High Court dismisses judicial review of Refugee Applications Commissioner decision due to available statutory appeal route.

Neutral Citation Number: [2008] IEHC 418

THE HIGH COURT

JUDICIAL REVIEW

2006 974 JR

BETWEEN

V. C. E.

APPLICANT

AND

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

RESPONDENTS

Judgment of Ms. Justice Clark delivered on the 18th day of November, 2008.

This is an application for leave to appeal by way of judicial review a decision of the Refugee Applications Commissioner.

Facts relied upon

1. The applicant asserts that she is a Nigerian citizen from Edo State born on the 10th December, 1977. She says that she is a sales

assistant for an investment company. Her English is fluent and she comes from a Christian family. She claims that she arrived in the

State on the 27th February, 2006, by ship. She brought her birth certificate with her. She came to the State seeking refugee status

because, as she says in her application form:-

“I was chosen among the girls to be circumcised in my village. I refused because I was scared of the pains, bleeding and

it was not safe for me and my baby, so the elders of the village got angry with my parents and sent a letter to them that

they should get me prepared within seven days for the ceremony because it is forbidden to the gods of the land if I don’t

do it or else I would be forced to do it. I happened to be the one to read the letter for my parents so very early the next

morning I ran away from home to the next town near the city where I met a man, Alahaji, who hid me in the house for

two days and then advised me that I am not safe in the country.”

2. She says that Alahaji then at his own expense organised her travel with her unborn baby to Ireland. In her application form she

stated the consequences that would follow if she were to return to Nigeria:-

“I will be stoned to death because the villagers believe that I have defied the land for refusing circumcision. The shrine

(Ohie) which is the god requires blood for cleansing; and if I am not available a member of my family has to replace me,

except I agree to do the circumcision.”

3. It is claimed that Alahaji took her to some people in the port of Lagos. She saw him giving money to one of the men but she didn’t

know how much. It took about three weeks to arrive in Ireland. She was given a red passport to hold in case she was checked and it

was taken from her by the man Alahaji introduced her to.

The interview

4. The applicant’s son was born in the State in April, 2006 and on the 1st July, 2006 the applicant was interviewed on the contents of

her application form. She was questioned about female genital mutilation (“FGM”) and whether she could consider relocating to avoid

the elders of the village who selected her for female circumcision. It was specifically put to her that many reliable authorities say that

it is possible to avoid FGM by seeking aid from various Non Governmental Organisations opposed to the practice or to relocate to

other parts of the country, especially to Lagos. The BAOBAB organisation which provides support for those fleeing FGM was

specifically referred to. The applicant’s response was that the village elders would find her no matter where she went in Nigeria and

she dismissed the idea that BAOBAB would be of any assistance to her. The interviewer said to her there is a law against FGM in Edo

State where she lives and queried obtaining protection from the police. The response was:-

“Never. The Nigerian police take bribes; they wouldn’t do anything because it is tradition.”

She was then asked could she have moved to somewhere else within Nigeria to avoid being circumcised. She answered:-

“I did it before. I told you that when I was in Ogun State, they came looking for me. There is no place to hide in Nigeria.

They would locate me anywhere in Nigeria.”

She did not accept that any non-Governmental organisations could provide protection for women escaping female circumcision

saying:-

“In Nigeria you can forget about protection. If you have a problem, it is you who must deal with it. There is no

Government or police protection. The more you report the more you expose yourself and the more problems you will

have.”

5. The applicant failed to be considered a refugee. The Commissioner’s report prepared pursuant to s. 13(1) of the Refugee Act 1996

as amended concluded that:-

“the applicant’s contention that protection against FGM was not available to her in Nigeria and that she could not have

evaded this procedure through normal internal relocation appears to run counter to country of origin information. On the

basis of this information, I do not consider that there is a reasonable degree of likelihood that she has a well founded fear

of persecution in Nigeria.”

6. The applicant seeks leave to quash this decision by an order of certiorari on the basis of lack of fair procedures. In the written

submissions, the ground for this argument was that the information relied on by the Commissioner in his decision was not put to the

applicant. However, this argument was not pursued in the application before me. The applicant relied solely on the assertion that the

onus was on the Office of the Refugee Applications Commissioner (“ORAC”) to identify a location where the applicant would be safe

from the risk of FGM. It was argued that the failure to identify a specific safe location was in breach of the guidelines on international

protection in relation to internal flight or relocation as set out by the United Nations High Commissioner for Refugees (“UNHCR”) and

that the burden of proving that there was a specifically identified safe place to relocate was on the Commissioner.

7. The applicant further asserted that the procedure by which her application for refugee status was dealt with was so defective that

it would be inappropriate for the case to proceed as an appeal before the Refugee Appeals Tribunal and that in accordance with the

Supreme Court decision in Stefan v Minister for Justice [2001] 4 I.R. 203, she should be permitted to challenge the decision of the

Refugee Applications Commissioner.

8. Ms. Rosario Boyle S.C., counsel for the applicant, based her case on the premise that credibility was not in issue and that the

applicant’s case of persecution had been proved and that her application had been rejected on the basis of findings contained in

country of origin reports.

9. Ms. Ann Hartnett O’Connor B.L., for the respondent, argues that while the applicant was not shown the actual country of origin

documentation, the information and the source of the documentation was specifically put to her. Any additional country information

which was referred in the s. 13(1) report is essentially repetitive of reports which were put to the applicant during the course of the

interview. The respondent had clearly consulted a number of sources before the interview which all indicated that internal relocation

was an option for those wishing to avoid FGM and he had put this information to the applicant. She argued that even if the applicant

had established a genuine fear of persecution, if relocation within her country was an option to avoid that persecution, then she was

not in need of international protection and does not come within the definition of a refugee. She argues that the question of

relocation cannot be isolated from the entire application process which must be viewed as part of a holistic determination for refugee

status. Finally, she argued that it was not appropriate for the applicant to seek judicial review of the decision of the ORAC when

there is a statutory procedure under the Refugee Act 1996 which allows an applicant a right of appeal against any recommendation of

the ORAC. In any case, she argued, this is not a case which equates to the impugned process in Stefan.

Conclusion

10. The first observation I make is that it was not found that the applicant had established objectively or subjectively that she was a

victim of persecution. The s. 13(1) report states that:-

“ [T]he applicant’s claim may be considered sufficiently serious by its nature or repetition as to constitute a severe

violation of basic human rights and therefore may be considered as being of a persecutory nature and as such could

satisfy this element of the refugee decision. This, however, is without prejudice to the following examination of the well-

foundedness of the applicant’s claim, encompassing a critical analysis of all the circumstances and factors pertaining to

the case including, where appropriate, an assessment of the availability of State protection, credibility and Section 2

link/convention grounds.”

11. The decision then outlined the various reports which state that relocation is available to any person seeking to escape ill-

treatment from non-State agents and concludes that the applicant’s contention that protection against FGM was not available to her

in Nigeria and that she could not have evaded this procedure through internal relocation, appears to run counter to country of origin

information. The report adds that the Commissioner had regard to s. 11B (of the Refugee Act 1996, as inserted by s. 7 (f) of the

Immigration Act 2003) and concludes that the applicant has failed to establish a well founded fear of persecution. In effect, the

decision states that if the risk of female genital mutilation such as the applicant asserted were established, it would amount to

persecution but it does not go so far as to say that the applicant was found to be credible or to have established her fear of

persecution. The application failed because the Commissioner found that the applicant’s answers on relocation did not accord with

country of origin information and that this was without prejudice to the grounds enumerated in s. 11B dealing with travel

arrangements and documentation.

12. The applicant has ignored this aspect of the report and relied heavily on a portion, namely paragraphs 33 and 34, of the UNHCR

guidelines on International Protection: “Internal Flight or Relocation Alternative” which state that the burden of proof generally lies

with the person who asserts it and that on this basis it is up to the Commissioner to identify the proposed area of relocation and to

provide evidence that it is a reasonable alternative for the individual concerned. No jurisprudence on the UNHCR guidelines was

opened to support her contention although the same issues have been raised before. In fact Clarke J. refers to the UNHCR Guidelines

on Internal Flight or Relocation Alternative in Imoh v. RAT [2005] IEHC 220 where he states:-

“… a decision maker within the refugee process contemplating whether it might be appropriate to recommend refusal of

refugee status on the basis of the so called “internal flight or relocation alternative” must, in order to properly reach

such a conclusion, comply with the guidelines in that regard issued by the United Nations High Commissioner on

Refugees. As those guidelines point out the concept of internal flight or relocation alternative is not explicitly referred to

in the criteria set out in Article 1 A(2) of the 1951 Convention. It is, however, the case that the question of whether a

claimant has an internal flight or relocation alternative may arise as part of the holistic determination of refugee status.

Amongst other things the guidelines require that a decision maker who is contemplating the possibility that internal flight

or relocation might be considered in the assessment of refugee status must apply what is called “the reasonableness

test”. That is to say the decision maker must consider whether it would be reasonable in all the circumstances of the

case for the claimant to relocate in a manner suggested.”

13. On the issue of relocation generally, Herbert J. in E.E. v. MJELR [2008] IEHC 137 held that it was reasonably and rationally open to

the ORAC to conclude that the option of relocating to another part of the applicant’s home state was available to her based on the

material contained in the country of origin information available.

14. It is well established in refugee law that in war-torn States where the conflict is confined to a particular region and relocation

away from the area of conflict is an option, this can be the basis for refusing refugee status. It is surprising, therefore, that the point

raised by Ms. Boyle, that the onus is on the investigative body to establish where exactly a person can relocate safely, has not

previously been challenged. It may well be that the UNHCR guidelines on International Protection: “Internal Flight or Relocation

Alternative” simply do not support that contention.

15. An analysis of the relevant guidelines reveals the following principles:

- “The concept of an internal flight or relocation alternative is not a stand-alone principle of refugee law, nor is it an

independent test in the determination of refugee status” (Paragraph 2).

-“…The question of whether the claimant has an internal flight or relocation alternative may, however, arise as part of

the refugee status determination process.” (Paragraph 2)

-“… a consideration of internal flight or relocation necessitates regard for the personal circumstances of the individual

claimant and the conditions in the country for which the internal flight or relocation alternative is proposed” (Paragraph

4).

16. The guidelines make it absolutely clear that the relocation alternative to refugee status requires a holistic assessment of the

applicant’s case. The guidelines suggest that if a well founded fear of persecution is established in some localised part of the country

of origin then an assessment of whether there is a relocation possibility is conducted by a two stage evaluation. First it is appropriate

to determine whether the alternative location is practically, safely and legally accessible to the individual and whether the agent of

persecution is the State. That assessment was made in this particular case by consulting country of origin information. This

information indicates that women can move freely within the country of Nigeria where the persecution alleged is not carried out by

agents of the State and measured against the applicant’s assertion that her fear of FGM came from the elders and old women of her

tribe. The reports consulted establish that women fleeing FGM can relocate to other parts of the country. There is no suggestion in

this country of origin information that fleeing women are pursued by the village elders.

17. The next consideration suggested by the guidelines is whether the claimant can lead a relatively normal life without undue

hardship in the context of the country concerned. The personal circumstances of the claimant are relevant. She was a twenty eight

year old single woman expecting her first baby. She was well educated and employed as a sales assistant for an investment company.

She lived in Uromi in Edo State with her parents. Her parents were not involved in the circumcision process and when they received a

letter from the village elders requiring the applicant to make herself available for circumcision in seven days, they are reported to have

been surprised. They were not seeking their daughter’s circumcision and there is no evidence that they were supportive of the elders’

wishes.

18. In his assessment, the Commissioner accepted that the police generally could not be relied on to provide protection by actively

investigating or prosecuting the village elders who carry out the female circumcisions. He outlined that there were alternative

organisations which provided protection if needed. In the many cases where female genital mutilation is asserted as the basis of a

claim of persecution which come before the refugee investigative authorities and the courts, the highly authoritative task force

findings on the status of the practice in Nigeria have been explored. The consensus in the many State Department and other

independent reports is that the practice is widespread although less prevalent now than previously and that it is illegal in most States

but that the police generally do not act to protect the rights of those threatened as they view the practice as a family affair. The

reports indicate that in some States the practice is less prevalent than in others and that as freedom of movement is guaranteed,

relocation is always an option, especially to the city of Lagos, and that numerous NGOs operate to provide education and protection.

This information was referred to in the interview and the applicant’s views sought.

19. Thus, looked at holistically, having considered the applicant’s personal circumstances and the relevance and reasonableness of

potential relocation in the light of well documented, good quality and current information and research on Nigeria on the issue of FGM.

I am satisfied that the process of the applicant’s investigative interview was conducted in compliance with the spirit and letter of the

UNHCR guidelines on relocation alternatives. Basic rules of procedural fairness were applied in that the applicant was made fully aware

throughout the interview that the concept of relocation was uppermost in the interviewer’s mind in that he referred on several

occasions to well recognised authoritative reports relating to FGM in Nigeria.

20. In my view, the applicant has failed to make out an arguable case for substantial grounds to quash the decision of the

Commissioner. In addition, there is a growing body of judicial opinion to the effect that only in exceptional cases should an applicant

seek to quash a decision of the Refugee Appeals Commissioner when there is an appropriate statutory appeals procedure. The

decision of Hedigan J. in N. v MJELR [2008] IEHC 308 provides a clear endorsement of the rule that it is only in very rare and limited

circumstances that judicial review is available in respect of an ORAC decision. He states that this is because to do otherwise would be

to usurp the authority granted to the Refugee Appeals Tribunal by the Oireachtas and because the delay inherent in judicial review

applications defeats the aim of ensuring that asylum applications are decided with due expedition.

21. In E.D. v. ORAC and MJELR [2008] IEHC 56, Charleton J. states that an appeal is the correct approach in cases where it is argued

that a wrong finding of fact amounts to an excess of jurisdiction and not judicial review. He holds that the correct test as to an error

of fact exceeding jurisdiction is as set out in O’Reilly v. Mackman [1983] 2 A.C. 237 i.e. has the tribunal asked the wrong question

and so, by pursuing an issue that it was not mandated to enquire into, exceeded jurisdiction?

In A.Z v. ORAC and MJELR [2008] IEHC 36, McGovern J., relying on McGoldrick v. An Bord Pleanála [1997] 1 I.R. 497, stated that the

courts should only grant judicial review to an applicant from a decision of the ORAC where the issues cannot adequately or

conveniently be resolved before the RAT.

Birmingham J.’s decision in EBV v. MJELR also considers the relevance of a statutory right of appeal in judicial review applications. He

refers to a decision of Feeney J. in Akpomudjere v. MJELR of the 1st February 2007 as helpful as it contains a review of all the

authorities in the area. Birmingham J. states that what emerges from the analysis in Akpomudjere is that the existence of a right of

appeal is not, in itself, a bar to seeking judicial review of the decision at first instance, but the existence of that right of appeal is

always a relevant consideration in considering whether judicial review lies or not. He concludes that the question of the availability of

an alternative remedy is most particularly relevant where an applicant is seeking a review, reconsideration, or a reopening of findings

in relation to credibility, because in those circumstances, the possibility of an appeal on oral evidence is particularly relevant.

These decisions support my view that in this case, the appropriate course for the applicant is through the statutory appeal process.

The application is refused.