applicants have failed to provide objective COI to substantiate their claims and to thereby

discharge the burden of proof.

(a) Assessment of Credibility

25. The respondents submit that it was open to the Tribunal Member to remark, as she did, that it is “well known generally” that

parents can veto circumcision and tribal markings. This argument is advanced on two bases: first, that there is an evidential basis for

the assertion in the COI submitted by the applicants with their Notice of Appeal; and secondly, that the Tribunal Member is entitled to

curial deference and to rely on her general body of knowledge.

26. The respondents argue that it is clear from the COI submitted by the applicants with their Notice of Appeal that parents play a

role in the circumcision and marking of their children. Reference has been made to a series of paragraphs in a number of the COI

documents that were before the Tribunal Member. The respondents contend that there is no ambiguity in the highlighted paragraphs.

The applicants submit, in reply, that it cannot be inferred from this information that there was a veto available.

27. Further or in the alternative, the respondents contend that the Tribunal Member is entitled to curial deference in the sense that

she was entitled to use her general body of knowledge in relation to conditions in Nigeria. Reliance is placed, in this regard, on Okeke

v The Minister for Justice, Equality and Law Reform [2006] IEHC 46, in which Peart J. held that the principle of curial deference allows

the High Court to afford to the Tribunal a measure of appreciation, and was a matter to which weight could be given, particularly

where the applicant had failed to produce any evidence as to why she could not have internally relocated. He continued:-

“Clearly the Tribunal is entitled to the assumption that it is generally aware of the size and population of Nigeria, as well

as the general political situation, and the nature and extent of the state protection authorities which exist in that State.”

28. The respondents submit that this principle was approved and applied by this Court in O.S. v The Refugee Appeals Tribunal [2008]

IEHC 342, where it was held:-

“There can be no objection to a decision-maker relying on knowledge acquired in the course of their training and

experience. … It would be irrational if decision-makers were precluded from relying on objective information with which

they gain familiarity through their work.”

29. The respondents further contend that it is, in fact, “generally well known” that parents can oppose the practice of FGM. Reliance

is placed on O.A.A. v The Refugee Appeals Tribunal [2007] IEHC 169, where Feeney J. noted (at paragraph 4.4) that:-

“The country of origin information indicated that mothers of young daughters were able to veto FGM if they were opposed

to it and all the more so if their husbands were against it.”

(b) Section 16(8)

30. The respondents contend that the Tribunal Member relied only on the COI put into the asylum process by the first named

applicant herself; no further COI was relied on and the requirements of section 16(8) do not, therefore, arise.

(c) Assessment of State Protection

31. The respondents submit that the availability of State protection in respect of FGM is addressed in an IRB Report entitled Nigeria:

Current information on the practice of FGM; state protection to those being targeted, dated November, 2003, where it is noted that

although there was, as yet, no federal law criminalising the practice, a bill outlawing the practice had been passed by the lower House

of the National Assembly and was before the Upper House; moreover, eight states had passed laws prohibiting the practice. The IRB

report also records that the Federal Minister of Health had – in May, 2003 – announced a national policy and plan of action on the

elimination of FGM, which was approved by the Federal Executive Council; furthermore, the Government Minister of Women Affairs and

Youth Development was pushing for legislation, and 13 NGOs had formed a national coalition with a view to continuing their efforts to

eradicate the practice.

32. Furthermore, in reply to the applicants’ submission that male circumcision and tribal marking is not outlawed, the respondents

contend that forcible circumcision or marking would amount to an assault, which is outlawed and in respect of which COI suggests

State protection would be available. Reference is made to an RIR compiled by the IRB in March, 2000, entitled General Perceptions of

the Police and Security, which, under the heading “Taking a Complaint to the Police”, cites correspondence with the Executive

Director of the Centre for Responsive Politics in Port Harcourt (Mr. Walson-Jack), to the effect that in relation to cults and

educational institutions:-

“To the best of my knowledge, reports of threat to violence, threat to life, maim or harm, are promptly dealt with by the

Police. The Nigeria Police Force itself has several layers and branches that citizens dissatisfied with investigations and

actions by one branch could request and get cases transferred to other branches.”

33. The context in which Mr Walson-Jack made the above observations was discussed in G.O.B. v The Minister for Justice, Equality

and Law Reform [2008] IEHC 229. Birmingham J. held that even though there was some ambiguity as to whether the observations

were quoted out of context, it was open to the Tribunal Member to take account of the observations as set out in the RIR,

particularly in light of the fact that the decision-makers were not coming blind to the question of State protection in Nigeria, having

dealt with “a great number of other cases” on the same question and having “acquired a broad familiarity with the general perception

of the Nigerian police force.”

34. Reliance is also placed on Kvaratskhelia v The Refugee Appeals Tribunal [2006] IEHC 132, in which Herbert J. found the principles

applicable to State protection as set out in Canada (AG) v Ward [1993] 2 SCR 689 to be “both persuasive and compatible with the

jurisprudence of this State”.

The Court's Assessment

35. As to the appropriate standard of judicial review, I would reiterate that whether or not the term “anxious scrutiny” is considered

appropriate, this Court will continue to be very careful and thorough when reviewing decisions that potentially impact upon human and

constitutional rights.

(a) Assessment of Credibility

36. I am of the view that there is, in the COI that was before her, a sufficient evidential basis for the Tribunal Member’s remark as to

the role of parents with respect to circumcision and tribal marking. In its RIR of November, 2003, the IRB cites statistics as to the

“percentage of women who … reported to have at least one daughter circumcised or who say that they intend to have their

daughters circumcised”. The IRB also makes reference to “those parents who do not believe in the supposed benefits of the practice”,

albeit that it goes on to state that even those parents “have to subject their children to female genital mutilation to ensure their

acceptability in the society and improve their chances of marriage.”

37. In the RIR compiled by the IRB in February, 2003, it is noted as follows:-

“Reference to the consequences faced by parents who refuse to have their daughters undergo FGM could not be found

among the sources consulted …”

38. A further RIR compiled by the IRB in May, 2003, entitled Tribal and traditional family marks of Yoruba living in the Republic of

Benin, notes that the Minister Counsellor for Economics in the High Commission of Nigeria in Ottawa “was not aware of consequences

for refusing to be marked.”

39. A report from the Jehovah’s Witnesses official website entitled Facial Marks - Nigeria’s Failing Identity Card, dated January, 1999,

tells the story of a parent who resisted having his child tribally marked. Therein, it is noted that parents “must decide whether to

mark their children” and that today, for “more and more parents”, the traditional reasons for tribal marking “are not compelling”. It

continues:-

“Even among those who are proud of their marks, comparatively few risk the tribal surgeon’s knife on the faces of their

children. This is especially true in cities. The pain and the risk of infection along with the scorn and discrimination the child

may face later in life are all factors that make parents reject facial marking. Clearly, the popularity and acceptance of

facial marks are fading fast.”

40. The above, in my view, constitutes a clear evidential basis upon which the Tribunal Member could have based her remark as to

the parents’ role. While it may, indeed, have been preferable for the Tribunal Member to refer expressly to the country of origin

information from which she drew her general knowledge as to the role of parents in preventing traditional practices, it cannot be said

that the absence of such an express reference amounts to a breach of fair procedures in circumstances where there is a clear

evidential basis for her conclusion in the COI that was before her. I must also bear in mind the established principle that this Court

must be careful not to substitute its own view for that of the Tribunal Member, and that it is immaterial whether this Court agrees

with the assessment of credibility carried out by the Tribunal Member provided that the assessment was rational and reasonable,

grounded in objective COI, and reached in accordance with fair procedures.

(b) Section 16(8)

41. In the light of the finding that there was a clear evidential basis for the Tribunal Member’s remarks in the COI before her, it is

clear that there was no breach of section 16(8).

(c) State Protection

42. In the case of Canada (AG) v Ward [1993] 2 SCR 689, the Supreme Court of Canada held that in the absence of clear and

convincing proof that a State is unable to protect its citizens and absent a complete breakdown of State apparatus, it is to be

presumed that State protection is available. This principle has been cited with approval in a number of Irish decisions (see e.g. G.O.B.

v The Minister for Justice, Equality and Law Reform [2008] IEHC 229).

43. I am not satisfied that clear and convincing evidence has been adduced by the applicants in the present case that the protection

of the Nigerian State might not reasonably be forthcoming if they were to return and the third named applicant was threatened with

forcible circumcision and/or markings. The evidence that was before the Tribunal Member was that although the police force is

imperfect, a level of protection is, indeed, available where complaints are made in respect of criminal offences. As noted by the

respondents, forcible circumcision and the forcible marking of a child would fall within the realm of an assault, which is outlawed.

Moreover, there is clearly no breakdown of the State apparatus in Nigeria in the terms set out in Ward such that the presumption of

State protection would be undermined.

44. Furthermore, as was noted by Birmingham J. in G.O.B., the applicants are in a particularly poor position to complain, given that

apart from the complaint made in July, 1999, they did not seek State protection before deciding to flee. This, of course, is not, of

itself, evidence that State protection was not available, but it is nevertheless a factor to be weighed in the balance.

45. In the light of the foregoing, I am satisfied that it was open to the Tribunal Member to conclude, as she did, that State protection

might reasonably be forthcoming, if sought.

Conclusion

46. In the circumstances, I am satisfied that the Tribunal Member did not err in reaching the conclusions that she did; rather, she

acted rationally and reasonably and in accordance with fair procedures. Accordingly, I must refuse the reliefs sought.