High Court dismisses judicial review application against Refugee Appeals Tribunal's negative asylum decision. Applicant failed to prove state protection breakdown.

Neutral Citation Number: [2008] IEHC 425

THE HIGH COURT

JUDICIAL REVIEW

2007 24 JR

IN THE MATTER OF THE ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000, SECTION 5 AND IN THE MATTER OF THE REFUGEE

ACT 1996 (AS AMENDED)

BETWEEN

V.O.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Judgment of Mr. Justice John Edwards delivered on the 25th day of November, 2008

Introduction

1. The applicant in this case is Nigerian. She is a member of the Ebo/Igbo tribe and comes from Benin City. She is seeking asylum in

the State and has applied for refugee status on the grounds of her membership of a particular social group. The second named

respondent in this case, namely the sole member of the Refugee Appeals Tribunal, issued a negative decision in respect of the

applicant’s appeal against a recommendation of the Refugee Applications Commissioner that she should not be regarded as a refugee.

The second named respondent’s decision was given on the 16th November, 2006, and notified to the applicant by a letter dated the

29th November, 2006. The applicant seeks leave from me to apply by way of judicial review to challenge the negative decision of the

Refugee Appeals Tribunal. She seeks that pursuant to s. 5 of the Illegal Immigrants (Trafficking) Act 2000.

Background to the Case

2. At the time of the proceedings before the RAT the applicant was eighteen years of age. She arrived in Ireland in January, 2006 and

applied for asylum on the 27th March, 2006. She claims that her parents died when she was three years of age. Her parents’ names

were G. and S.O. She was adopted thereafter by her father’s brother, R. She was raised by this man and his wife. She received a

primary education only. She was badly treated by her uncle and his wife and they never treated her as their own child. In 2004, she

was informed by her uncle that she would have to marry a Chief called Danny, who was 30 years older than she was. A dowry was

paid by this man. She said that her uncle threatened her that if she left the house of this man that her uncle would kill her. She

claims that she had no say in the matter and could not object to the marriage. She moved into the house of this man. She lived with

him for two months between April and May 2005. No marriage ceremony was actually performed during this period, but she indicated

in evidence that she believed it was due to take place in November. She eventually decided to run away and did so with the help of

church people. She said that she decided to come to Ireland because she had no where to run to in Nigeria. She claimed that people

were not helpful in Nigeria and that she could not get help there. She fled to Ireland and now seeks asylum here on the grounds

indicated.

3. The applicant’s case was considered by the Refugee Applications Commissioner, who decided that there were numerous credibility

issues surrounding her testimony tending to undermine her case. Moreover, the Refugee Applications Commissioner, as he was obliged

to do, had regard to s. 11(B) of the Refugee Act 1996, as amended, in considering the issue of the applicant’s credibility. Section

11(B)(c) provides that account should be taken of whether the applicant has provided a full and true explanation of how he or she

travelled to and arrived in the State. The Refugee Applications Commissioner regarded the applicant’s testimony in relation to how she

had got to Ireland to be unsatisfactory. The Commissioner found her to be not credible in all the circumstances in addition, and in any

event, the Refugee Applications Commissioner, applying a forward looking test, came to the conclusion that the applicants alleged

fear of persecution in the event that she was required to return to Nigeria was not well founded. In the view of the Commissioner, the

applicant could return to Nigeria without a fear of persecution for a convention reason, including the reason put forward, namely

membership of a particular social group. The applicant was dissatisfied with the s. 13 report prepared by the Refugee Applications

Commissioner, and the Commissioner’s recommendation and appealed to the Refugee Appeals Tribunal.

4. As previously stated the Refugee Appeals Tribunal affirms the recommendation of the Refugee Applications Commissioner. It is clear

from the consideration of the second named respondents’ decision that she rejected the applicants claim, because the applicant had

failed to demonstrate a genuine risk, in the sense of a serious possibility or a real chance, that she would be persecuted if returned to

Nigeria. It was not necessary for the second named respondent to reach a decision on the question of the applicant’s credibility

having regard to the fact, that the applicant had failed to demonstrate a genuine risk of persecution.

The Present Proceedings

5. In the present proceedings, the applicant seeks leave to apply by way of judicial review for an order of certiorari quashing the

decision of the second named respondent, together with various ancillary reliefs. I should state at this point that the applicant was

slightly out of time for the bringing of her application, but I have already ruled in her favour in an application for an extension of time.

I was satisfied, on the basis of affidavit evidence put before me, that I had good reasons for extending the time and have done so.

The substantive grounds on which the applicant now seeks leave to challenge the decision of the second named respondent are

essentially twofold. Firstly, the applicant contends that the second named respondents’ conclusion that the applicant could have

availed of state protection was irrational in that, it was contrary to the overwhelming thrust of the country of origin information.

Secondly, the applicant claims that, even if there was evidence sufficient to establish the existence of a system of state protection,

the Tribunal member failed to give any or any sufficient consideration to the adequacy or effectiveness of that system of state

protection, and in concluding that it was adequate and effective her decision was also irrational. At this point it is appropriate to

consider in a little detail what the second named respondent actually said. Commencing at the bottom of p. 17 of her decision she

states:-

“When one asks the question was there a failure of state protection, same cannot be answered in any definitive sense

because the applicant did not seek state protection. In such circumstances it is not possible to judge whether there

would have been, in the circumstances of the individual, sufficiency of protection available and therefore it is necessary

to gauge whether the system in place is theoretically adequate.” (Attorney General v. Ward 2SEJ689).”

Country of origin information from the Danish Immigration Service 2005, submitted on behalf of the applicant, at para.

3.10.1., indicates that forced marriages are common in northern Nigeria and is a concern for young women who are being

forced to marry an older man. It also indicates that women from the north who find themselves under pressure to marry

against their own wishes may take up residence in another state in the northern part of Nigeria or in the south, especially

in Lagos. Those women can seek legal assistance from a number of NGOs, and some do. At para. 3.10.2, it indicates that

women trying to escape forced marriages may be assisted by WACOL, but WACOL emphasise that the vast majority of

such disputes are being solved and the parties reconciled by the assistance of WACOL. In some cases women are

underage when they are forced to marry. Finally, WACOL regretted that the organisation was only able to provide

assistance to victims arriving at its offices in Abuja.

Other country of origin information from the Immigration and Refugee Board of Canada, dated March, 2006 annexed to the

s. 13 report tab 2, indicates that the Igbo population in Nigeria is predominantly Christian. Although there are still reports

of early marriages in certain Igbo communities, the practice of forced marriages among the Igbo has died down. However,

it was also indicated that teen pregnancy is frowned upon and teen mothers are, in most cases, forcibly married off by

their families to avoid the shame of having a child out of wedlock. It further indicates that the Director of the Heinrich Boll

Foundation stated that:- “As everywhere in Nigeria, families in Igbo society do play an important role in the selection (or,

at least, approval) of marriage partners. The spectrum of influence and pressure is very wide, and I do not doubt that

there are cases that amount to ‘forced marriages’ (depending on how one defines it). In general, I should think that it is

rare to day in Igbo society that a girl is ‘promised’ for marriage to an elder man and actually forced to marry him when

having reached puberty. On the other hand, such a thing may still happen…however, forced marriages are widely

believed…to constitute a problem especially in (Muslim) northern Nigeria, and not so much in the Christian Igbo speaking

southeast.”

However, help or recourse for women in arranged or forced marriages may be more easily obtained through women’s

rights, NGOs or legal help institutions, which are quire strong in the Igbo speaking southeast.

Under Nigerian civil law, forced marriage is illegal and can carry a jail term of several years. In addition Nigeria’s marriage

Act requires the parents or guardians’ consent if either party to an intended marriage is under the age of 21. The

country’s national policy on population also discourages parents from arranging marriages for girls under eighteen years of

age.

Other information from the US State Department at Tab 5 of the s. 13 report indicates at para .6.07 that as Nigerians can

freely move within Nigeria, it is possible for Nigerians to relocate to another part of Nigeria to avoid persecution from non

state agents. Those Nigerians, who do relocate, however, may encounter problems. They may face difficulties with regard

to lack of acceptance by others in their new environment, as well as lack of communication, land, etc. The situation

would be easier if the individual concerned had family or other ties in the new location.

It then goes on to state that MOMOH (Channels television) explains that it is possible to evade social persecution,

EGFGM, Forced Marriage, Sharia Punishment, etc, by relocating inside Nigeria…regarding forced marriages MOMAH

explained that it is possible to escape situations by relocating. Forced marriage is predominantly a phenomenon in the

northern part of Nigeria and a woman can escape forced marriage by relocating to the south. Thus while it may be the

case that forced marriage may still happen, protection is available if the state is approached for same. The country of

origin information indicates that sanctions are in place for forced marriages and also that a national policy is in place

which discourages parents from engaging in this activity. However, she maintains that she went to live with this man for

some time. She sought help from people in her church and managed to get away from Nigeria. However, it is clear from

the country of origin information that assistance/state protection is available if she were to seek same on her return. She

fears being killed by this old man and her step-father on return. There are legal sanctions in place for such threatened

behaviour were the applicant to encounter this on her return to Nigeria, and there is nothing in the country of origin

information submitted which indicates that the Nigerian police force would regard a threat to kill somebody as a trivial

matter. Given that this applicant had no wherewithal to seek assistance before and leave Nigeria and live for a number of

months in Ireland, it is not unreasonable to suggest that were she to return to Nigeria, she would be able to seek the

necessary state protection (which it is clear is available, albeit not perfect) were she inclined to seek same. On that

basis, one could say that hers was a situation in which state protection “might reasonably have been forthcoming” when

viewed in the context of the country of origin information.

As the court stated in Horvath v. Secretary of State for the Home Department [2002] 3 All E.R. 577:-

“It would require cogent evidence that the State which is able to afford protection is unwilling to do so especially in

the case of a democracy.”

Thus as there is no cogent evidence that the state, which is able to provide protection, is unwilling to do so, I am of the

view that the principle of surrogacy does not arise. Thus the applicant’s claim fails in this regard.

It is well established that an applicant’s failure to satisfy any one of the criteria results in a failure to establish a claim for

refugee status. Thus this application for refugee status is refused and the decision of the Refugee Applications

Commissioner is affirmed.”

The Applicant's submissions

6. The applicant submitted that the country of origin information before the second named respondent indicated inter alia the

inefficiency, ineffectiveness and indifference of the Nigerian police towards persons in the Applicant's situation. It did not indicate

there was a reasonable expectation of State protection for persons in the applicant's position. While the second named respondent

correctly identified that "The country of origin information indicates that sanctions are in place for forced marriages and also that a

national policy is in place which discourages parents from engaging in this activity" she failed to examine particularly the manner in

which they are applied.

7. The principal Irish authority to which the Court was referred to in support of this argument was Vercevic v. The Minister for

Justice, Equality and Law Reform and the Refugee Appeals Tribunal (Unreported, High Court, Finlay Geoghegan J., 8th October, 2003).

Reliance was also placed on Zhuchkova v. The Minister for Justice, Equality and Law Reform and the Refugee Appeals Tribunal

(Unreported, High Court, Clarke J., 24th November, 2004); and Idiakheua v. The Minister for Justice, Equality and Law Reform and the

Refugee Appeals Tribunal (Unreported, High Court, Clarke J., 10th May, 2005). In essence, the applicant's submissions were to the

effect that the thrust of the country of origin information was overwhelmingly to the effect that there was no meaningful prospect of

state protection for someone in the applicant's position, and that the second named respondent's finding to the contrary was based

upon isolated quotations from the country of origin information that ran contrary to the general thrust of it. It was also submitted

that the court should apply the standard of anxious scrutiny in considering the Tribunal's decision.

The respondent's submissions

8. The respondents submit that it is not appropriate for the court to substitute its views for that of the Tribunal member, unless the

Tribunal member has acted in excess of jurisdiction, or has failed to apply fair procedures - V Z. v. The Minister for Justice, Equality

and Law Reform and Others [2002] 2 I.R. 135. The case of Camara v. The Minister for Justice, Equality and Law Reform & Others

(Unreported, High Court, Kelly J., 26th July, 2000), in which Kelly J. reviewed the relevant Irish authorities up to that point, was relied

upon in support of the proposition that the decisions of specialist administrative bodies should be afforded curial deference. The

respondents further relied on Johnson Smith v. The Minister for Justice, Equality & Law Reform & Others (Unreported, High Court,

Feeney J., 16th July, 2008), citing Hedigan J. in H.O. v. The Minister for Justice, Equality and Law Reform & Others (Unreported, High

Court, Hedigan J., 19th July, 2007) warning about the danger of a reviewing Court becoming in effect a Court of Appeal on the facts

and suggesting that it should not interfere “absent some manifest and glaring flaw”.

Decision

9. The Court is not disposed to grant leave to apply for judicial review in this case. There was certainly evidence that sanctions are in

place for forced marriages and also that a national policy is in place which discourages parents from engaging in this activity. I do not

believe that the findings in this regard were contrary to the thrust of the country of origin information, or that the evidence was

cherry picked. The secondary question of the adequacy of state protection for someone in the applicant's position has caused me

more trouble. Undoubtedly the picture painted by the country of origin information is anisotropic. The situation throughout Nigeria is

highly variable. However, it is well established that a system of state protection does not have to be perfect. Further, I would

endorse the approach of Feeney J. in Adernerian v. Refugee Appeals Tribunal (Unreported, High Court, Feeney J., 9th February, 2007)

wherein he stated:

"As pointed out by Herbert J. in the Kvaratskhelia case it is the function of the Refugee Appeals Tribunal and, not of this

court in a judicial review application, to determine the weight, (if any), to be attached to country of origin information

and other evidence proffered by or on behalf of the applicant. The Tribunal member correctly identified that the obligation

was on the applicant to provide clear and convincing evidence of the State's inability to protect. This was not a situation

of a complete breakdown of law and order and therefore the correct approach was that it must be presumed that the

State was capable of protecting its citizens. It was recognised that such presumption could be rebutted but such rebuttal

required clear and convincing evidence."

10. In this case there is a system of state protection, albeit not a perfect one. Unlike the situation in the Vercevic case it could not

have been contended in this case that "there was no relevant material" upon which the Tribunal member could have arrived at her

conclusion. There was evidence capable of supporting her conclusion and it is not for the High Court, on an application for judicial

review, to second guess the Tribunal member's view and substitute its own view. Moreover, the applicant in this case, as the Tribunal

member legitimately points out, has never sought state protection. Also, she is not actually married to the older man referred to. She

is merely "promised" in return for a dowry having been paid. She claims to be in fear of being killed by this old man and her uncle/step-

father on return. It was perfectly legitimate for the Tribunal member to say that there are legal sanctions in place for such threatened

behaviour were the applicant to encounter this on her return to Nigeria. She is also correct in asserting that there is nothing in the

country of origin information submitted which indicates that the Nigerian police force would regard a threat to kill somebody as a

trivial matter. In my view her decision was neither irrational nor unfair.

11. In the circumstances I am not disposed to grant the applicant leave to apply for judicial review and I refuse her application.