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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> K.D. (Nigeria) -v- Refugee Appeals Tribunal & ors [2013] IEHC 481 (01 November 2013)
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Cite as: [2013] IEHC 481
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Judgment Title: K.D. (Nigeria) -v- Refugee Appeals Tribunal & ors Neutral Citation: [2013] IEHC 481 High Court Record Number: 2009 623 JR Date of Delivery: 01/11/2013 Court: High Court Composition of Court: Judgment by: Clark J. Status of Judgment: Approved |
Neutral Citation: [2013] IEHC 481 THE HIGH COURT JUDICIAL REVIEW Record No. 2009 / 623 J.R. Between:/ K. D. [NIGERIA] APPLICANT -AND-
THE REFUGEE APPEALS TRIBUNAL AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM RESPONDENTS JUDGMENT OF MS JUSTICE M. H. CLARK, delivered on the 1st day of November 2013. 1. The applicant claims that she has suffered persecution by reason of her membership of the Osu caste in her native Nigeria and that she fears further persecution if returned to her country of origin. Both the Refugee Applications Commissioner and the Refugee Appeals Tribunal recommended that she should not be granted refugee status. The Tribunal Member seems to have accepted that she is Osu and that the Osu face persecution, but he found that the protection of the Nigerian State is available to her and that she could reasonably be expected to relocate outside of Igboland where the Osu caste system is confined. The applicant therefore seeks an order quashing the decision of the Tribunal dated the 21st April, 2009. A telescoped hearing took place on the 18th June, 2013, at which Ms Eve Bourached B.L. appeared for the applicant and Mr Daniel Donnelly B.L. appeared for the respondents. Background 3. Her own claimed circumstances were that she was born in Imo State in 1981 and completed her secondary education there before moving to Enugu State where she was self-employed as a hairdresser. In 2003 when she and her boyfriend, who was Igbo, discovered that she was pregnant, they decided to marry. When she told him of her Osu status he was furious and demanded that she terminate the pregnancy. She refused and he abandoned her. Their son was born in 2004 and he now lives with one of her older sisters in Port Harcourt. In 2005 she began a relationship with another Igbo man. She disclosed her Osu status at an early stage of their relationship. He was a Christian and did not believe in outcasts and therefore did not object. However his family refused to accept their relationship once they discovered she was Osu and they walked out of the family marriage negotiations. His father and brother also verbally abused her. When she became pregnant in June 2006, his three brothers came to her house and physically assaulted her so that she miscarried. Her neighbour brought her to hospital and called the police who arrested her partner’s brothers. A week later when she was released from hospital she went to the police station and gave a statement. By then her attackers who had been arrested had been released on bail and the police said her intended father-in-law had promised he would sort things out as it was a family matter. 4. The applicant thereafter hid from her prospective in-laws, but they became aware of the continuing relationship when she was seen at a party with her fiancé and she was again threatened at her home by the father-in-law. The following month, November 2006, she returned from visiting her aunt to find her house on fire. Her neighbour told her that the thugs who set fire to the house believed she was in the house and intended to kill her, and advised her to disappear. She went to the State headquarters of the police and made a statement. They sent people to investigate and arrested her fiancé’s brothers but advised her to go abroad to save her life. Her fiancé took her and her son to her sister’s house in Port Harcourt but one of his brothers followed them there. The applicant fled through the back door and her fiancé brought her to Lagos where he paid an agent to arrange her travel to Ireland, leaving her son behind. Her fiancé also remained behind and it is unclear whether she is still in contact with him. 5. The applicant submitted a number of documents in support of her claim. These included a letter from the Commissioner of Police of Enugu State to the Assistant Inspector General of the Nigerian Police dated the 20th November, 2006,1 a letter from her local maternity hospital dated the 25th June, 2006, a photograph of a terrace of at least four houses destroyed by fire and her birth certificate. In December 2006 she was informed that the Commissioner had made a negative recommendation on the basis of both credibility grounds and the availability of a relocation alternative. In his Section 13 report 2 the Commissioner found that the applicant “had supplied limited knowledge regarding outcasts in Nigeria and could possibly have provided more information in that regard.” However no other finding was made on her Osu status. The Commissioner said he could not verify the authenticity of the documents submitted and that it was impossible to prove or disprove the allegations made. It was reasonable, he said, to expect her to relocate within Nigeria and she had not provided a reasonable explanation for failing to do so. He also felt that the police would surely have attempted to investigate her claim rather than advise her to leave Nigeria. Her account of her travel to Ireland was also disbelieved. 6. In January 2008 the applicant’s solicitors submitted a Notice of Appeal to the Tribunal which was supplemented shortly afterwards by detailed grounds of appeal and written submissions. In relation to internal relocation it was noted in the submissions that she is a single mother without family ties or connections. Over the following months the Tribunal was furnished with a volume of COI relating to the Osu caste system and with six previous positive Tribunal decisions relating to applicants claiming persecution because of religious inter-marriage in Nigeria, including between Osu and non-Osu. The Impugned Decision 8. In relation to state protection, the Tribunal Member rejected her claim that she received no protection from the police as her assailants had been arrested and detained in custody, and bail was apparently set and paid by her fiancé’s father. He concluded that the police did intervene and had not considered the assault to have been a purely domestic issue. He noted that although it is frequently alleged that the Nigerian police are corrupt, there was no suggestion in this case that the police were corrupt, partisan or under pressure as a result of financial inducements. He found that, according to the applicant’s evidence, the police acted in accordance with the requirements of their office. He referred to information on police corruption from a Nigerian NGO, the Constitutional Rights Project, which says that legal assistance is available to victims of human rights abuses and that if a person suspects the police have been induced to bury a complaint, the person can take the complaint to a different level and furthermore a somewhat similar attitude was taken by the founder of another human rights group based in Port Harcourt. He found it implausible that the police told her to leave Nigeria when she went to them after her home was burned down. The police knew she had been severely assaulted and it was not credible to suggest they would tell her to seek protection elsewhere. Referring again to two named COI reports he observed that illegal acts such as threatening behaviour are criminal offences and would be treated as such by the Nigerian authorities. 9. On internal relocation the Tribunal Member noted the applicant’s evidence that she was unwilling to relocate as she was not familiar with any part of Nigeria other than the south-east, i.e. Enugu and surrounding areas. He found this difficult to understand since she had left Nigeria and come to a totally alien environment rather than relocating to a place like Port Harcourt. He also found that the Igbo presence in Nigeria centres around the south-east and that the Osu caste system is indigenous to Igbo culture and is not recognised in other parts of Nigeria where there is little Igbo influence. He concluded that “The Applicant failed to discharge the burden on her by satisfying the Tribunal that she would be unable to relocate elsewhere in Nigeria”. He therefore made a negative recommendation. The Submissions
(ii) Reached irrational, perverse and unreasonable findings on state protection in light of the COI furnished which clearly indicates that the state apparatus is unable to protect the Osu and that anti-discriminatory laws are seldom enforced; (iii) Relied on COI on state protection which is irrelevant to the claim and which was not disclosed to the applicant in breach of Section 16(8) of the Refugee Act 1996; (iv) Erred in failing to identify a location to which the applicant could relocate and as such acted in breach of Regulation 7 of the ECs (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006). (v) Erred in law in finding that the burden was on the applicant to establish that relocation to another part of Nigeria was not a valid option; (vi) Failed to have regard to the COI before him which suggests that it would be unduly harsh to expect the applicant to relocate; and (vii) Failed to have regard to previous decisions furnished, two of which are relevant. THE COURT’S ANALYSIS 13. The unusual background to this case is that although volumes of COI describe the ingrained hostility and fear of contamination of the Igbo generally to those labelled as Osu, who generally lived in segregation, the applicant’s narrative indicates that until the question of marriage arose she did not suffer any personal discrimination based on her Osu status, whether in education, free movement, employment, access to the police or health services. She did not live in a designated Osu area; she travelled freely from her home state of Imo to Enugu; she enjoyed a full secondary education; she worked in direct personal physical contact with the general Igbo community as a hairdresser and she rented an apparently large house in the town where she raised her son as a single mother. Her lifestyle did not match any description of Osu being shunned generally as she described an apparently normal life spent visiting, working, dating, attending parties and living in ordinary Igbo society. She either knew remarkably little about the Osu or she chose to volunteer little information: this was remarked upon by the Commissioner but not by the Tribunal. Her main complaint at her Section 11 interview was that her sisters did not marry and her mother was ‘sent away’ with no further elaboration. Her problems began only when her intended in-laws met her own family in preparation for a traditional marriage. At that stage she suffered the full effects of the cultural prejudices against the Osu and the culturally accepted taboo of marriage between Osu and non-Osu. While this Court may look with a degree of sceptical enquiry at the foolhardiness of any stigmatised group (where marriage outside their caste is forbidden) engaging in pre-marriage negotiations for a traditional marriage without first establishing that each party was aware in advance of each other’s social status, tribe and village, this issue was not canvassed by either decision maker. The case made was, unlikely as it may be, that a meeting was arranged between the applicant’s family3 and her fiancé’s family in preparation for a traditional marriage, where customs are paramount, and when the realisation dawned that the applicant was Osu, the prospective in-laws were aghast at the idea, withdrew from the negotiations and forbade the marriage. 14. None of these odd features were remarked upon by the Tribunal Member who focused on the wider issue of forbidden inter-marriage with Osu. Notwithstanding the applicant’s description of her life as one of apparent participation in the community at large, he recited the generally acknowledged fact that society’s contact with the Osu caste is purely superficial, that intermarriage is usually forbidden and that while some states have enacted laws outlawing discrimination against the Osu, these laws are seldom enforced. He accepted that the Osu caste system places culturally defined limits on individual members in terms of mobility and interaction and that serious relationships of love or inter-marriage between the lower caste and the rest of the community are usually forbidden, clearly demonstrating that he was aware of the discrimination faced by the Osu as outlined in the COI furnished by the applicant. He was also clearly aware that the views described in the reports, blogs and articles submitted by the applicant and attributed to her prospective in-laws were held by the Igbo at large, and that the Osu are denied the opportunity to fully participate in the political, economic and social life of the community. He did not seek to minimise the indefensible treatment of the Osu by the Igbo community which was described in the applicant’s COI. 15. As he made no credibility findings, it must be implied from his decision that he accepted that the applicant was indeed Osu, that she suffered a threat of death at the hands of her fiancé’s family because she was Osu and that the highest placed police officer in Enugu State wrote to his regional superior reporting his advice to the applicant that for her own safety she should leave the state. 16. On that basis, the decision to affirm the Section 13 recommendation that the applicant should not be declared a refugee is squarely based on two findings - (i) state protection was available notwithstanding that she was Osu and (ii) she could reasonably be expected to relocate internally. The applicant challenges and the respondents defend both of those findings. State Protection 18. What is not clear about the decision on state protection is whether the Tribunal Member simply did not believe the applicant’s claim that she was advised to leave – perhaps a reasonable conclusion – or whether he did not believe that she made a complaint in respect of the second (arson / attempted murder) incident. He did not mention the quite extraordinary police report in which the head of police in Enugu State outlines the applicant’s problems with her in-laws and then seeks the approval of the regional supervisor of his proposal in these terms:-
20. If the veracity of the letter was accepted, as appears to be the case, it indicates a second instance of investigation followed by arrest arising from a complaint made by the applicant and supports the Tribunal Member’s finding that the police acted in accordance with the requirements of their office. However, it also (somewhat illogically) indicates that the police at the highest level accepted that they were unable to protect the applicant even though they had arrested members of her fiancé’s family. It is not clear from the Tribunal decision if the letter was accepted or even considered. In the circumstances, the finding on the availability of State protection is lacking in clarity and is incomplete. Internal Relocation 22. The assessment of internal relocation is governed by Regulation 7 of the ECs (Eligibility for Protection) Regulations 2006 (S.I. No. 518 of 2006) – commonly known as the ‘Protection Regulations’ – which provides:
(2) In examining whether a part of the country of origin accords with paragraph (1), the protection decision-maker shall have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.” 24. The Tribunal Member’s conclusion on internal relocation was based on two preliminary findings: - (i) the Osu have significant problems but those problems are restricted to Igboland in south eastern Nigeria; and (ii) the police were in a position to protect the applicant from her in-laws. On the issue of the applicant’s willingness to consider relocation outside of Igboland he found her rationale that she would know no-one there unreasonable in light of her decision to travel to Ireland – an alien country where she has no family support and is without her son and fiancé. It was therefore found that she had not discharged the “burden” of satisfying him that she would be unable to relocate. 25. In the Court’s view, there could be no argument with the Tribunal’s factual findings if the Tribunal Member had fully discussed his suggested relocation area of Port Harcourt with the applicant at the appeal hearing and if he had conducted an inquiry into whether, having regard to her personal circumstances and the conditions on the ground in Port Harcourt, she could reasonably be expected to stay in Port Harcourt and whether meaningful state protection would be available to her there. 26. There is no doubt that persons acknowledged to be at risk in one locality of a country may lawfully be refused refugee status on the grounds that protection is available elsewhere inside the state of origin 5 If, following a careful inquiry, it is established that a claimant could reasonably be expected to stay in another part of his/her own country where there is no risk of persecution for a Convention reason or where meaningful protection from such persecution is available, that claimant can lawfully be refused recognition of refugee status. 27. However, it seems to the Court that the Tribunal was in error when he held that this particular applicant bore the “burden” of establishing that she could not relocate. While the reasons she offered were insubstantial, the burden fell on him to conduct a shared investigation on the availability of a safe relocation area once he found that she was at risk of future harm because of her membership of a particular social group (the Osu), who are targeted for institutional or systematic discrimination. 28. The following principles can be said to apply to an assessment of the internal relocation alternative:-
(2) Internal relocation has no logical part to play in a decision if no well-founded fear of persecution is accepted or if it is found that the persecution feared has no Convention nexus; (3) A large number of decisions refer to the relocation option notwithstanding a finding that there is no well-founded fear of persecution on credibility grounds. In such cases, what the decision maker really means is, ‘if what you say is true, which is not accepted, you have given no credible explanation for coming to Ireland instead of moving elsewhere away from the claimed danger’. These ‘even if’ findings are not internal relocation alternative findings requiring adherence to Regulation 7 but are part of a general examination of whether an applicant has a well-founded fear of persecution. (4) Localised Risk: Where it is accepted that an applicant has a well-founded fear of persecution for Convention reasons but that fear is localised and confined to a particular area, it is relevant to consider the possibility of internal relocation as an alternative to refugee status. In such cases, Regulation 7(1) of the Protection Regulations requires the protection decision maker to identify (if only in general terms) a place or area within the country of origin where the risk of persecution does not exist and where the applicant might reasonably be expected to stay. Security from persecution or serious harm and meaningful state protection in the proposed area of relocation are key. (5) Where there is a well-founded fear of persecution and a general area has been identified as an alternative to refugee status then the protection decision-maker must pose two questions: (i) is there a risk of persecution / serious harm in the proposed area of relocation? If not, (ii) would it be reasonable to expect the applicant to stay in that place? (6) Absence of Risk: Where the persecution feared is of a general or public character such as a religious or tribal conflict or oppression by a political regime which controls a particular region or city, it will be necessary to consult appropriate up-to-date COI to determine whether the risk of persecution / harm is genuinely absent from the proposed area of relocation. In such cases the decision maker must engage in a detailed and careful enquiry as to the general circumstances prevailing on the ground in the proposed area, in accordance with Regulation 7(2). (7) If the persecution feared emanates from private or domestic actors, such as a threat from a particular family member, and a Convention nexus has been established, the protection decision-maker must make an objective, common sense appraisal of the reality of whether the risk faced by the applicant could be avoided by moving elsewhere, having regard to the applicant’s own evidence. (8) Reasonableness: It is not enough for the protection decision-maker to determine that the risk of persecution is absent from the proposed area of relocation. He or she must go on to consider whether it would be reasonable to expect the applicant to stay in that place, having regard to his / her personal circumstances and the general conditions prevailing on the ground, in accordance with Regulation 7(2) of the Protection Regulations. The reasonableness assessment is not concerned with assertions such as ‘I won’t know any one’, but rather with matters of substance such as whether the applicant is old, infirm, ill, has many small children or is without family support and other real issues. (9) The UNHCR Guidelines on International Protection: Internal Flight or Relocation Alternative (2003) indicate that consideration should be accorded to whether the applicant could lead a relatively normal life in the selected place of relocation without undue hardship, in the context of the country concerned. Unless there is objective evidence that the general circumstances prevailing in the proposed area are harsh – for example if the proposed area is the site of a conflict or a humanitarian crisis – there is in general no obligation to seek out a specific town or detailed information on economic and social conditions in the proposed location. However, if a specific objection is taken by the applicant to the location this objection must be examined. (10) Burden of Proof: There is a shared burden of proof. The protection decision-maker who accepts a well-founded fear of persecution but determines that refugee status is not appropriate because internal relocation is available must conduct a careful enquiry to identify a safe relocation area, having regard to up-to-date objective evidence about that area and also to the applicant’s own evidence in that regard. (11) Fair procedures: As a matter of fair procedures the proposed safe area should be notified to and discussed with the applicant to establish whether he/she could reasonably be expected to stay there. The applicant is obliged to cooperate, to answer truthfully, to provide all relevant information available to him / her to determine the reasonableness of the relocation area and to provide information on any personal factors which would make it unreasonable or unduly harsh for him / her to relocate rather than being recognised as a refugee; (12) No state is obliged to consider the internal relocation alternative even when the Convention-related persecution feared is confined to a particular part of the applicant’s state. States can recognise an asylum seeker as a refugee solely on the basis the criteria under Section 2 of the Refugee Act 1996, without ever turning to the relocation alternative. (13) The threshold to be reached before internal relocation is considered is high. The applicant would be recognised as a refugee but for the fact that he can safely relocate. The inquiry is commensurately careful. 30. Thus an ‘even if I am wrong’ finding which goes on to suggest internal relocation is not the equivalent of carefully exploring an antidote to a well-founded fear of persecution for Convention reasons and is often merely a facet of credibility. A reviewing Court must bear in mind that not every case which contains the ‘internal relocation’ phrase is subject to Regulation 7 principles. When a claim is rejected on credibility grounds and includes the statement that ‘even if I am wrong in my assessment of your credibility, there is in any event no good reason why you do not simply move and put a distance between you and the village elders / neighbours / spouse / mother in law’ as the case may be, it is not appropriate to characterise the credibility decision as an internal relocation decision as it is not an exploration of a relocation alternative to refugee status. Application to this Case 32. In addition, once he found that there was a well-founded fear and applied the relocation option, he erred in law in finding that the burden of proof lay on the applicant to show that it would not be reasonable to expect her to relocate. The existence of a shared burden of proof is discussed in the UNHCR Guidelines on International Protection: Internal Flight or Relocation Alternative (2003) at paras. 33-34:
34. On this basis, the decision-maker bears the burden of proof of establishing that an analysis of relocation is relevant to the particular case. If considered relevant, it is up to the party asserting this to identify the proposed area of relocation and provide evidence establishing that it is a reasonable alternative for the individual concerned.” (The Court’s emphasis) Failure to consider previous positive decisions Reliance on Undisclosed COI Conclusion 1. No explanation was given as to how the applicant would have this letter 2. It is unfortunate that she is referred to in parts of the Section 13 report as “he” and “him”. A similar typographical mistake occurs, however, at various places in her own written submissions dated the 19th September, 2008. 3. Her parents were said to be deceased and her unmarried sisters lived in Port Harcourt. 4. The photograph shows a terrace of at least four shops/dwellings which have been gutted by fire. 5. See e.g The Michigan Guidelines on the Internal Protection Alternative (First Colloquium on Challenges in International Refugee Law, University of Michigan [James C. Hathaway, director], 1999).
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