Record No. 2003 No. 542JR
HC 239/04
Between:
Applicant
Respondents
Record No. 2003 No. 550 JR
Between:
Applicant
Respondents
Judgment of Mr Justice Michael Peart delivered the 26th day of May 2004:
In these two proceedings the applicants are husband and wife and while there are some factual differences in each application, they can be conveniently dealt with together. The first proceedings (542JR) relate to the wife, and the second (550JR) relate to the husband, and for convenience I will refer to each applicant as "husband" or "wife" respectively.
Both husband and wife are Nigerian nationals who arrived in this country separately, the husband on the 24th November 2002 and the wife on 29th October 2002. Upon arrival each completed an ASY 1 form of application of a declaration of refugee status. Each belongs to the Yoruba Tribe, but whereas the husband's religion is Christian, the wife was born into the Muslim faith. She, however, converted to Christianity when she married her husband, and this has been the source of hostility from her family, both towards her and her husband, as they disapproved of her marriage to a Christian and her conversion to Christianity. This hostility is a ground relied upon in both applications, and I shall deal with it in more detail in due course. Each of them fears that they will be harmed or killed if they return to Nigeria. In the case of the wife, there is an additional ground relied upon, namely that 5 days after her arrival her she was required to be tested for HIV Aids, and that the result was positive. She was put on a course of treatment for this condition, and she says that this treatment will not be available to her in Nigeria.
Both the wife in due course received a letter dated 29th November 2002 from the Refugee Applications Commissioner stating that the Commissioner was of the opinion that her application was 'manifestly unfounded' on the basis of s.12(1)(a) of the Refugee Act,1996 ("the 1996 Act"), namely that her reason for leaving or not returning to her country of nationality does not relate to a fear of persecution.
The husband received a similar letter dated 22nd January 2003 stating that his application was considered 'manifestly unfounded', on the basis firstly of s.12(1)(a) of the 1996 Act, namely that his application "does not show on its face any grounds for the contention that the applicant is a refugee", and also on the basis of s.12(1)(c) of the 1996 Act, namely that "the Commissioner is satisfied that the applicant's reason for leaving or not returning to his or her country of nationality does not relate to a fear of persecution."
Both the husband and the wife were called for interview on different dates, and these interviews took place, following which each received a letter stating that the Commissioner had decided to recommend that each application is manifestly unfounded and that neither was entitled to a declaration as a refugee. A copy of the Recommendation and the reasons were furnished with each letter and each was informed of the right to appeal to the Refugee Appeals Tribunal within 10 working days from the date of the letter. That opportunity as availed of and in due course each appeal was considered and refused. Each was notified of this fact by letter dated the same date, namely 30th June 2003, each letter signed by the same Assistant principal Officer in the RAT, which certainly suggests that both appeals were considered together.
In the case of the husband the RAT decision dated 26th June 2003, after reciting the events alleged to give rise to a fear of persecution on the part of the husband, concludes as follows:
"I have carefully considered all the information available in relation to this appeal in accordance with Section 16916) of the Act and I find that the applicant has displayed no prima facie case to warrant the granting of refugee status. In particular, I find that the applicant was involved in an internal family dispute and, while the actions he refers to may have been contrary to law, the applicant has not demonstrated any nexus with the grounds for granting refugee status as set out in Section 2 of the Refugee Act, 1996, as amended."
In relation to the wife, the RAT decision, after reciting the events and facts alleged to constitute a fear of persecution on her part concludes as follows:
"I have carefully considered all of the information available in relation to this appeal in accordance with Section 16916) of the Act and I find that the applicant has displayed no prima facie case or grounds for consideration in a substantive manner on the issue of refugee status. In particular, the applicant has described a series of internal family disputes. The applicant herself had no difficulties with the police authorities in Nigeria and it was open to her to seek the protection of the State and she has not demonstrated any credible or plausible reason why such protection would not have been available to her. For this reason, I am not satisfied the applicant has demonstrated a prima facie case or that the reasons offered in her appeal have established any nexus within the grounds for granting refugee status as set out in Section 2 of the Refuge (sic) Act, 1996 (as amended) or the 1951 United Nations Geneva Convention on Refugees."
It is in respect of this decision that the applications are manifestly unfounded that each applicant seeks leave to apply for
identical reliefs in their Notice of Motion, namely:
1. A Declaration that the decision dated 30th June 2003, and the Recommendation dated 26th June 2003 are ultra vires and without efficacy;
2. A Declaration that the appeal process and the Decision of the RAT were carried out, conducted and concluded in infringement of the applicant's constitutional right to fair procedures and natural justice and in contravention of UNHCR guidelines and recommendations;
3. An Order of Certiorari quashing the said Decision and Recommendation;
4. An Order of Mandamus requiring the first and/or second named Respondent to remit the applicant's application for substantive investigation pursuant to s. 11(2) of the Refugee Act, 1996;
5. An injunction restraining the second named Respondent from taking any step pursuant to S.17(91)(b) of the Refugee Act, 1996 to affirm the decision to deny the applicant refugee status and/or make a proposal to deport and/or to deport the applicant;
6. If necessary, an extension of time for making this application.
Each applicant has sworn an affidavit to ground the application for leave. Each affidavit sets out the sequence of events which I have already outlined above in broad outline. In addition, each deponent has exhibited his/her ASY1 Application form, as well as the Questionnaire completed by them, and the notes of Interview, and also copies of the various letters received by them relating to the said decision and recommendation.
The wife's Questionnaire and Interview:
In her questionnaire she described her religion as "Muslim by birth". But later in the document she states that she is a member of "The Redeemed Christian Church of God Women Group" (Q.30a). She named one child, namely a son born on the 30th May 2000, who is with her.
At Q.26 she gave details as to why she feared persecution in the following words:
"Married to a man of another religion which my parents kicked against and have tried all their possible best to get us separated, but to no avail and now threaten to spray him with acid and make me numb and even said I should get rid of my pregnancy which is 34 weeks old. This had once happened about 4 years ago, my first pregnancy was forced out of me by them because they don't want my choice of man. We have to get married in a remote State from where they live but still they are everywhere with their Juju power and I don't want to take a risk with a 2 yrs old boy with me and expecting another soonest."
When asked at Q.27 "What type of persecution do you fear ?", she replied:
"That I might be killed, my husband might be killed and even my little boy too might as well be killed because they call him all sorts of names like outcast, foreign creature etc."
When asked at Q.28 "From whom do you fear persecution?, she replied:
"My entire family especially my parents and don't want to see him anymore and I don't want them to know my whereabouts"
When asked at Q.29e why she did not report her fears to the authorities, she replied:
"Because our Government in Nigeria doesn't listen to reports like this."
At Q.31 she confirmed in answer to questions in this regard that she had not been "mistreated or threatened" by either the Nigerian authorities, any group controlled by the Government of Nigeria, or by any group which that Government might be unwilling to control.
In Q.39 she stated at some length what she feared would happen if she returned to Nigeria. In summary she said that from what she had seen and heard she would be killed, and that this could happen in a number of ways, and she referred to poisoning and the use of black magic (known also as "Juju"). She said her husband and son would face the same fate. She also stated that her mother had been calling to her shop and causing a scene by shouting and calling her names. She also did not know as of the date of the questionnaire where her husband was, or whether he was dead as he has been missing for 9 days before her departure from the country. She referred to a cousin of hers facing the same sort of problem some years previously and that he was killed, as was his wife and a child. She says that although people said at the time that they had died from illness, she knows they were poisoned.
In Q.50 she was asked if there was any further information which was relevant to her application, and she replied in relation to the blood screening test carried out about 5 days after her arrival here, and that the result was positive for HIV. She stated that she was referred to the Mater Hospital where she was at that time receiving treatment, and that she had been informed that when her expected baby was born, it too would be treated for 6 weeks and that they would have to attend for check-ups. She went on to say that this type of treatment is not available in Nigeria, and that HIV patients "are seen as something else in Nigeria and are deserted."
At her interview she stated, according to the interview notes at page 5 thereof, that there were no reasons for seeking a declaration besides those set forth in the questionnaire. The interview provides some more precise information. It appears from the interview that she became a Christian in 1996, and the reason she gave as to why she did not get married in a church is that "if you have a church marriage it will be announced in church and my parents could hear about it from people in that church."
She also stated that she had never disclosed to her parents the fact that she was a Christian. She stated also that she first had problems in Nigeria in about February 1997 when her parents said they would kill her if she did not stop seeing the man who is her present husband because he was a Christian. She says that she went to her parents' family about this but that they would not support her. She left home in July 1997, and she says that her parents then stopped paying her school fees from them on. She did not go to the police about any of this because "the police won't listen to stories like that". She then recounts a visit by her father and another person to the house where she and her husband lived in "mid-1998". She says that they beat up her husband, and that he was bruised on his back and face, that he drove to hospital and returned after four hours, and they also broke the television in the house. She stated that she would not go to the police "because they are my parents, also the police would say that it is a family matter."
She went on to say that every week her father would come to her house and keep swearing outside the house, and that her husband's car windscreen was broken in 1999.This pattern of behaviour continued, she says, during 2000 – 2001, and that in March 2002 he came to the house ands said that he knew she was pregnant, and that he beat her with his fists and that when she was on the ground he jumped on her with his feet, and that in attempting to get away from him she jumped over a chair and fell breaking her left hip, following which she went to hospital where she stayed for three weeks. She said that her husband said they should not do anything about this beating but that they should move to somewhere else, and that did so by moving to Kano City in July 2002.
On page 12 of the interview she was asked why she decided to leave Nigeria in October 2002. She replied:
"The trouble was too much. My parents told me that I was going to die during delivery, I am not going to have the baby alive, that is it."
She was also asked to state "precisely" why she was seeking asylum. She replied:
"I am afraid that my parents will kill me and my husband because they don't want both of us to be together. The same thing happened to a male cousin of mine who was killed by his parents around 1994."
She gave another reason also, namely, that she could get "proper medical treatment her in Ireland". Finally she confirmed that they did not have problems when they lived in Kano City, that her parents did not know that they were in Kano, and when asked was there any reason why she could not return to Nigeria now, she replied:"I fear my parents."
It is clear from the Report and Recommendation of the RAC pursuant to sections 12(1) and 13(1) of the 1996 Act, as amended, and which is dated 21st February 2003, that he has misgivings in relation to credibility, and he explains why he has such misgivings. He describes the dispute between the wife and her parents as relating to their disapproval of the marriage, and he says that "in regard to persecution on the grounds of religion, the applicant at no stage asserted that she was prevented from practising her new religion. In relation to this particular claim there is no statement of any occurrence where the applicant was restrained or deflected from the exercise of her new religious beliefs."
The report also notes that no state protection was sought, and that the police were therefore afforded no opportunity to intervene since they were not made aware of any of the difficulties. The report also refers to there being no deterrent to living elsewhere in Nigeria, and that in the absence of any evidence to the contrary, there appears to be no reason why the applicant could not return to Nigeria. The report notes that no evidence has been given other than her own assertion as to events she has described.
This report concludes that her reason for leaving or not returning to her country of nationality does not relate to a fear of persecution for a Convention reason but relates to what is described as "an internal family dispute concerning the disapproval of her parents of her present partner".
In the section 11(2) Report, the authorized officer states "It was decided post-interview that there remained grounds for treating her claim as being manifestly unfounded".
Wife's grounding affidavit:
In her grounding affidavit, wife avers that in her questionnaire she made it clear that she was seeking refugee status by reason of her fear of persecution on grounds of her religion, and her status as a member of the category of persons comprising those with HIV who are denied essential medical treatment, and who are "subjected to desertion and stigma in Nigeria because of their status."
In this affidavit she also states that the RAT has fundamentally misunderstood the nature of the task with which he was charged and has erred in his consideration as to whether the claim is manifestly unfounded. She says that her fear of persecution and the past persecution clearly relate to the fact that she formed a relationship with and married a Christian and became pregnant, and rejected the Muslim faith of her parents, and that accordingly there can be no question but that her fear of persecution is for religious reasons, and she says that no reasonable adjudicator could have concluded that her fear did not relate to a Convention reason.
She also refers to the fact that the Tribunal member placed reliance on the availability of state protection in order to justify his conclusion that her claim was manifestly unfounded, and says that the very fact that he considered the availability of state protection means that her fear was related to a Convention reason, and that she had established prima facie grounds for this. She submits that the first task of the Tribunal member is to establish whether there is a fear of persecution on one of the Convention grounds, namely race, religion, nationality, member of a particular social group or political opinion. She submits that in any assessment of whether a claim is manifestly unfounded, the threshold of proof is extremely low, and that the member is required only to be satisfied that she had established a prima facie case that her fear relates to one of those reasons. She submits that it is only after that prima facie case has been made out that the member can proceed with the second limb of enquiry, namely whether the applicant could have availed of state protection. She also states that the member is not entitled to make credibility findings at the manifestly unfounded stage. He must take the applicant's case at its highest, and see whether fear of persecution is made out on a prima facie basis. She submits that questions of state protection is something to be addressed only at a substantive consideration of the application and not at the stage of considering whether it is manifestly unfounded, which she describes as a fast-track system for weeding out abusive and manifestly unfounded claims.
She also refers to the fact that in his conclusions the member has omitted completely to refer to the second reason put forward by her, namely her status as a HIV positive person, and thereby a member of a particular social group, and that she had referred to this and the absence of treatment for HIV in Nigeria. She says that membership of such a group has been accepted in some other jurisdictions as a sound basis for the granting of refugee status, and that the Tribunal member is under an obligation to give consideration to this ground.
Husband's Questionnaire and Interview:
The husband completed his questionnaire on the 8th December 2002. He indicated that he was claiming refugee status on religious grounds. In answer to the question as to why he feared persecution he stated that he was married to a lady from a different religion, namely a Muslim. He stated that his wife's family "kicked against the marriage", and threatened to kill him with the use of spiritual power and acid, and told his wife to get rid of her pregnancy. He said that after his wife left he was told by his family to disclose her whereabouts but he refused. He was also told that a hired killer would be sent to kill him. He said that he could not sleep and found it hard to work on the street because he knew that what was said was meant and that he had to run for his life.
When asked what type of persecution he feared he said "acid bath, spiritual attack and hire assassin (sic)"Q.27.
When asked from whom did he fear persecution he stated: "My wife (sic) family want me dead and my family" Q.28.
When asked why he did not report this to the authorities, he stated that it was due to the fact that the country is corrupt, and that government and law enforcement agencies can be bribed, and that the police are so corrupt that it is unsafe to go to them. Q.29e.
At Q.30 he confirmed that he had never been mistreated by the authorities, by a group controlled by the government, or by any group which the government is unable or unwilling to control. The same reply was given in relation to other members of his family.Q.36 and 37.
He also confirmed that he had never been arrested or detained or interrogated, or accused, charged or convicted in either his own or any other country. Q32a and b.
At Q. 39 he was asked what he feared would happen if he was to return to Nigeria. He stated that he knew that he would definitely be killed within two months because he knows that his wife's family are looking for him all over the country. He also stated that his wife's father is ex-military and that he would do anything and get away with it. He said that the military are dictators in his country and that they are above the law and cannot be arrested, and that returning would be like facing death.
This application was assessed, and the reason stated for considering it to be manifestly unfounded is stated as follows:
"1. Accepting everything that the applicant claims is true, he does not fall within the definition of a refugee. He may have left Nigeria in order to re-unite with his wife who came to Ireland in October 2002.2. There is strong evidence that the person made an application for a declaration as a refugee for a reason unrelated to a fear of persecution. From the details provided by the applicant it would appear that the applicant left Nigeria because of a family dispute between himself and his wife's family who disagreed with their marriage.2
The husband then attended for interview on 5th February 2003. He confirmed that he was satisfied that all the information given in the questionnaire is correct and that there were no other elements or reasons not contained therein.
He was asked why he left Kano City and he said that it was not safe there, because his father in law is an ex-military man. He confirmed that it was purely a family dispute, and that he had not got involved with the police because his father in law had, but he did not know what he reported to them. When asked why he had not gone to the police he said because he would be apprehended because his father in law is wealthy and highly influential. He was asked why he left Kano since he was not found there, and he replied that it was not settled or safe there. He mentioned also being harmed by Juju. When asked if there were any other reasons besides her father for his fear of returning, he stated: "For my life and kids because of the (his) family (sic)". He confirmed that there was nothing else that he wanted to add to the interview.
The s.11(2) report is dated 3rd March 2003, and the Report and Recommendation of the RAC pursuant to ss. 12(1) and 13(1) of the 1996 Act, as amended are dated respectively the 5th March 2003 and 8th March 2003. The recommendation was that husband should not be declared a refugee on the basis that the application does not show on its face any grounds for the contention that the applicant is a refugee (s.12(4)(a) of 1996 Act), and that the applicant's reason for leaving or not returning to his country of nationality does not relate to a fear of persecution (s. 12(4)(c) of the 1996 Act)
An appeal was lodged in the normal way, and following consideration the RAT affirmed the recommendation of the Commissioner, that the application is manifestly unfounded.
In his grounding affidavit the husband has pointed to the fact that there are no negative credibility findings contained in the decision of the RAT, and that therefore his accounts of events has to be accepted. He says that the RAT has misunderstood the nature of its task when assessing whether the claim is manifestly unfounded, and in deciding whether the applicant has made out a prima facie case. He says that there can be no question but that his right to marry whom he chooses and rear a family is under threat clearly because of his religion and his marriage to a woman from a Muslim background, and that no reasonable adjudicator could fairly conclude otherwise. He says that while it has been concluded by the RAT that it is an internal family dispute, he has failed to take into any account the fact that state protection was not available to him because of police corruption. In this regard he points to the fact that no adverse credibility finding has been made. He says that the material and facts put forward in the application process was certainly sufficient to merit a substantive investigation and consideration, rather than be dismissed as being manifestly unfounded where the threshold of proof at that stage is very low. He submits that the question of the availability of state protection is an issue for assessment in a substantive investigation, and that it is well accepted that a fear of persecution can arise from non-state agents, such as in the present case.
He says that RAT has failed to have regard to the UNHCR Guidelines concerning manifestly unfounded or abusive claims, and that such a finding has the very serious consequence that his application has been determined without his having the opportunity of a full and complete interview and oral hearing by way of appeal against a negative decision following an initial investigation.
Saul Woolfson BL on behalf of the applicants has expanded on the submissions contained in the grounding affidavits to which I have referred.
He has referred to the UNHCR Executive Committee (EXCOM) Conclusion No. 30 (XXXIV)1983 which deals with the question of manifestly unfounded claims and how they should be dealt with. This document gives some assistance as to which type of claim is covered by the term "manifestly unfounded or abusive claim". EXCOM at (d) of the Conclusion stated that it:
"Considered that national procedures for the determination of refugee status may usefully include special provision for dealing in an expeditious manner with applications which are considered to be so obviously without foundation as not to merit full examination at every level of the procedure. Such applications have been termed either 'clearly abusive' or 'manifestly unfounded' and are to be defined as those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 United Nations Convention relating to the Status of Refugees nor to any other criteria justifying the granting of asylum."
In this regard, Ms. Sarah Moorehead B.L.(but now S.C.) has referred the Court to the judgment of Mrs Justice McGuinness in the Supreme Court in V.Z. v. The Minister for Justice, Equality and Law Reform [2002] 2 IR 135, in which during the course of her judgment, the learned judge considered this EXCOM document and the procedures in relation to manifestly unfounded applications which were set out in what has become known as The Hope Hanlon letter. Those procedures, notified to the UNHCR at that time, are largely reflected in the provisions of the 1996 Act. The Court was referred to a passage from this judgment at page 159 in relation to the burden of proof in these applications, as follows:
"The burden of proof of establishing refugee status is on the applicant and it was open to the applicant whether at his interview, by additional submissions after his interview, or in submissions at the time of his appeal, to bring forward detailed evidence of his persecution on either of these (clearly convention) grounds. He did not do so and this in my view largely justifies the criticism of his claim made in this court by Counsel for the respondents."
The learned judge proceeded to refer to the reference in the UNHCR Handbook at para. 196 where the burden or onus of proof is one that is shared between the applicant and the examiner of the application. Para.196 of the Handbook states:
"196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statement by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases, a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal papers. Thus, while the burden of proof in principle rests with the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application…"
She went on to say that this paragraph had to be read in conjunction with the preceding paragraph 195 which states as follows:
"195. The relevant facts of the individual case will have to be furnished in the first place by the applicant himself. It will then be up to the person charged with determining his status (the examiner) to assess the validity of any evidence and the credibility of the applicant's statements."
The learned judge also referred to the fact that from the exhibits before the court in that case it was clear that the person assessing the application had obtained independent evidence of matters relevant to the applicant's evidence of persecution in his country. She stated at page 160 in that regard:
"This type of investigation would, I consider, be a major part of the duty to ascertain and evaluate that which is referred to in para 196."
Ms. Moorehead submitted that it is clear from the s. 13 reports in the present case that the RAC is comprehensive and that it was reasonable therefore for it to be concluded that the burden of proof upon the applicants had not been discharged, and that both applications were manifestly unfounded as not being based on a convention ground.
In the case of the wife, Mr Woolfson has referred to the low threshold of proof in manifestly unfounded cases, and in this case has also referred to the fact that in his decision the Tribunal member has completely ignored and overlooked one ground upon which she sought a declaration, namely the fact that she is a member of a particular social group, namely a HIV positive sufferer, and that in Nigeria such persons are marginalised and shunned in society and also that appropriate medical treatment is not available to her in Nigeria. Mr Woolfson submits that at least a prima facie case has been made out in this regard, and that it should be a matter for further investigation as to whether this is a valid ground in this case, but that it certainly cannot be dismissed as manifestly unfounded, especially where it does not appear from the decision and recommendation that the RAT has even given the matter any consideration. In his submission this is an error in the process.
He has referred to an extract from The Canadian HIV/AIDS Policy & Law Newsletter, Vol 3 Number 1 – October 1996 which refers to how the US Immigration and Naturalization Service (INS) appears to be taking a supportive position with regard to HIV positive applicants for US asylum from countries where life is particularly difficult for persons living with HIV/AIDS. A passage therein states as follows:
"Thus the General Counsel's memorandum does not go so far as to recognise a presumptive eligibility for asylum for HIV-positive aliens who find themselves in the US, but does suggest that the Service should be open and responsive to arguments in particular cases that within a particular country HIV-positive people may constitute a social group subject to official or quasi-official persecution severe enough to merit waiver of deportation and grant asylum." (my emphasis)
In relation to this ground, Ms. Moorehead has submitted that the HIV ground was merely alluded to in the application, and was not presented as a Convention ground, and that after the test was carried out which disclosed the fact, previously unknown to her on arrival here, that she was HIV positive for Aids, she indicated that she wanted to stay here for medical treatment.
In response to that submission, Mr Woolfson has stated that the fact of her HIV-positive status must be linked with her statement in answer to Q.50 in her questionnaire, that in Nigeria "HIV patients are seen as something else in Nigeria and are deserted", and to the question asked of her at her interview at page 12 of the interview notes: "Is there any other reason why you are seeking asylum in Ireland? To which she replied: "Yes, I can get proper medical treatment here in Ireland."
In relation to the fear of persecution on religious grounds, Mr Woolfson's submissions in relation both husband and wife are similar, since that ground is common to both. He refers to the fact that the RAT has found that while what happened may be contrary to law, there is no connection or nexus to a Convention ground for granting refugee status, and that the trouble has been simply characterised as an internal family dispute. Mr Woolfson has submitted that in this case there is clearly evidence of non-state persecution, namely persecution from the wife's family, and he submits that at least at a prima facie level it can be stated, as it has been by the applicants, that there is no police protection available to them since the police are said to be corrupt and they do not listen to complaints of this kind. He submits that the RAT has made no consideration of whether State protection is or was available to this couple.
Mr Woolfson has been at pains to submit that at the initial stage of the adjudication of these applications the adjudicator does not have to be satisfied that there is or is not a well-founded fear of persecution, but that the task is one confined to satisfying himself that there is or is not a prima facie case. He submits that a finding that a claim is manifestly unfounded is the equivalent of stating that there is no prima facie case made out. He refers to the wide nature of the forms that religious persecution can take and has referred to passages in Hathaway at pages 145 et seq. He submits that the questionnaires completed by each applicant and the interview notes pass the low threshold of proof to be passed for the purpose of a manifestly unfounded conclusion, and that the RAT has erred in law in concluding that the application is manifestly unfounded on grounds of religion.
In considering these applications I am concerned not with whether on the same evidence, information and facts this court would reach a different conclusion to that reached by the RAT, but rather whether there is some identifiable flaw in the manner in which the application process has proceeded, such as whether in reaching its conclusion it has had regard to, or placed too much weight upon irrelevant facts, or it has failed to have regard to, or not placed sufficient weight upon relevant factors. Alternatively, or in addition, the decision maker may have proceeded on an incorrect view as to the law, or may have failed to observe fair procedures. These are some of the bases to be relied upon in judicial review proceedings.
As far as the burden of proof is concerned, the onus of course is on the applicant in the first instance, to put forward the necessary facts and submissions on which the application is based. From those facts the decision maker at the initial examination of the application, such as in this case, must be able to identify a ground or grounds which could amount to well-founded fear of persecution on a Convention ground. The threshold to be passed by an applicant at this very early stage is necessarily lower than that which exists on a fuller examination of the application once the applicant has overcome the task of getting beyond the "manifestly unfounded or abusive" category of application. It is perhaps at that later stage that the sharing of the burden of proof between the applicant and the examiner, which is referred to in the Handbook and in the judgment of McGuinness J. in V.Z. v. The Minister for Justice, Equality and Law Reform (supra) assumes its greatest importance, but even at the initial stage, it must be appreciated by those handling the application that an applicant might have difficulty articulating grounds clearly and precisely, or might not appreciate that particular weight might attach to one fact rather than another. In this regard I refer to the somewhat late reference in the wife's interview to the fact that she was relying on the HIV ground as a reason for seeking asylum, and that the reference to it is brief. It has been contended by Counsel for the Respondent that this indicates that this ground was not really being relied upon, and that it was just something mentioned almost in passing, and this was why it is not referred to in the Recommendation of the RAT. It is also contended that the lack of or low standard of medical care for HIV patients in Nigeria would not, even if it were proven to be so, be a ground under the Convention for claiming refugee status. I have been referred to material by Mr Woolfson which at least lends support to the submission that in some circumstances, such as where HIV positive sufferers are shunned in society, or isolated or ostracised as a social group, or may be refused or discriminated against in relation to, treatment. I have already referred to the Canadian HIV/Aids Policy & Law Newsletter in this regard, and I also now refer to a decision of the Federal Court of Australia in Kuthyar v. The Minister for Immigration & Multicultural Affairs [2000] FCA 110. The plaintiff in that case was a native of India, but who was, after arrival in Australia, diagnosed with HIV/AIDS, believed to have been contracted during a primitively performed circumcision. There was medical evidence that if returned to India the plaintiff was likely to suffer discrimination in a number of ways as a result of his HIV/AIDS status, such as employment, social isolation, housing and so on. It was also a fact that treatment in India was sub-standard. The Tribunal rejected his account of how he might have contracted HIV/AIDS, and other grounds on the basis of credibility. The Court in its judgment stated in this regard:
"To determine that accounts of this detail and particularity are untrue is to assert, not that the applicant has erred or been inconsistent, but that he lied about them. In fact the delegate made no adverse findings as to the applicant's truthfulness about the matters, but found that the circumstances surrounding his claims were 'unusual'. The Court has often expressed the need to scrutinise with care such rejections by an inquisitorial tribunal to determine their correctness in law. With all the benefits for the ascertainment of truth available in adversarial proceedings, and this society's experience with them, rejection of cases as fabricated and fraudulent is not common. It should not be resorted to by tribunals which are both interrogator and judge without ample grounds."
The Tribunal had stated in relation to his fears of persecution on account of his HIV/AIDS status:
"Given independent information about treatment of people who are HIV positive in India, I can understand the applicant's fear about what might become of him because of his medical condition if he were to return to India and consider that it could be reasonably found that people who are HIV-positive might constitute a particular social group. However, the central question to address in relation to the applicant's medical condition is whether what he might experience if he were to return to India is persecution within the meaning of the Convention."
The Tribunal then went on to consider country of origin information about the quality of treatment available in India, and the applicant himself put forward similar information, all of which was considered. The decision of the Tribunal was that while the applicant may well be a member of a particular social group, it was not satisfied that the treatment of that social group constituted persecution within the meaning of the Convention. The Court in its judgment on the other hand said that while that finding might not be erroneous, the real question was:
" whether the Indian authorities are in a position or are trying to protect HIV sufferers from the persecutory discrimination which it appears to be admitted does occur. It seems that the Tribunal simply failed to consider whether the applicant was reasonably unwilling to return because he could not avail himself of any such protection. In my view this omission manifests an error in law….."
I have referred to this decision at some length because it in my view correctly identifies the task of the Tribunal in the present case once the wife stated in her application the fact that people with HIV were "something else in Nigeria and are deserted", and after she again referred to medical treatment for AIDS in her interview, as I have outlined. In my view this issue of possible discrimination suggested by her phrase "are seen as something else and are deserted" needed to be considered separately from the religious ground. At that stage of the application, the threshold is low. It is beyond any doubt that she had been diagnosed as HIV-positive, and it therefore became a possibility once she articulated this in the limited way she could, that there might be discrimination against the group of HIV positive sufferers, and that the sharing of the burden of proof then kicked in so to speak in the sense that it then became necessary to pass on to a further stage of investigation of the application, perhaps by obtaining any available country of origin information about the condition or plight of HIV positive sufferers in Nigeria. It, at the least, merited investigation. She might as a result be part of a particular social group exposed to discrimination in Nigeria.
Certainly, in my view, there has been an error on the part of the RAT in failing to even consider that aspect of the case. It seems to have been overlooked by the Tribunal when arriving at its conclusion that the application of the wife is manifestly unfounded. I will allow her application for leave to seek relief by way of Judicial Review as sought at paragraph D, subparagraphs A, C, D, E, and G, on the Ground set forth at paragraph E, subparagraph D of the Statement of Grounds filed herein.
That ground upon which I have granted leave to the wife does not apply to the husband's application. His ground is related solely to religious persecution, and is the same as the second ground relied upon by his wife. That issue can now therefore be dealt with in relation to both the wife and the husband.
One question to be decided is whether there was evidence available to the Tribunal from which it could conclude that the trouble experienced by the applicants and which caused them to flee and not wish to return, was simply an internal family dispute arising from the marriage of a Muslim lady to a Christian man. The answer to that question must be in the affirmative. The applicants in their questionnaire and interview in fact confirm that it was a family dispute and that their fear is of harm from the wife's family and each of them specifically state that they have never been threatened by the authorities in Nigeria, and that neither have their families.
Another question is whether there is any evidence available to the Tribunal which they overlooked and which might have indicated that the applicants were at risk of persecution from the Nigerian authorities either in the practice of their religion, or as a result of their religion in matters such as education, housing, health, employment and so on. It is clear that there has been no such allegation contained in the information provided by the applicants.
The only link sought to be made between what they suffered and the authorities is the allegation, in response to the fact that they never made any complaint to the police that they were being threatened and harassed by the wife's family, that the police are corrupt and that they do not take any notice of complaints of this kind. In my view this falls so far short of any suggestion of a systematic discrimination on religious grounds on the part of the State authorities, and in particular the police, against Christians, and it was completely open to the Tribunal to conclude that this ground is manifestly unfounded. But strictly speaking once the conclusion was that the trouble sprang from an internal family dispute rather than discrimination at the hands of the authorities, it was not even necessary to consider whether or not State protection was or was available to them. It seems to be only where a well-founded fear is found to exist that a further enquiry must then be embarked upon to see whether, inspite of that fact, State protection is available. If not, then a declaration can be made. But in the present case the Tribunal found that what was complained of as religious persecution was manifestly unfounded in the first place. So the second limb of enquiry was not in fact required. But, nevertheless, it appears clear from the information provided by the applicants that no effort or attempt to make complaint to the police was made at all.
The UN handbook at paragraph 72 is of assistance in determining what can amount to religious persecution. It states as follows:
"Persecution for 'reasons of religion' may assume many forms, e.g. prohibition of membership of a religious community, of worship in private or public, of religious instruction, or serious measures of discrimination imposed on persons because they practise their religion or belong to a particular religious community."
Certainly there is nothing in that paragraph which could assist the applicants in the light of what they have complained of. There must be discrimination perpetrated by the State or its emanations for behaviour to amount to persecution. The applicants have referred to the fact that the police would take no notice of their complaints, and they have also made the broad allegation that the police are corrupt. But that is not sufficient.
Mr Hathaway in his well-known work already referred to by me, deals with the components of 'persecution'. At page 110 in a paragraph headed "Persecution as the Sustained or Systemic Violation of Basic Human Rights from a Failure of State Protection" he states:
"The traditional Canadian formulation of the persecution standard focuses on the existence of persistent harassment by or with the knowledge of the authorities of the state of origin. It involves the constant infliction of some mental or physical cruelty, persistent efforts to harm or cause to suffer, and pursuit with enmity, such as to provoke an irrepressible fear of asking the authorities……for protection."
He also refers to statement of what he calls the "core test" as stated in the case of Gladys Maribel Hernandez, Immigration Appeal Board Decision M81-1212, January 6, 1983 as follows:
"The criterion to establish persecution is harassment, harassment that is so constant and unrelenting that the victims feel deprived of all hope of recourse, short of flight, from government by oppression."
He comments that this link of harassment with persecution highlights "the need to show a sustained or systemic risk, rather than just an isolated incident of harm."
These comments provide a very clear and definite backdrop against which the applicants' claims of religious persecution must be judged, even for the purpose of the initial assessment as to whether they are 'manifestly unfounded'. In my view there is nothing in the manner in which this ground was assessed in each case which supports the contention that the RAT was in error either in law or on the facts, in deciding that the applications were manifestly unfounded on religious grounds. Not even a prima facie case is made out on that ground. There is nothing in the information provided which has been overlooked for consideration of this ground, and neither was there any irrelevant facts or information taken into account which ought not to have been. All due consideration was given to all relevant facts, and the task was approached on the basis that everything alleged was true.
I therefore refuse leave to the wife on all grounds save that related to her HIV-positive status, and refuse the husband's application for leave in its entirety.