High Court refuses leave for judicial review of Refugee Appeals Tribunal decision denying asylum claim.

Neutral Citation Number: [2008] IEHC 313

THE HIGH COURT

2006 1024 JR

BETWEEN

K. O.

APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND

THE REFUGEE APPEALS TRIBUNAL

RESPONDENTS

Judgment of Mr. Justice Hedigan, delivered on the 16th day of October, 2008

1. The applicant is a national of Nigeria. She is seeking leave to apply for judicial review of the decision of the Refugee Appeals

Tribunal (“RAT”) to affirm the recommendation of the Office of the Applications Commissioner (“ORAC”) that the applicant should not

be declared a refugee.

Factual Background

2. The applicant’s claim for asylum arises in the following circumstances. After their marriage in 2000, she lived with her husband on

his family compound in Lagos. Her in-laws tried to force her to convert from Christianity and to engage in traditional rituals. She was

subjected to multiple rapes and mistreatment by her brothers-in-law.

3. The applicant gave birth to three children in Nigeria. When the first-born daughter (K) was one year old, the applicant’s in-laws

abducted her and subjected her to FGM and other forms of mistreatment. The applicant does not know if K is alive today. When she

gave birth to a second daughter (J), she fled with the infant to her hometown of Kano, in the north of Nigeria. She returned to Lagos

to her husband and his family some nine months later. Thereafter, she gave birth to a son (M) but her in-laws took him from her and

circumcised him. She says that his death a fortnight later was caused by her in-laws. She says that she considered reporting these

events to the police but did not do so as she thought they would tell her to settle domestic matters by herself. Upon falling pregnant

for a fourth time, the applicant decided to flee to Ireland with her remaining daughter (J).

Procedural Background

4. The applicant was unsuccessful before ORAC, and appealed from that decision to the RAT. In support of her appeal, she submitted

letters from the Limerick Rape Crisis Centre and Limerick Social Services, stating that she had been raped and was now traumatised.

She also submitted a UK Home Office report on Nigeria for 2005. Receipt of these documents was acknowledged by the RAT.

5. An RAT oral hearing was held on 6th April, 2004 and the Tribunal Member decided to reject the appeal by decision dated 30th May,

2006. While accepting the applicant’s account of her difficulties with her in-laws, the Tribunal Member found that the applicant’s

voluntary return from Kano to Lagos was not consistent with a genuine subjective fear of persecution, and that country of origin

information indicates that State protection might reasonably have been forthcoming in Nigeria.

Extension of Time

6. The RAT decision was notified to the applicant by letter dated 15th June, 2006. The applicant commenced the within proceedings

on 17th August, 2006, some six weeks after the expiry of the 14 day time-limit set by section 5 of the Illegal Immigrants (Trafficking)

Act 2000. Nevertheless, as the applicant acted with all due expedition I am satisfied that there is good and sufficient reason for

extending time.

The Submissions

7. The applicant’s key complaints in respect of the decision are as follows:-

a. Failure to take account of documents submitted by the applicant;

b. Error of fact / misconstruction of evidence; and

c. Failure to adequately assess whether State protection is available.

(a) Failure to take account of documents submitted

8. The applicant complains that the Tribunal Member failed to take account of the letters from the Limerick Rape Crisis Centre and

Limerick Social Services. The respondents submit that these letters were not material to the Tribunal Member’s assessment as it was

not disputed that the applicant had been raped. It is further submitted that it does not follow from the fact that the letters were not

expressly referred to in the decision that the Tribunal Member did not take account of them.

(b) Error of Fact / Misconstruction of Evidence

9. The applicant says that the Tribunal Member’s finding that she voluntarily returned to Lagos is both an error of fact and a

misconstruction of the evidence that she gave at the oral hearing. The respondents submit that the Tribunal Member’s finding is

consistent with the account given by the applicant in her ORAC interview.

(c) The Approach taken to State Protection

10. The applicant says that the Tribunal Member failed to have regard to the portions of the UK Home Office report that are relevant

to the availability of State protection for women in Nigeria, and instead had regard to portions thereof that concern unrelated issues,

such as police corruption and the treatment of detainees. The respondents submit that the country of origin information is consistent

with Tribunal Member’s assessment that State protection might be forthcoming.

The Court's Assessment

11. In order to obtain leave, the applicant must establish substantial grounds for contending that the decision should be quashed. As

is now well established, this means that the applicant must show grounds that are arguable and weighty as opposed to trivial or

tenuous.

(a) Failure to take account of documents submitted

12. It is, of course, necessary for a decision-maker to take into account all relevant statements and documentation presented by the

applicant, including information on whether or not he/she has been or may be subject to persecution or serious harm. This obligation

is now set out in Regulation 5(1)(b) of the European Communities (Eligibility for Protection) Regulations 2006. It does not follow,

however, from the absence of an express reference to a document in a decision that account was not taken of the document. In

Banzuzi v The Minister for Justice, Equality and Law Reform [2007] IEHC 2, Feeney J. held that “the fact that only certain documents

are quoted in the decision does not and cannot lead to a determination that all the documents were not considered.” He also

accepted that it is a correct statement of the law that “there is no obligation on a decision maker to refer to every aspect of

evidence or to identify all documents within its written decision.”

13. The applicant relies on the decision in Khazadi v The Minister for Justice, Equality and Law Reform & Ors (unreported, High Court,

Gilligan J., 19th April, 2007). The obligations set out in that case were distinguished, however, in M.E. v The Refugee Appeals Tribunal

& Ors [2008] IEHC 192, where Birmingham J. found that the medical evidence in question in Khazadi was of an altogether different

quality and quantity to that in question in M.E., and that the doctors had specifically requested that the medical report would be

taken into account in Khazadi. More fundamentally, Birmingham J. noted that the Tribunal Member in Khazadi had reached an adverse

credibility finding before going on to consider the medical evidence. None of these elements were present in M.E. and none are

present in the within proceedings.

14. In G.K. & Others v The Minister for Justice, Equality and Law Reform & Ors [2002] 2 IR 418, Hardiman J. stated as follows (at

p.426-427):-

“A person claiming that a decision making authority has, contrary to its express statement, ignored representations which

it has received must produce some evidence, direct or inferential, of that proposition before he can be said to have an

arguable case.”

15. In my view, the applicant has failed to show any direct or inferential evidence that the Tribunal Member did not have regard to

the letters.

(b) Misconstruction of the Evidence

16. It is clear that there is an inconsistency between the account given by the applicant at her ORAC interview as to the

circumstances of her return to Lagos, and the account given at the RAT oral hearing. In the interview, she stated that her husband

had contacted her in July, 2003, while she was in Kano and begged her to return home, and that he told her that his family were

looking for her. In answer to the question “Did you have any problems with [your husband’s] family while you were in Kano?” she

answered “He told me that they were trying to contact me as I had run away with their child.” She gave no indication that her in-

laws had visited her. At the RAT oral hearing, however, it appears that she claimed to have been forced to return because her in-laws

visited her on two occasions in Kano and threatened and intimidated her, and she could not cope with any further visits from them

and had nowhere else to go as her protectors in Kano feared for their safety and withdrew their support for her.

17. In my view, it was open for the Tribunal Member to find that the applicant returned voluntarily to Lagos, based on the information

that was available to her. She did not make an error of fact, nor did she misconstrue the evidence.

(c) The Approach taken to State Protection

18. I would note at the outset that it is the function of the Tribunal Member, and not of this Court, to determine the weight (if any)

that is to be attached to country of origin information and other evidence proffered by or on behalf of an applicant (see O.A.A. v

Refugee Appeals Tribunal & Anor [2007] IEHC 169; Kvaaratskheila v The Refugee Appeals Tribunal & Anor [2006] IEHC 132).

19. The Tribunal Member found that although there is a clear need for widespread reform of the police in Nigeria, there is nothing in

the country of origin information to suggest that the police would not investigate the disappearance or death of a child in the manner

described by the applicant. She also noted that the country reports suggest that rape is a criminal matter, and that there are criminal

sanctions in place in Nigeria for such crimes.

20. I have read the UK Home Office report in its entirety and I can find no fault with the Tribunal Member’s assessment of the

information contained therein. Paragraphs 6.08 and 6.09, dealing with persecution from non-state actors and internal relocation,

clearly states that “[a]s Nigerians can freely move within Nigeria, it is possible for Nigerians to relocate to another part of Nigeria to

avoid persecution from non-state actors.” The report does acknowledge that those Nigerians who do relocate may encounter

problems but it is clear, in my view, that the findings contained in the RAT decision are not dependant upon selective quotations or

isolated statements; rather, they are consistent with the overall tone of the country of origin information.

Conclusion

21. In my judgment, the applicant has not established substantial grounds for contending that the Tribunal Member’s decision ought

to be quashed and accordingly, I must refuse leave.