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Neutral Citation: [2015] IEHC 267 THE HIGH COURT JUDICIAL REVIEW [RECORD NO. 2010/1481/JR] BETWEEN N.B. AND O.C.B. (AN INFANT SUING BY HER MOTHER AND NEXT FRIEND N.B.) APPLICANTS AND
THE MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, THE REFUGEE APPEALS TRIBUNAL, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS JUDGMENT of Ms. Justice Faherty delivered on the 29th day of April 2015 1. This is a telescoped application for judicial review wherein the applicants seek an order of certiorari quashing the decision of the second named respondent made on the 20th October 2010, affirming the recommendation of the Refugee Applications Commissioner to refuse them refugee status, and notified to the applicants on the 5th November 2010. Background 2. The first named applicant is a Nigerian national born in Benin City, Edo State, on the 9th December 1980. The second named applicant was born in this State on the 10th March 2007. The first named applicant's account of events is as follows: From the age of three years she lived with her aunt in a named city in Nigeria, being orphaned at the age of three years after her parents were shot during a robbery. She received no formal education, having never been sent to school. Her aunt taught her to read and write by buying books for her. The first named applicant was kept in her aunt's home to work. When aged approximately 23 or 24, she began to learn the rudiments of hairdressing from a local salon. However, her aunt did not want her to do this and insisted she work for her as a housemaid. As a consequence, the first named applicant was not able to learn her skill on a daily basis but went whenever she could. However she was frequently beaten by her aunt when she was found working in the salon. 3. The first named applicant claims to have left Nigeria in February 2006 in the following circumstances: A friend of her aunt, J.O., told the applicant that she could arrange work for her in Ireland, either in a factory or as a hotel receptionist. Wanting a better life, and in view of her home circumstances, the first named applicant was happy to go to Ireland with J.O. She had no parents in Nigeria and was effectively a housemaid for her aunt and feared being put out of her aunt's home at any time, with a result that she would have nowhere to go. 4. Before she left Nigeria with J.O. she was made swear the "JuJu" by J.O. Part of her hair was taken and she was informed that if she said anything against J.O., she would die. J.O. made arrangements for her travel and the first named applicant duly travelled to Lagos with J.O. After two days, they travelled to Ireland via Amsterdam. On arrival in this State, she was taken to a house by J.O.'s boyfriend. She was then told by J.O. that she owed her €25,000 for bringing her to Ireland. From there on in, she was kept locked in the house and forced to work as a prostitute. She was often beaten by J.O. There were other girls in the house also, three of them in the same room as the first named applicant. Some of the men who came to the house did not wear condoms. As a result the applicant became pregnant and when J.O. found out she wanted the pregnancy terminated. The first named applicant was taken from the house for this purpose and while she and J.O. were travelling by bus, J.O. fell asleep, allowing the first named applicant to effect an escape. Following this, she was assisted by a woman who found her in a distressed state and who paid a taxi driver to take her to offices of ORAC. Procedural history 5. The first named applicant's asylum process commenced on the 19th February 2007, the day of her escape. An ASY1 form was completed on the 20th February 2007 and the first named applicant duly completed a questionnaire on the 1st March 2007. An ASY1 form was completed in respect of the second named applicant on the 2nd April 2007. The first named applicant claimed refugee status on the basis of being trafficked into Ireland and forced into prostitution in order to repay money to the trafficker. She underwent a section 11 interview on the 28th May 2007 and the report of the Refugee Applications Commissioner dated 29th May 2007 was notified to her on the 1st June 2007 denying the first and second named applicants refugee status. The Commissioner found:-
This report has had regard to section 11 (B) of the Refugee Act 1996 (as amended)" 7. The first named applicant duly appealed the Commissioner's recommendation and an oral hearing of her appeal before the Refugee Appeals Tribunal took place on the 12th July 2010. 8. The decision of the Refugee Appeals Tribunal affirmed the recommendation of the Refugee Applications Commissioner. The Tribunal's findings 9. The account of events given by the first named applicant was found to be credible, the Tribunal Member expressing her view in the following terms:-
10. The Tribunal Member went on to determine that state protection in Nigeria was available to the applicants and, additionally, they could avail of internal relocation. 11. As regards state protection, much of the Tribunal Member's focus was directed to the contents of a US Department of State Trafficking Report 2010. The Tribunal Member stated:-
14. In response to submissions made by the applicants and to country of origin information relied on by them as to the prevalence of police corruption and criminality undermining Nigeria's efforts to prevent trafficking, the Tribunal Member stated:- "The first half of this report details the arrest of police officers as part of trafficking gangs and other such incidents, but there is no indication that the Nigeria state tolerates the practices of such corrupt officers". 15. She went on to state:-
Corruption is a problem in Nigeria as it is in many states, but as previously indicated in the last few years the Nigerian state has made significant efforts to combat human trafficking and the conduct of a single policeman or a group of such persons does not indict an entire force. In a document from the Danish Immigration Service entitled "Allegations against NAPTIP June 2010" it is stated 'Concerning allegations that senior NAPTIP officials have been directly involved in trafficking UNHCR stated that it had no knowledge of irregularities- either corruption or involvement in trafficking- in NAPTIP 's management. UNHCR does not yet cooperate directly with NAPTIP, but a large number of international organisations and Embassies in Nigeria work closely together with NAPTIP, and it would be known if any senior officials in NAPTIP had been involved in trafficking. "
Considering the Applicant's age, the size and population of Nigeria, the fact that J.O. has not been in contact with the Applicant since February 2007, the fact that the Applicant is fleeing non-state actors and in light of the assistance available from NAPTIP and NGOs to persons in fear of traffickers, internal relocation to a large urban area such as Lagos or Abuja would not be unduly harsh for the Applicant, with her daughter, in all the circumstances. It is clear from the 2006 Regulations internal relocation is a complete answer to a claim for refugee status, as regulation 7 deals with it as a separate basis for refusing a claim...it follows therefore that the applicant herein is not a refugee. " 25. The statement of grounds set out the challenge in the following terms:-
(iv) The RAT erred in law and breached the principles of fair procedures and natural and constitutional justice in determining the Applicants' claim without having any appropriate regard to the further submissions and country of origin information submitted on the Applicants' behalf (v) The RAT erred in law and breached the principles of fair procedures and natural and constitutional justice in failing to adequately assess subject to the availability of state protection to the Applicant in Nigeria as it is obliged to do and the decision is therefore invalid. (vi) The RAT erred in law and breached the principles of fair procedures and natural and constitutional justice in failing to give reasons/adequate reasons for the decisions and in engaging in conjecture in the evaluation of the Applicants' claim. (vii) The RAT failed in the decision to properly assess the issue of internal relocation within Nigeria. (viii) The RAT failed in the decision to appropriately weigh in the balance country of origin information which was before it. (ix) The RAT erred in law and breached the principles of fair procedures and natural and constitutional justice in failing to have any adequate regard to the Notice of Appeal documents and the further supporting documentation submitted by the Applicants in support of their claims to be refugees and further failing to have any adequate regard to the findings arrived in the section 13 reports compiled by the RAT " 26. In oral submissions, the applicants' counsel distilled the challenge to three headings:-
2) The failure of the Tribunal Member to consider the issue of internal relocation in accordance with the provisions of Regulation 7(2) of the 2006 Regulations and; 3) The failure of the Tribunal Member to have regard to the provisions of Regulation 5 (2) of the 2006 Regulations. 28. Moreover, no account was taken of paragraph 3.10.1 of the UK Border Agency OGN on Nigeria (14th April 2009) which made reference to the "trafficking in women, most commonly to work as prostitutes overseas, is a widespread and increasing problem in Nigeria. Often victims of trafficking have sworn a blood oath to a "juju Shrine" and to the juju priest of their local community. The victims are most likely in debt to a madam who may have sponsored their travels abroad". This was the situation in which the first named applicant found herself. 29. The court was referred to para. 3.10.9 of the aforementioned report which stated, inter alia:-
30. It was also contended that no regard was paid to the Danish Immigration Services findings that "[r]e-trafficking is a very common phenomenon" and that it was "considered that returned victims of trafficking are vulnerable as they face serious dangers in Nigeria. Traffickers will persecute the returnees if they are still indebted to these traffickers and the victims are frightened, as they strongly believe that they are obliged by the oath that they took before leaving Nigeria. The victims fear for the consequences if they do not or cannot pay their debt, and at the same time, many victims are seriously traumatised, from their experiences abroad." This, counsel submitted, was the situation faced by the first named applicant. The Danish study had concluded that "returning victims are exposed to psychological and emotional violence/pressure from their families and it is common that victims who have returned before the debt has been paid are re-trafficked....Some victims may be excluded from their own family if they have returned or have been returned before the debt to the trafficker has been paid" and the report continued "that it would be difficult for a victim to relocate to another location in Nigeria in order to avoid reprisals from traffickers." 31. Moreover, while the Tribunal Member, in the context of the internal relocation assessment, referred to and quoted from the "Report on Fact Finding Mission to Nigeria- September 2007 and January 2008" (paragraphs 1.11-1.62) this was a selective process on her part. No reference was made to what was contained at paragraphs 1.83 and 1.84, as follows:-
It will also be easier for a woman to relocate if she has a relative or a friend in the new location who would be willing to support her in the initial phase. Married women may have two families to choose from when it comes to whom they turn to for protection and safety. If the woman has no one to receive or accommodate her she might end up living in the street ...The question of economic and social constraints facing a woman who has decided to relocate very much depends on the specific situation of the woman."
Counsel relied on the dictum of Clark J. in K.D. (Nigeria) v. Refugee Appeals Tribunal [2013] IEHC 481, quoted with approval by MacEochaidh J. in E.I & Ors v. The Minister for Justice Equality and Law Reform [2014] IEHC 27 as to the principles to be applied when assessing an internal relocation alternative. In particular, it was argued that the Tribunal Member failed the test set out in principle 7 when she dismissed the potential threat posed to the first named applicant by J.O., on the basis that J.O. was not an international trafficker and when she had not found the applicant in Ireland. Counsel also argued that the country of origin information available to the Tribunal Member highlighted the difficulties for the first named applicant, even without taking into consideration her particular personal circumstances. 32. Furthermore, the Tribunal Member, in concluding the first named applicant could relocate to Lagos or Ahuja, failed to consider whether it would be reasonable for her to relocate, as required under principle 8 of .K.D. Nigeria. 33. The Tribunal Member paid no regard to the first named applicant's particular circumstances, as she was required to do pursuant to reg. 7(2) of the European Communities (Eligibility for Protection) Regulations 2006. In particular, the first named applicant's lack of family in Nigeria and her limited education was not considered. Counsel contended that the numerous medical reports put before the Tribunal Member, which highlighted the first named applicant's vulnerability and the mental scars of having been trafficked, should have been considered in the context of what might happen to her in the future. Here, the first named applicant was in the position of someone with a small child, without family support and with her own particular vulnerabilities, as described in the various medical reports. 34. In the present case, a detailed consideration of what would happen to the applicant if she went to Lagos/Abuja was necessary but that was not carried out by the Tribunal Member. 35. In the context ofreg.5 (2) of the 2006 Regulations, counsel argued: the Tribunal Member accepted that the first named applicant was trafficked, thus her case was one where past persecution was established. Not only was this a significant indicator of possible future persecution, but even if the risk of future persecution was no longer present, the Tribunal Member was nevertheless obliged to consider the first named applicant's circumstances in accordance with reg. 5(2). 36. Specifically, the Tribunal Member did not make a finding as to the likelihood of the first named applicant suffering future persecution, as she was required to do. More importantly, the persecution suffered by the first named applicant was not considered in the context of the third limb ofreg.5 (2). It was submitted that the rationale for this third limb was that the personal circumstances of a person seeking refugee status could be so traumatic that even absent any present or future risk , it would be inhumane not to grant them refugee status. 37. Counsel referred to the supplemental submissions filed with the Refugee Appeals Tribunal on the 12th July 2010, where the following, inter alia, was stated:-
3.3 Past persecution is a serious indicator of a risk of future persecution. This is so even if the fear of future persecution is different inform from that already suffered. " The respondents' submissions 39. As a prelude, counsel for the respondent emphasised that there was no question but that the Tribunal Member accepted the first named applicant as credible and accordingly, the respondents refuted any suggestion that the Tribunal Member did not have regard to her personal circumstances. It was noted that the Tribunal Member went into considerable detail regarding the applicant's personal history. Furthermore, she considered all of the country of origin information on file and made reference to all of this information in the decision. It was accepted from the broad overview of the information which was before the Tribunal Member that all was not well in Nigeria, but all of the reports acknowledged steps were being taken regarding the combating of trafficking. 40. The respondents submitted that the Tribunal Member properly considered the question of state protection. A state's ability to protect an applicant is a crucial element in determining whether the stated fear of persecution is a well-founded one, and as such, is not an independent element of the definition. In this regard, the issue of state protection goes to the objective proportion of the test of fear of persecution: It is not enough to simply assert a subjective belief that protection is not available. In other words, international protection is only engaged when national or state protection is unavailable to an applicant. Counsel submitted that this was not to be considered in the abstract. The starting point for such a consideration was the presumption that a state (absent a complete a breakdown of the state) is capable of protecting its own citizens. This was of course a rebuttable presumption but one only successfully rebutted by clear and convincing evidence of the state's inability to so protect. Furthermore, the primary burden of proof in a case of this nature was on the first named applicant. 41. The applicants had provided no evidence to rebut the presumption that their country of origin could protect them. The Nigerian authorities had put in place legislative and other active steps to combat trafficking. Furthermore, the applicants did not make the case that the decision of the Tribunal Member on the adequacy of state protection was irrational; at best the case made, which was not accepted, was that the Tribunal Member failed to have regard to certain country of origin information but, that was not the case, the respondents contended. 42. Counsel submitted that it was not for this Court to weigh the evidence; that was the sole preserve of the Tribunal Member. In the instant case, the Tribunal Member referred to both sides of the argument as to the adequacy of state protection in Nigeria and found that such protection was available to the applicants. The Tribunal Member set out the relevant case law and concluded that the facts in the present case were similar to what had been decided in the UK case of P.O. (Trafficked Women) Nigeria CG [2009] UKAIT 00046 where the same country of origin information as was before the Tribunal Member in this case was considered. 43. On the question of internal relocation, the respondents argued that there was no merit in the arguments made by the applicants that the Tribunal Member failed to take account of the first named applicant's personal circumstances. In the course of a lengthy analysis, the Tribunal Member outlined those circumstances and found that the first named applicant had suffered. The Tribunal Member went on to detail the potential problems if the first named applicant were to return to Nigeria but concluded that she would not be at risk from J.O. in Nigeria. It was submitted that that was a conclusion open to the Tribunal Member on the evidence. Furthermore, the Tribunal Member tailored the question of internal relocation to the first named applicant's circumstances. In doing so, she took account of all of the first named applicant's evidence and the medical reports and noted the available country of origin information. Counsel referred to the dictum of MacEochaidh J. in E.I v. Minister for Justice Equality and Law Reform, as follows:-
45. With regard to the applicant's arguments on reg. 5 (2), while it was correct to say that the Tribunal Member did not formally make a finding of past persecution, she had believed the first named applicant, therefore it was not tenable for the applicants to assert that the Tribunal Member did not consider past or likely future persecution or that she did not have regard to medical evidence. Considerations State Protection 46. The ability of a decision-maker to assess the efficacy of State protection (or indeed internal relocation) for a protection applicant necessarily involves, inter alia, having recourse to country of origin information. The first issue to be determined is whether the country of origin information which was before the Tribunal Member was properly assessed. 47. On the issue of state protection, I am of the view that the applicant's have not made out a persuasive case that the Tribunal Member failed to have regard to country of origin information or that she was selective in the manner in which it was addressed. Counsel for the applicant cited the failure of the Tribunal Member to have regard to the contents of an UNHCR 2009 Country Report on Nigeria, which, he asserted, painted a less rosy picture than the 2010 US Department of State Trafficking Report, quoted extensively by the Tribunal Member. It does not appear to be the case that the contents of the UNHCR Report were specifically referred to by the Tribunal Member in the course of the decision. However, I find that nothing particular turns on this for the following reasons. 48. The Tribunal noted that "the general thrust of information suggests that state protection is available to victims of trafficking". That conclusion was available to the Tribunal Member on the evidence. In coming to her conclusion, she had regard, inter alia, to the contents of the US State Department Report and to the contents of the UK Border Agency Report of January 2010. The latter report recognised that although prohibited by law, trafficking was practised in Nigeria and was, "a serious problem". That observation notwithstanding, and similarly to the US State Department Report of 2010, the UK Report goes on to outline the efforts being made by the Nigerian authorities to combat trafficking. To my mind, the UNHCR report, relied on by the applicants, does likewise. The latter document does not paint so different a picture, compared to the other information which was before the Tribunal Member, such as to persuade this Court that the Tribunal Member's failure to specifically refer to it in the context of her assessment on state protection vitiates the decision she made. With regard to the argument that significant portions of the UK January 2010 Report (which referred to a 2008 Danish Immigration Service Fact Finding Mission Report) were not referred to by the Tribunal Member, I find no merit in this argument since at page 25 of the decision, the Tribunal Member makes specific reference to the Danish Report and effectively discounts it for reasons which are stated in the decision. 49. In the course of his submissions, the respondents' counsel referred the court to O.A.A v. Minister for Justice Equality and Law Reform [2007] IEHC 169 where Feeney J. stated, inter alia,:-
'I agree with La Forest J, that subject to exceptional cases, the fact that the power of the State to provide protection to its nationals is a fundamental feature of sovereignty and, the fact that the protection forwarded by refugee status is 'a surrogate coming into play where no alternative remains to the claimant', renders it both rational and just for a requested State to presume, unless the contrary is demonstrated by 'clear and convincing proof' on the part of the Applicant for refugee status, that the state of origin is able and willing to provide protection to the Applicant from persecution, even if at a lesser level then the requested State. '" Irrespective of the burden on the applicants to displace the presumption referred to in the above quoted case law, I am satisfied that the evidence which was before the Tribunal Member in the present case, both in terms of testimony from the first named applicant and country of origin information was such that the Tribunal Member could reasonably and rationally conclude that state protection would be available to the applicants. Accordingly, I am not persuaded that a challenge to the manner in which the finding on state protection was arrived at has been made out. Internal Relocation 50. The starting point for the court's review of the Tribunal Member's finding that internal relocation was an option for the applicants is principle 5 of the principles set out in K.D. (Nigeria):
54. However, the absence of risk is only one aspect of the necessary assessment pursuant to reg.? (2). The question remains as to whether the Tribunal Member's finding that the applicants could relocate to Lagos or Abuja met the "reasonableness" test set out in principle 8 in K.D. (Nigeria), as follows:-
58. Furthermore, the Tribunal Member cited Lagos or Abuja as possible relocation centres for the applicants, but nowhere in the decision is there an informed assessment as to how the first named applicant's medical and psychological difficulties would be accommodated in those cities. Having regard to the particular circumstances of this case, the reference to the first named applicant being able to access medical facilities and counselling in "shelters" does not to my mind equate with the careful enquiry test mandated by reg.7(2), as enunciated in K.D. Nigeria. Moreover, the country of origin information quoted and relied on by the Tribunal Member referred not only to the sources of the physical protection and assistance available for the first named applicant, it also highlighted the potential limitations of the available support in situations where there was an absence of family support or economic means. While the Tribunal Member emphasised the positive aspects of the available supports in concluding that the first named applicant, on her return to Nigeria, "could be met at the airport ...and taken by NAPTIP to a shelter.....and would also have access (sic) the relevant NGOs who assist women fleeing the threat of traffickers and NAPTIP who assist victims of trafficking", I do not perceive any substantive weighing exercise having been carried out in the context of the first named applicant's situation as a single mother with limited education and without family support and with the mental scarring and psychological difficulties, including on occasions suicidal ideation, as described in the medical and other reports. Of course, the weight to be ascribed to all of the foregoing factors was a matter for the Tribunal Member but there is no indicator on the face of the decision that that exercise was conducted. The first named applicant's circumstances merited such an approach and the absence of same vitiates the finding that internal relocation was a viable option for the applicants. Regulation 5(2) 59. I turn now to the applicant's argument that the Tribunal Member erred in not making a finding pursuant to reg. 5 (2) of the 2006 Regulations, which provides: "The fact that a protection applicant has already been subject to persecution or serious harm, or to direct threats of such persecution or such harm, shall be regarded as a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated, but compelling reasons arising out of previous persecution or serious harm alone may nevertheless warrant a determination that the applicant is eligible for protection. " 60. It is noted that the Tribunal Member did not in fact make an explicit finding of past persecution in this case. However, the first named applicant was found by the decision-maker to be the victim of trafficking and she found a Convention nexus in that the applicant, as a victim of trafficking, could come within the rubric of a particular social group. It was argued that the Tribunal Member did not make a finding as to the likelihood of future persecution. On this particular point, I am satisfied that the Tribunal Member's obligation to consider whether the first named applicant might suffer future persecution was fulfilled by the Tribunal Member's analysis as to the likelihood of the first named applicant being at risk from J.O. in the future. 61. As regards the third limb ofreg.5 (2), in S.N v. Minister for Justice Equality and Law Reform [2011] IEHC 451 Hogan J. stated:-
"In the present case, however, Article 4(4) has been fully transposed verbatim by Regulation 5 (2) but the Minister appears to have gone further by the inclusion of the additional wording. The common parts of Regulation 5 (2) and Article 4(4) could be paraphrased as follows: (i) A claim to face a real risk of suffering serious harm must be regarded as having substantial grounds if the applicant establishes as a fact that he or she has already been subject to serious harm or to direct threats of such harm; (ii) The claim need not, however, be so regarded if there are good reasons to consider that such serious harm or threats will not be repeated. "
32. Notwithstanding the difficulties presented by the additional wording, there cannot be any doubt, in the Court's view, that the additional wording can only be construed as intending to permit some limited extension to the conditions of eligibility prescribed in Article 4(4) designed to allow some latitude in according subsidiary protection based exclusively upon the fact of previous serious harm when it is accompanied by compelling reasons. It is relevant to bear in mind that "serious harm" is defined as including "inhuman or degrading treatment" ....It is possible therefore to envisage a situation in which an applicant had escaped from an incident of mass murder, genocide or ethnic cleansing in a particular locality. Even if the conditions in the country of origin had so changed that no real risk now existed of those events happening once again, the trauma already suffered might still be such as to give rise to compelling reasons for not requiring the applicant to return to the locality of the earlier suffering because the return itself could be so traumatic as to expose the applicant to inhuman or degrading treatment.
43. The evaluation of this evidence and the consideration of this counter exception is, of course, entirely a matter for the Minister in the first instance. But consider it he must. Yet an examination of the file does not disclose that the Minister ever gave any consideration to the counter-exception in the original decision. This is a further reason why the decision cannot be allowed to stand."
64. There is no definition in reg. 5 (2) of what constitutes "compelling reasons"; thus the circumstances of any particular case will fall to be considered by the decision-maker in order to determine whether the threshold has been met. To my mind, it is axiomatic that the first named applicant's circumstances, having been a victim of trafficking and forced to work as a prostitute for a sustained period, with the resultant medical and psychological consequences as evidenced by the medical reports, were such as to warrant consideration as to whether the "counter exception" conditions were met. Moreover, I echo the words of MacEochaidh J. in K.B. v. The Minister for Justice Equality and Law Reform:-
66. While this court has found the Tribunal Member's assessment that state protection was available for the applicants to be lawful, this cannot sustain the decision in view of the other findings of this court, in particular, the failure to conduct the reg.5 (2) inquiry. Thus, for the reasons set out above, I formally grant leave to the applicants and given that these are telescoped proceedings, I will make an order quashing the decision of the second named respondent and will make an order remitting the matter for a de novo consideration before a different member of the Refugee Appeals Tribunal. |
