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Cite as: [2008] IEHC 219

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Neutral Citation: [2008] IEHC 219

Neutral Citation No: [2008] IEHC 219

THE HIGH COURT

2006 1034 JR

BETWEEN

E. O.

APPLICANT

AND

THE REFUGEE APPEALS TRIBUNAL,

THE MINISTER FOR JUSTICE, EQUALITY & LAW REFORM,

IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

EX TEMPORE JUDGMENT OF MR. JUSTICE BIRMINGHAM delivered on the 26^thday of June 2008

This is an application to seek judicial review of a decision of Refugee Appeals Tribunal ("RAT") dated 3^rd October, 2005 but issued on 17^th July, 2006, which affirmed a recommendation of the Office of the Refugee Applications Commissioner ("ORAC") that the applicant should not be declared to be a refugee.

This is a case to which section 5 of the Illegal Immigrants (Trafficking) Act 2000 applies and, in consequence, the applicant is required at this stage to establish substantial grounds. As is now well known and barely requires repeating, the Supreme Court in In re Article 26 and the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 approved the views of Ms Justice Carroll in McNamara v. An Bord Pleanála (No. 1) [1995] 2 ILRM 125, who had interpreted the phrase "substantial grounds" as being equivalent to reasonable, arguable or weighty as opposed to trivial or tenuous.

Factual Background

The claim for asylum is advanced in the following circumstances. The applicant is a Nigerian national, born on 6^th May 1984. She is the mother of a young daughter who was born in Ireland on 14^th February 2005, some six or seven weeks after the arrival in this State of the applicant. The applicant's parents were worshippers of the local deity or 'Odo' and when she finished secondary school in 2000, her father told her that she would be required to become the assistant to the Chief Priest. The timetable isn't 100 percent clear but it seems that both the applicant and her parents converted to Christianity and thereafter she disapproved of idol worship.

The applicant states that this religion holds a festival every second year at which a Shrine is worshipped by the presentation of human skulls. Such a festival was scheduled for February 2004 and at that festival the applicant was to undergo an initiation rite which involved Female Genital Mutilation. The applicant refused to go along with this and her father was informed that by reason of her failure to comply with the wishes of the Chief Priest, she was to be stoned to death.

The applicant claims that on 20^th October 2003, Odo believers attacked the family home, in which she and her parents were. They were beaten with sticks but the applicant escaped through a window and evoked the assistance of a Sr. Grace. Prior to this incident the applicant's father had reported the matter to their Parish Priest but he didn't report the matter to the police because the police hadn't acted on foot of a previous report of a similar nature. Instead it appears that both the priest and her father prayed for the applicant's safety.

Sr. Grace brought the applicant from her home in the village of Enugu to a place called in Isha in Osun State, which was some 450 kilometres distance. There they stayed for some ten months. The Tribunal Member records the applicant as saying that she was located by Odo people by means of their spiritual powers. Mr Hugo Hynes, Senior Counsel on behalf of the applicant, has pointed out that a more nuanced explanation was provided during the course of her ORAC interview where she had answered a question as to how she was located by saying "They have spiritual powers. They have money and can get any information they want on people. Rich people worship the Odo", and I bear that in mind.

From Isha, she moved to Lagos, where she stayed for two months before travelling to Ireland via Amsterdam in the company of an agent. She states that she travelled with a false passport bearing her picture but not her name.

The RAT Decision

The Tribunal Member took the view that there could not be said to be a failure of State protection when she had not reported her fears to the police in Enugu, in Osun State or in Lagos, referring in that context to country of origin information that there is usually no forced recruitment to secret societies and that where traditional religious beliefs have resulted in criminal activity that the Nigerian police investigate.

The applicant's account of the attack on her parent's home and her escape therefrom was regarded as incredible, the Tribunal Member expressing the view that it was most unlikely that if she was the intended victim of the idol worshippers that she would have escaped. Not surprisingly, the Tribunal Member rejected the suggestion that the applicant could have been located by the Odo worshippers by reason of their spiritual powers. In addition, the Tribunal Member commented that the applicant had demonstrated an ability to safely relocate by moving to Lagos, pointing out that she had not come to any harm either during her time in Osun State or in Lagos.

The Issues in the Case

Four grounds are essentially advanced for the challenge, which I would summarise as being;

a. Delay,

b. Religion as the basis for persecution,

c. The question of relocation as an issue, and

d. The assessment of credibility.

(a) Delay

This challenge arises in the following situation: the RAT oral hearing took place on 3^rd July 2005; the Tribunal Member's decision is dated 3^rd October 2005, and the decision was issued on 17^th July 2006.

The applicant's rely on the decision of Ms. Justice Finlay Geoghegan in Biti v. The Refugee Appeals Tribunal [2005] IEHC 13, where a number of English cases were reviewed. Significant delay is obviously undesirable, first because delay between decision and hearing may result in memory fading particularly given that there is no transcript available, and secondly because the confidence of an applicant in the process may well be undermined. However, in this case the delay has been explained by way of an affidavit from Mr. Philip Sullivan of the Refugee Appeals Tribunal. Essentially it appears that at the RAT oral hearing, the Presenting Officer queried the authenticity of death certificates in relation to the applicant's parents that had been presented by her and introduced as part of her narrative. Thereafter the Refugee Legal Service ("RLS"), who were acting on behalf of the applicant, sought an opportunity to produce further information and indeed it appears that they took various steps to advance matters.

On 31^st May 2006, the RLS emailed the RAT to say that they were still attempting to confirm the authenticity of the documents. Only when no further information was forthcoming at any stage throughout June did the RAT decision issue. I am quite satisfied that the apparent delay is fully explained and was at the very least contributed to by the applicant. I am strengthened in my view that this element of the challenge is without merit by the fact that the applicant has not pointed to any area where the evidence was misstated in a manner which might be attributable to lapse of time.

(b) Religion as the Basis for Persecution

The second aspect of the present challenge arises in these circumstances. The applicant, in her ORAC Questionnaire, indicated that the basis of her claim was that she faced persecution by reason of her religious beliefs. Her appeal to the RAT referred to religion and, in addition, to membership of a particular social group. In the course of her decision, the Tribunal Member referred to and quoted accurately and in full the definition of refugee in section 2 of the Refugee Act 1996. However, when it came to introducing the analysis of the claimed section she began by saying that she had to determine whether the applicant was a person who owing to a well-founded fear of being persecuted by reason of race/nationality and/or imputed political opinion.

There is no doubt that the failure to refer to religious belief was an error; however, in my view it is an error that was entirely immaterial. The whole body of the decision addresses the claim that was advanced by reference to the applicant's refusal to go along with the wishes of the High Priest. In these circumstances I cannot believe that there are any substantial grounds for contending that the absence of the reference to religion undermines the decision. Rather, to use the language of Ms. Justice Carroll, such arguments could be categorised as trivial or tenuous.

Mr Hynes has referred to UNHCR guidelines for dealing with claims on the basis of religion. Those guidelines point out that these can be particularly difficult claims to assess and require particular care but they provide no basis for the suggestion that the consideration of the issue in this case was defective.

(c) The Question of Internal Relocation as an Issue

It is suggested that the fact that the issue of relocation was canvassed by the Tribunal Member is inappropriate, in that relocation would arise as an issue only if the Tribunal Member concluded that the applicant was at risk of persecution. That argument, while undoubtedly having certain logic, does not address the structure of the decision. Ms. Siobhan Stack, counsel on behalf of the respondent, makes the point that read as a whole, it is clear that the decision was on the basis that State protection had not been sought, that her account of her escape wasn't credible, and that in any event if the account was credible, which it was not, that internal relocation would have been available. I can see nothing objectionable in the fact that the issue of relocation was canvassed, nor can I see that the conclusion reached was unreasonable. The best possible evidence that internal relocation is feasible is that it is actually being achieved.

In a sense linked with the question of internal relocation is the question of state protection. The applicants have referred to the decision of Finlay Geoghegan J. in Kramarenko v. The Refugee Appeals Tribunal [2004] IEHC 101 which in turn refers to the observations of LaForest J. in the case of Canada (A.G.) v. Ward [1993] 2 SCR. Finlay Geoghegan J. quotes LaForest J. as follows:-

"I prefer to formulate this aspect of the test for fear of persecution as follows: only in situations in which state protection "might reasonably have been forthcoming", will the claimant's failure to approach the state for protection defeat his claim. Put another way, the claimant will not meet the definition of "Convention refugee" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities; otherwise, the claimant need not literally approach the state."

I think there can be no doubt that the Tribunal Member was saying that the applicant's claim was defeated because State protection might reasonably have been available and that it was objectively unreasonable for her not to have approached the State authorities either in her home area in Osun State or in Lagos. Having regard to the country of origin information which was available to her, information that had been sourced by ORAC, that was not at all an unreasonable conclusion for the Tribunal Member to come to. In the case of N, E and O v. The Minister for Justice, Equality and Law Reform [2008] IEHC 107, Charleton J. pointed out that the size and scale of Nigeria cannot be ignored when questions of relocation arise.

(d) The assessment of Credibility

The applicant complains that the Tribunal Member engaged in an impermissible exercise in conjecture and speculation. There is no doubt that a decision based on wild speculation cannot stand. As Peart J. pointed out in Da Silveira v. The Refugee Appeals Tribunal [2004] IEHC 436, gut feeling is not enough. However, that is not to say the Tribunal Member must accept without challenge or question every account presented, rather the member must weigh, assess and analyse and may draw inferences. In my opinion, the view reached that it was most unlikely that if the applicant was the target of idol worshippers who had called to the house where she was residing that she would be able to escape in the way she did was one that was open to the Tribunal Member.

The Tribunal Member was required by statute to have regard to the matters identified in section 11B of the Refugee Act 1996 (as amended). In that regard, it might not seem surprising that the Tribunal Member concluded that serious credibility issues arose from the applicant's account that she was able to fly from Lagos to Amsterdam by air in the company of an agent on a false passport and then on to Dublin, passing through immigration at both airports without difficulties.

In summary, I am firmly of the view that no substantial grounds for challenging the decision have been established and in those circumstances, I must refuse the relief sought.

Approved: Birmingham J.