Neutral citation no.  IEHC 150
THE HIGH COURT
[2004 No. 395 JR]
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM AND THE REFUGEE APPEALS TRIBUNAL
JUDGMENT of Mr. Justice Clarke delivered the 10th day of May, 2005.1. The Applicant seeks to bring these proceedings for the purposes of challenging a decision of the Refugee Appeals Tribunal ("RAT") which was made on 31st March, 2004. That decision followed from a hearing on 19th February, 2004. As is required by s. 5 of the Illegal Immigrants (Trafficking) Act, 2000 the Applicant has sought leave to bring judicial review proceedings on notice to the Respondents and must establish substantial grounds.
The applicant was born in Ekpoma, Nigeria, on 5th September, 1978. She came to Ireland on or about the 24th July, 2002. In her affidavit grounding this application she deposes to the fact that when she was about 13 years old her father gave her to the chief of their village for marriage. She stayed with the chief for five years at the chief's house. When she was approximately 18 years of age she ran away from the chief's compound. After a few days she was caught and brought back by the chief's bodyguards. She was beaten and locked up in a small room for a number of days. After she was released she ran away to another village but was caught after two weeks and brought back to the chief's house. She was kept in a room blindfolded for a number of further days. The chief's bodyguards came and told her that the chief had told them to cut off her legs so she could not run away again. She was blindfolded again. She felt sharp pains over her legs and they were cut badly. For the following two year period (commencing in 1996 and lasting until 1998) she was treated with traditional medicine. However in 1998 she was assisted in escaping to Lagos by a pastor who had come to preach at the place where she was being treated. She remained with the pastor and his family in Lagos where she had an operation on her leg. In 2002, while in Lagos, she met a woman from her village in the marketplace. That woman said to her "you're here and the chief will come for you" or words to like effect. She states that in her view the fact that her whereabouts was now known by the chief was likely to lead to the chief coming to take her back to her village. She further deposed to the fact that she did not report any of the above to the police because the police cannot arrest a chief by virtue of his position. She also stated her belief that the pastor did report what happened to her but that the police did nothing.
3. The Process
Having applied for asylum the applicant's case was, in the ordinary way, initially considered by the Refugee Appeals Commissioner who prepared a report pursuant to s. 13 of the Refugee Act, 1996 as amended. That report is dated 20th November, 2002 and it concluded by indicating that the applicant "has not established a case such as to qualify her for refugee status as defined in s. 2 of the Refugee Act 1996 (as amended)". In substance the basis for that decision was that, in part, the officer concerned doubted the veracity of the applicant's case in that it was indicated at paragraph 1.4 that it was possible that the true reason for the applicant coming to Ireland was for medical treatment. Furthermore it was suggested that it was unlikely that the chief concerned would still have been looking for the applicant four years after her final departure and that even if the chief's bodyguards had come looking for her at that time there was no reason why she could not have gone to the authorities for help. The Applicant appealed to the RAT.
The evidence given by the applicant before the RAT would appear to have been broadly in accordance with the evidence which she has deposed to on affidavit in these proceedings. In the course of its written determination the RAT set out a summary of the evidence given by the Applicant at p. 2 of its determination. There then followed a general statement of the applicable law in respect of, in particular, the burden and standard of proof and the definition of a well founded fear of persecution with which no exception is taken. The RAT came to the view that it was not satisfied that the applicant had a well founded fear of persecution for one of the reasons set out in s. 2 of the 1996 Act. The reasons are stated to be as follows:-
"The applicant said that she suffered a serious assault after been sold as a child bride. After the assault she went to Lagos where she lived without any difficulty for a period of four years. She decided not to make any complaint to the police concerning the assault on her. It would appear that state protection is available to the applicant. Paragraph 100 of the UNHCR Handbook states as follows:-
"Whenever the protection of the country of nationality is available, and there is no ground based on a well founded fear for refusing it, the person concerned is not in need of protection and is not a refugee".
I also refer to the case of Hawa Baba Ahmed. This person was a child bride. She escaped from the man she had been sold to. When captured he amputated one of her legs. This man was tried and convicted. Whilst he only received a prison term the fact that he was brought before a court confirms that state protection is available in these circumstances.
Secondly, the applicant's fear must be well founded. The fact that the applicant was able to live quite openly in Lagos for four years without any harm coming to her does not indicate to me that her fear is well founded".
4. Analysis of Decision
The above represents the entire basis for the decision of the RAT in this case. It is not clear as to whether the decision maker fully accepted the evidence of the applicant. In that portion of his determination dealing with her evidence same is simply described as "summary of evidence as given by the applicant". It might be inferred that the reference in the operative part of the decision as quoted above to certain aspects of that evidence supports the view that the applicant's evidence was accepted. On the other hand it might be inferred from the final paragraph that the decision maker was not satisfied with the entirety of that evidence. I should comment that it would be preferable if determinations of the RAT set out the facts (or at least the important facts) of which the Tribunal is satisfied. Clearly in a case where the Tribunal is satisfied as to all of the evidence given by an applicant that matter can be simply stated. If, however, the Tribunal is not satisfied as to the veracity of any or all of the evidence given by or on behalf of the applicant then that fact should be set out together with the reasoning of the Tribunal as to why that evidence is not accepted.
In substance it would appear that the decision was based on:-
(1) a finding that adequate state protection was available; and
(2) a finding that there was no established well founded fear of persecution for a convention reason.
5. The Challenge
In substance the applicant seeks leave to challenge both of the above determinations of the RAT. She also raises certain procedural complaints.
(a) State Protection
The first leg of the decision amounts to a finding that the applicant could reasonably have been expected to avail of state protection. There is no doubt that, in principle, the availability of state protection and the absence of any reasonable or appropriate basis for not availing of it are highly material factors. The challenge is, however, based upon the contention that the RAT, in this case, wrongly considered the evidence which was before it concerning state protection in the country of origin.
On the evidence before me it would seem that the only country of origin information before the RAT on the occasion in question were extracts from a report of the Research Directorate of the Immigration and Refugee Board of Canada on the subject of prevalence of forced/arranged marriages in Nigeria and also an extract from the Human Rights Watch World Report 2001. In his decision the member of the RAT concerned correctly referred to paragraph 100 of the UNHCR Handbook. He also correctly noted that the applicant had decided not to make any complaint to the police concerning the assault on her. Insofar as any reason is given for concluding that state protection was available to the applicant the only reference is to the case of Hawa Baba Ahmed. That case is referred to in the Canadian Immigration and Refugee Board Report. However it seems to me, to say the least, to be arguable that the reference to that case in the relevant report makes it clear that the case was the exception rather than the rule and was referred to, in the course of the report, for the purposes of emphasising the difficulties encountered in obtaining state protection. The report makes it clear that the case was only taken by virtue of initiatives of the Women's Human Rights Body ("Women in Nigeria") and the report goes on to conclude that "there is no action the government authorities can take in favour of the women who resist the forced marriage". It also notes that there is no national law or policy concerning the practice and that the police term it a domestic affair for which they do not have powers to act. It is also suggested that this position is strengthened by the fact that there is societal acceptance of the practice.
As I pointed out in Zhuchkova v. The Minister for Justice Equality and Law Reform (ex tempore judgment Clarke J. 26th November, 2004) it is at least arguable that, even accepting that the principles in O'Keeffe v. An Bord Pleanála  I.R. 39 are applicable, reliance upon a selective quotation from a report the overall conclusions of which do not favour the establishment of adequate state protection amounts to a legally incorrect decision. That position would be strengthened if some degree of higher scrutiny of decisions of bodies such as the RAT is required. I have already determined (in Gashi v. Minister for Justice, Equality and Law Reform & Ors, unreported Clarke J. 3 December, 2004) that for the purposes of a leave application it is arguable that such higher scrutiny is required.
I am therefore satisfied that the applicant has made out a sufficient case to be granted leave in relation to this aspect of her challenge.
It is at least arguable that reference to an isolated example of state protection is insufficient to justify a finding of adequate state action in just the same way that the establishment of an isolated incident where state protection failed may be insufficient to establish its inadequacy. It would appear that the true test is as to whether the country concerned provides reasonable protection in practical terms Noone v. Secretary of State for the Home Department (Unreported CA 6 December, 2000). While the existence of a law outlawing the activity which amounts to persecution is a factor the true question is as to whether that law coupled with its enforcement affords "reasonable protection in practical terms". It is at least arguable that the decision sought to be challenged does not set out a sufficient rational basis for reaching a conclusion that state protection was adequate in that sense. It is furthermore arguable that the same considerations concerning the need for a determination to show a rational reason for rejecting an Applicants evidence as lacking in credibility also apply to the assessment of country of origin information.
(b) The well founded nature of the claim
The Tribunal member concluded that "the fact that she had lived quite openly in Lagos for four years without any harm coming to her does not indicate to me that her fear is well founded". While the Tribunal member did note in the course of his summary of the applicant's evidence that she deposed to the fact that the reason for her fear was the fact that she had met a woman from her village, he does not deal with this issue in the course of the operative part of his determination. While accepting that a determination of a body such as the RAT must be viewed as a whole, it is not, therefore, clear that the Tribunal member did in fact have regard to that fact when coming to his determination. If he did have regard to it and came to the conclusion that it was insufficient to establish a well founded fear of persecution for a convention reason he does not specify in the course of his determination why he came to that view. It is clear that on the applicant's case this was the crucial factor which led to her having a fear or persecution some four years after the primary events which gave rise to her injuries. It is at least arguable that in failing, in the course of his determination, to address this question the Tribunal member failed to properly deal with a central part of the applicant's case.
(c) Procedural Complaints
The next leg of the applicant's claim stems from a contention that the procedures followed by the RAT are in breach of the principles of natural justice by virtue of the fact that conclusions were reached on matters not put to the applicant.
In Nguedjdo v. Refugee Applications Commissioner (unreported ex tempore judgment of White J. 23rd July, 2003) this court made an order of certiorari quashing the decision of the Refugee Appeals Commissioner on the basis that same was made in breach of constitutional and natural justice by virtue of the failure to give the applicant the opportunity to deal with matters which would appear to have been crucial to the determination made in the case then under consideration. It should be recalled that the process before the RAT is an inquisitorial one in which a joint obligation is placed on the applicant and the decision maker to discover the true facts. 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 affects 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  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.
In setting out the above I would wish to make clear that the obligation to fairly draw the attention of the applicant or the applicants advisors to issues which may be of concern to the Tribunal arises only in respect of matters which are of substance and significance in relation to the Tribunal's determination. White J. in Nguedjo came to the view he did because, on an analysis of the determination of the Commissioner in that case he was satisfied that the matter not put "is or has been so crucial to the determination made in this particular case". I am also satisfied it is at least arguable that there must be some reasonable proportionality between the extent to which attention is drawn to an issue and the importance which the Tribunal is likely to attach to it. A mere casual reference to a matter which turns out to be central to the Tribunal's determination may be insufficient to meet a test of "drawing reasonable attention to factors which may to influence the Tribunal's determination".
Having identified the above principle it is necessary to consider its application to the facts of this case. Complaint is made that certain of the matters ultimately relied upon by the Tribunal in this case were not put, or adequately put, to the applicant in the course of the hearing. Complaint is also made that the s. 13 report of the Commissioner was relied upon without requiring the representative of the Commissioner to put the matters contained in it (which as I have indicated above contained findings which questioned the credibility of the applicant) to the applicant in the course of her evidence.
Under the first of the above headings complaint is made that the decision is invalid because it was not put to applicant that her explanation for not having sought protection was not tenable. I agree that this contention is at least arguable having regard to the test which I have, suggested is itself arguably the basis for considering the extent of the obligation to raise material adverse matters.
If the member did not regard the Applicant's evidence as credible then the determination arguably fails to demonstrate a reason for such a finding. See for example Zhucova and the cases referred to therein.
If, on the other hand, the member accepted the Applicant's subjective view on credibility but simply determined that it was not objectively well founded then same would appear to have been tainted by what is arguably an incorrect view of the country of origin information.
Under this heading I am, therefore, satisfied that the Applicant has made out an arguable case.
In respect of the second of the above matters I am not satisfied that the applicant has made out an arguable case. The statute, in express terms, requires the RAT to have regard, inter alia to the s. 13 report in the course of its determination. The applicant has an opportunity to consider the s. 13 report in advance of the hearing. The applicant is, therefore, aware of any of the matters which are set out in the s. 13 report and has an opportunity to deal with them in the course of evidence. I am not satisfied, therefore, that there is any obligation on the part of the Tribunal or the representative of the Commissioner to raise any such matters in the course of questioning the applicant. The applicant is already aware of any adverse concerns in the report and has a fair opportunity to deal with same whether by evidence or argument.
For the above reasons I am satisfied that the applicant has made out an arguable case in accordance with the requirements of the Act.
However I am not satisfied that the applicant has made out any case for the declaration sought at paragraph 2 of the notice of motion to the effect that "the only permissible decision of the second named respondent" … "is to allow her appeal against the said recommendation to refuse her application for refugee status". Furthermore in the light of the contents of this judgment it seems to me that the grounds upon which leave should be granted require to be more narrowly focused. In the circumstances I would propose adjourning the matter to enable the applicant to produce a statement of grounds which is consistent with the issues identified in the course of this judgment as being appropriate for the grant of leave.
Approved : Clarke J.